Case Law Update Property Litigation Association – Scotland Ewen D Brown, Advocate 31 January 2019

Law v Robertson Construction Eastern Limited - 2018 SC 428 Facts Missives entered into 2008 Obligation to deliver overage agreement Action raised 2016 Question Did the obligation relate to land meaning it had not prescribed? Decision Obligation did not relate to land Takeaway Whether obligation relates to land depends on the terms of the obligation

Gateway Assets Limited v CV Panels Limited - [2018] CSOH 48 Facts Letter sent to exercise a break option Sent by ordinary post to landlord’s managing agent Agent contended notice not received Questions Had the notice been sent? If sent, was the tenant entitled to the evidential presumption that it arrived? Were the the terms of the notice effective? Was service on the landlord’s agent effective?

Gateway Assets Limited v CV Panels Limited cont’d Decision Not sent The deemed service provisions of the lease did not prevent the operation of the evidential presumption that the letter arrived Presumption would have been rebutted having regard to evidence Terms of notice would have been effective Service on the landlord’s managing agents would have been effective in circumstances Takeaway Obiter comments on effect of deemed service provisions, proving service, construction of notices and service on agents Note - Our Generation Limited v Aberdeen City Council - [2018] CSOH 124

Iftikhar v CIP Property (AIPT) Limited – [2018] CSIH 44 Facts Action to enforce articles of roup by purchaser Requirement purchaser to provide KYC information and source of funds Seller rescinded for failure to provide information re source of funds Question Were the sellers entitled to rescind? Would proceeding with the transaction have been unlawful having regard to the Money Laundering Regulations 2007?

Iftikhar v CIP Property (AIPT) Limited cont’d Decision Reasonable period should have been given to purchaser to provide further information Seller not entitled to rescind Proceeding with transaction not unlawful Takeaway If a party has not performed their obligation consider whether there is a time limit for performance and if not, give ultimatum

Ashtead v Granton Central Developments Limited (No1) – [2018] CSOH 107 Facts Pursuer tenant, defender landlord Parties unable to agree rent at rent review Disagreement about the construction of lease re the leased subjects and how assumptions and disregards in rent review clause should be interpreted Question Whether the court had jurisdiction to rule on construction?

Ashtead v Granton Central Developments Limited (No1) cont’d Decision Matter of construction Court retained jurisdiction Takeaway Clear wording required to oust the jurisdiction of the court Compare Cine-UK Limited v Union Square Developments

Ashtead v Granton Central Developments Limited (No2) – [2019] CSOH 9 Question Effect of disregard of “any buildings or other constructions erected on and any improvements carried out to the subjects of lease” Note - buildings on site were there at the start of the lease Decision Contractual interpretation Clear intention to disregard all buildings and improvements irrespective of when carried out

Cine–UK Limited v Union Square Developments Limited – [2019] CSOH 3 Facts Pursuer tenant, defender landlord of multiplex in Aberdeen Unable to agree revised rent – fell to be determined by expert Definition of expert included provision that their determination was to be “final and binding on the parties hereto both on fact and law” Question Whether the tenant could challenge the expert’s determination of the rent on the basis she had erred in law? Decision Contractual interpretation No ambiguity in the finality clause Takeaway Clear wording can oust the jurisdiction of the court

Other cases JH&W Lamont of Heathfield Farm v Chattisham Limited - 2018 SC 440 (IH) Commodity Solution Services Limited v First Scottish Searching Services Limited - 2018 SLT (Sh Ct) 117 Anwar v Britton - [2018] SAC (Civ) 27

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