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

2. 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

3. 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?

4. 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

5. 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Seller rescinded for failure to provide information re source of funds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?

6. 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

7. 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?

8. 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

9. 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

10. 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

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

12. QUESTIONS