A recent decision by the Sheriff Principal of Lothian and Borders has clarified the applicability of notices provisions in a lease to "pre-irritancy" notices (Edinburgh Tours Limited -v- Singh).
The Facts
The pursuers sublet commercial premises to the defender. The defender fell in to arrears. On the basis of the defender's failure, the pursuers issued a "pre-irritancy" notice by recorded delivery. This is a notice required by The Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 as a prerequisite to terminating a commercial lease. The notice required payment within 14 days and warned that if payment was not made the pursuers would have the right to terminate the lease. Payment was not made. The pursuers accordingly sent a further notice purportedly terminating the lease.
The defender refused to remove; consequently the pursuers raised an action for recovery of possession (aka ejection). The defender's position was that the lease had not been validly terminated as the pre-irritancy notice was not received by him.
The question before the court was "was the pre-irritancy notice effective if it wasn't received?"
In ordinary circumstances the answer to this question would be "no". However, the 1985 Act provides that notices will be effective if sent by recorded delivery, whether or not they were received. The issue in this case arose because the lease provided:-
"any notice sent by recorded delivery post in accordance with the foregoing provisions shall be deemed duly served at the expiry of two business days after the date of posting unless the contrary can be proved (emphasis added)." .
The pursuers' position was that the pre-irritancy notice was a statutory notice and not a notice issued under the lease. Accordingly, in terms of the legislation, as long as the notice was sent by recorded delivery that was sufficient, regardless of receipt.
The defender argued that the lease governed the parties' rights and obligations and that the 1985 Act provided only the minimum requirements for a pre-irritancy notice. Essentially, the parties had agreed to innovate upon these minimum requirements and should accordingly be bound.
Decision
The Sheriff Principal considered that the lease was the document from which the parties derived their rights and obligations. The statutory provisions imposed additional requirements, rather than supplanting the lease terms. It was appropriate to read the statutory provisions and contractual provisions together and construe the requirements of service in that context.
As such, the notice would be effective unless the defender could prove that it wasn't received.
Comment
Whilst the case does turn on its own facts, it serves as a warning to take cognisance of lease terms when serving notices of all types.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
