Sears Properties Netherlands BV v Coal Pension Properties Ltd [2000] ScotCS 103 (11 April 2000)

Sears Properties Netherlands BV v Coal Pension Properties Ltd [2000] ScotCS 103 (11 April 2000)

Clause 6.5(b) of the Sub-lease does not confer a jus quaesitum tertio on the defenders; the defenders have no absolute right of veto over assignation of the sub-lease. By implication, Clause 3(12)(b) of the Lease requires the landlord's consent to assignation of a sub-lease, but such consent cannot be unreasonably withheld. The pursuers have title to sue as parties to both the Lease and Sub-lease.

Citation
[2000] ScotCS 103
Parties
Pursuer: Sears Properties Netherlands BV; Defender: Coal Pension Properties Limited
Jurisdiction
Scotland
Judgment Date
11 April 2000
Procedural Posture
Commercial Lease Dispute / Outer House, Court of Session, Opinion on Preliminary Pleas
Outcome
Decree de plano granted in respect of the second conclusion; defenders' plea of no title to sue rejected.
Legal Topics
Sub Leases, Assignation of Lease, Jus Quaesitum Tertio, Reasonableness of Withholding Consent, Privity of Contract
Property Law Contract Law Landlord and Tenant Law Sub Leases Assignation of Lease Jus Quaesitum Tertio Reasonableness of Withholding Consent Privity of Contract

Case Brief

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Parties

Sears Properties Netherlands BV

Pursuer

Coal Pension Properties Limited

Defender

Procedural Posture

Commercial Lease Dispute / Outer House, Court of Session, Opinion on Preliminary Pleas

Legal Issues

  1. 1 Whether the defenders (landlords) have an absolute right of veto over assignation of a sub-lease by virtue of a jus quaesitum tertio under Clause 6.5(b) of the Sub-lease
  2. 2 Whether the defenders unreasonably withheld consent to assignation of the sub-lease to Adams Childrenswear Limited
  3. 3 Whether the pursuers have title to sue regarding the assignation of the sub-lease

Ratio Decidendi

Clause 6.5(b) of the Sub-lease does not confer a jus quaesitum tertio on the defenders; the defenders have no absolute right of veto over assignation of the sub-lease. By implication, Clause 3(12)(b) of the Lease requires the landlord's consent to assignation of a sub-lease, but such consent cannot be unreasonably withheld. The pursuers have title to sue as parties to both the Lease and Sub-lease.

Court Disposition

Decree de plano granted in respect of the second conclusion; defenders' plea of no title to sue rejected.

Orders

  • Decree de plano granted in favour of the pursuers on the second conclusion.
  • Case put out By Order for further procedure regarding averments on the financial standing and probity of Adams Childrenswear Limited.