Postel Properties Ltd v Miller and Santhouse Plc
| Jurisdiction | Scotland |
| Judgment Date | 09 July 1992 |
| Date | 09 July 1992 |
| Court | Court of Session (Outer House) |
Outer House of the Court of Session
Before Lord Sutherland
Scots leases - decree to trade - incompetent
It was incompetent to pronounce decree ordaining tenants to occupy and trade from a shop of which they had taken a lease because such an order was too vague.
Lord Sutherland, sitting in the Outer House of the Court of Session, so held, dismissing an action of specific implement and damages brought by Postel Properties Ltd against Miller and Santhouse plc.
Mr Colin Sutherland, QC and Mr Robert Skinner for the pursuers; Mr Arthur Hamilton, QC and Mr Gilmour Ivey for the defenders.
LORD SUTHERLAND said that the pursuers as landlords under a lease of shop premises sought decree ordaining the defenders as tenants under the lease to occupy the premises and trade therefrom. The lease provided that "the tenant shall occupy the premises…" and obliged the tenants "To keep and use the premises solely as retail premises".
The tenants averred that they had initially traded from the premises but had then closed the shop because they had been trading at a loss. They had been unable to find replacement tenants.
In Grosvenor Developments (Scotland) plc v Argyll Stores Ltd (1987 SLT 738), landlords had sought to inderdict against their tenants from ceasing to continue to occupy and use supermarket premises, but it had been held, inter alia, that the obligation sought had been too general to be enforced by specific implement.
The obligation to occupy and use premises and carry on a business therein involved continuous acts of management in which multifarious actions were required and it also required decisions over a period of 42 years as to what at any one time was commonly sold in supermarkets. The tenants would have had difficulty in deciding at any given time whether they were acting in breach of it or not.
An order from the court had to be precise and specific so that the defenders knew throughout the period when the order was enforced exactly what they were required to do and what they were prohibited from doing.
Moreover, in the present case the tenants had argued that all that the lease said was that the premises had to be kept and used solely for the purpose of retail trade, which was purely a restrictive clause and did not provide any positive obligation.
In reply, counsel for the pursuers argued that specific implement was a normal remedy which should be granted...
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Highland & Universal Properties Ltd v Safeway Properties Ltd (No.2)
... ... Ltd 1995 SLT 1181 Patoner Ltd v Lowe (1985) EGLR 540 Postel Properties Ltd v Miller & Santhouse plc 1993 SLT 353 Retail Parks Investments Ltd ... ...