The Limits of Statutory Personal Bar: Leases and the Requirements of Writing (Scotland) Act 1995
Author | |
Date | 01 January 2016 |
Pages | 66-71 |
DOI | 10.3366/elr.2016.0322 |
Published date | 01 January 2016 |
[2014] CSOH 122, 2015 SCLR 171.
provides further clarity on when section 1(3) and (4) of the Requirements of Writing (Scotland) Act 1995 can be used in relation to leases, the status of the common law rules ofThe pursuer was the owner and landlord of the Gyle Shopping Centre, Edinburgh. The defender was one of two anchor tenants of the centre. The landlord had entered into an agreement for lease with a third party, Primark, which involved the construction of a new building that would be partially constructed on the existing car parking areas. The lease between the pursuer and the defender granted to the defender
The lease made provision for a management committee, made up of representatives appointed by the Represented Parties. Evidence was led that, at a number of committee meetings, reference had been made to the Primark development, including the fact that it required an enlarged unit which would use up some car parking spaces. The minutes of the meetings noted that plans had been provided showing the extent of the reconfiguration of the centre, together with the fact that planning approval had been obtained for the development. No objection was raised to the development at any of the meetings and, indeed, the defender's and Morrisons' representatives had endorsed the development. The minutes had been signed by an employee of the defender “for and on behalf of” the defender. The minutes stated: “I confirm I have read the minutes of the above date and that they are an accurate reflection of the meeting. The proposals made therein are hereby approved”.
To progress the Primark development the pursuer had sought and obtained planning permission and relocated a number of tenants within the centre at an estimated cost of £1 million. The pursuer wrote to the defender noting that approval for the development had been obtained via the management committee meetings and enclosed a deed of variation for signing. The defender, in response, drew attention to the formalities specified in the lease for alteration of the shared areas and noted that the defender did not agree to the proposed alterations to the car park. The pursuer contended that it had entered into a contract with the defender or that the defender had undertaken a unilateral obligation for the variation and partial extinction of the defender's real rights so as to permit the development. The agreement or obligation was said to have been entered into verbally by the defender's representatives at committee meetings and by the signing of minutes of those meetings. The pursuer averred that it had acted in reliance on the contract or unilateral obligation, with the defender's knowledge and acquiescence, and that as a result the lease had been varied.
The pursuer's position as set out at para 3 suggests that the pursuer's claim is based on there being a contract or unilateral obligation to vary the lease. The report later makes clear that the pursuer...
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