Ashford and Thistle Securities Llp v. Kerr [2006] ScotSC 63 (01 September 2006)

Ashford and Thistle Securities Llp v. Kerr [2006] ScotSC 63 (01 September 2006)

The notice of irritancy served by the pursuers was invalid as it failed to comply with section 4 of the 1985 Act by not specifying the basis on which pre-entry arrears were owed to the new landlord, and the pursuers failed to aver entitlement to those arrears. A successor landlord cannot enforce irritancy for sums not properly intimated or due to them.

Citation
[2006] ScotSC 63
Parties
Pursuer and Respondent: Ashford and Thistle Securities LLP; Defender and Appellant: Maureen Kerr
Jurisdiction
Scotland
Judgment Date
01 September 2006
Procedural Posture
Appeal / Judgment on Appeal
Outcome
appeal sustained, action dismissed
Legal Topics
Irritancy of Lease, Notice Requirements, Assignation of Rents, Variation of Lease, Successor Landlord Rights
Landlord and Tenant Property Law Contract Law Irritancy of Lease Notice Requirements Assignation of Rents Variation of Lease Successor Landlord Rights

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Parties

Ashford and Thistle Securities LLP

Pursuer and Respondent

Maureen Kerr

Defender and Appellant

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether a successor landlord can serve a valid notice of irritancy based on arrears allegedly due to a predecessor without proper intimation or basis for entitlement to those arrears
  2. 2 Whether the notice of irritancy complied with section 4 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985
  3. 3 Whether a verbal variation of the lease was binding on a singular successor

Ratio Decidendi

The notice of irritancy served by the pursuers was invalid as it failed to comply with section 4 of the 1985 Act by not specifying the basis on which pre-entry arrears were owed to the new landlord, and the pursuers failed to aver entitlement to those arrears. A successor landlord cannot enforce irritancy for sums not properly intimated or due to them.

Court Disposition

appeal sustained, action dismissed

Orders

  • Sheriff's interlocutor of 19 December 2005 recalled
  • Second plea-in-law for defender sustained