Gyle Shopping Centre General Partners Ltd v Marks and Spencer Plc [2014] ScotCS CSOH_59 (25 March 2014)

Gyle Shopping Centre General Partners Ltd v Marks and Spencer Plc [2014] ScotCS CSOH_59 (25 March 2014)

The defender's rights in the Shared Areas are real rights, enforceable against the pursuer as successor in title. The proposed construction and reallocation of Shared Areas would constitute a variation of the lease, which cannot be effected by Management Committee approval or by the signed minutes relied upon by the pursuer. Such variation requires formal agreement in probative writing and registration, as specified in the lease and by statute. The Management Committee had no power to approve permanent changes to the Shared Areas or to vary the lease in this manner.

Citation
[2014] ScotCS CSOH_59
Parties
Pursuer: Gyle Shopping Centre General Partners Ltd as trustee for and general partner of Gyle Shopping Centre Limited Partnership; Defender: Marks and Spencer Plc
Jurisdiction
Scotland
Judgment Date
25 March 2014
Procedural Posture
Civil / Debate on Relevancy (interim Judgment, Further Procedure Required)
Outcome
No final decree; case put out By Order for further procedure on personal bar issue; expenses reserved.
Legal Topics
Variation of Lease, Real Rights in Land, Shared Areas in Shopping Centres, Requirements of Writing, Management Committee Powers
Property Law Landlord and Tenant Law Commercial Leases Variation of Lease Real Rights in Land Shared Areas in Shopping Centres Requirements of Writing Management Committee Powers

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Parties

Gyle Shopping Centre General Partners Ltd as trustee for and general partner of Gyle Shopping Centre Limited Partnership

Pursuer

Marks and Spencer Plc

Defender

Procedural Posture

Civil / Debate on Relevancy (interim Judgment, Further Procedure Required)

Legal Issues

  1. 1 Whether the defender's rights in the Shared Areas constitute real rights enforceable against the pursuer as successor in title
  2. 2 Whether approval by the Management Committee constituted a valid variation of the lease permitting construction of a new building on Shared Areas
  3. 3 Whether the lease permitted the proposed construction and reallocation of Shared Areas without formal variation

Ratio Decidendi

The defender's rights in the Shared Areas are real rights, enforceable against the pursuer as successor in title. The proposed construction and reallocation of Shared Areas would constitute a variation of the lease, which cannot be effected by Management Committee approval or by the signed minutes relied upon by the pursuer. Such variation requires formal agreement in probative writing and registration, as specified in the lease and by statute. The Management Committee had no power to approve permanent changes to the Shared Areas or to vary the lease in this manner.

Court Disposition

No final decree; case put out By Order for further procedure on personal bar issue; expenses reserved.

Orders

  • Case to be put out By Order to discuss further procedure regarding personal bar.
  • No decree granted at this stage.