One of the areas where early legal advice can really pay off is in the area of leases; both commercial and residential.
Scots Law still differs from English law in material respects as regards property law and one of the hidden traps in Scotland is in the area of leases and the doctrine of “tacit relocation” or silent renewal.
The costly horrors involved in not knowing about that are served a useful reminder in a Livingston Sheriff Court action, where the tenants, perhaps misunderstanding that if a commercial lease says it will end on a given date, presumed that to reflect Scots law. The costly lesson learned was otherwise. They should have given due notice to terminate. Their failure to do so cost them over £75,000 being the equivalent of a year’s rent. No evidence was required for the court to find them liable in that sum by a judgement issued in May 2017.
The court upheld and enforced the doctrine of tacit relocation. However seemingly arcane and unfair it is well-known to Scots law. The court accepted that it is an anomaly of Scots law that “the mere expiry of the agreed duration of a lease does not bring the lease to an end. In every lease there is an implied agreement that whatever its stipulated period may be, that period may be extended by the tacit consent of the parties. If neither party has given notice of his intention to terminate the lease, the parties are by their silence presumed to have agreed that the lease is to be prolonged. Tacit relocation then operates to extend the period of the lease”
So this recent case is a timely reminder of the potential pitfalls open to both parties in a lease and the arguments that can be made to court. Further arguments can also arise if the notices given are not in correct form, served on the correct party, served in the correct manner, and served in time, but without any notice the issue of tacit relocation is to the fore.
The concept applies equally to residential tenancies albeit potentially of lesser significance when the Scottish Parliaments new private rental legislation is brought into force.
At Jackson Boyd we have experience in dealing with landlord and tenant disputes. To discuss your dispute with us in more detail contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.
