Knowledge

Last month’s edition of Open Door looked at a recent decision from the High Court in England on the remedies available to landlords under insolvency legislation in England against tenants who enter into administration.  Similarly, in the recent case of Marinus Charles Maris and Mrs Roxanne Maria Sloane-Maris v Banchory Squash Racquets Club Limited, the Court of Session in Scotland has looked at the statutory arrangements north of the border in relation to irritancy,

The Government published its consultative draft Climate Change Bill on 13 March 2007.  The deadline for responses is 12 June 2007 with a full Climate Change Bill set to be published in the Autumn. The Legislation is to be centred around 4 pillars:

The Companies Act 1985 prohibits a company from giving financial assistance for the purposes of an acquisition of its own shares or those of its holding company. 
The definition of “financial assistance” is circular and has been interpreted broadly to include a series of activities from direct loans to a purchaser by the target company, to the target company reducing or discharging a liability incurred by a purchaser, or a subsidiary of the target company guaranteeing funds lent to the purchaser (and other similar arrangements). 

From 6 April 2007, section 293 of the Companies Act 1985, setting the age limit for directors of public companies and subsidiaries of public companies at 70 years will be repealed.  Companies subject to this section may wish to check their Articles and take steps to deal with the change.

The law relating to keep open clauses has been reasonably well settled, since the decision in Highland and Universal Properties Ltd v Safeway Properties Ltd in Scotland, and the contrasting English position, determined in the case of Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd.

The repairing obligation is one of the most essential components of a full repairing and insuring commercial lease for both landlord and tenant.  For the landlord, it is the means by which the condition and value of his property may be preserved, and for the tenant, it is likely to involve one of its most significant liabilities under the lease, after payment of the rent. The precise terms of the wording of the obligation is therefore one of the most carefully negotiated elements of the lease, and also one which is a regular subject of litigation.

Irritancy in Scotland also under Scrutiny

The House of Lords decision in a recent case (Celtec v Astley) has important implications on the use of secondment arrangements in a potential TUPE transfer situation. In 1990 the Government outsourced their vocational training to a new organisation (C) and seconded a number of civil service employees to C. Three years later the seconded employees were given the option of resigning from the civil service and undertaking employment with C, or being reallocated to a different civil service department. The employees chose to take up employment with C.

In the second of this regular slot, we explain the difference between Green and White paper. Should you wish any parliamentary procedure or terminology explained please speak to your usual Shepherd and Wedderburn contact.

Access rights

Often, the first thing that springs to mind when a landlord is faced with a defaulting tenant is to irritate the lease, get the offending tenant out, and re-let the premises. While this may turn out to be the best course of action, the recent Court of Session case of Marcus Dean t/a Abbey Mill Business Centre v Tony Russell Freeman serves as a reminder to landlords to review the situation before serving a notice to irritate to the tenant, as otherwise they may well find that the effect of the notice is not what they had intended.

It may sound trite to suggest that you should “say what you mean” in missives for the purchase of property, but the recent Sheriff Court decision of Park Lane Developments (Glasgow Harbour) Limited v Jeffrey Jesner illuminates the dangers of ambiguous drafting.

As the number of recent cases appearing before the courts relating to parking issues and disputes bears out, having the ability to park near your property is something of an emotional issue, and one on which people are quite prepared to litigate. Several cases over the last two or three years have considered whether or not a servitude right of parking could be said to exist, but in the recent Sheriff Court case of Holms v Ashford Estates Limited, title to the parking space in question had actually been given, and a right of access to the space granted.

A recent Outer House case, Burgerking Ltd v Rachel Charitable Trust considered whether it was reasonable for a landlord to refuse consent to a sublease where the tenant proposed to pay the subtenant an excessive reverse premium. Lord Drummond Young held that where it is proposed that a reverse premium will be paid to a subtenant and the premium is “greatly beyond” what could be said to be compensation for the difference between the passing rent and the market rent, it is not unreasonable for a landlord to refuse consent to the sublease.

Background

The Scottish Executive has published practical guidance for
professionals on the application of the provisions of the Tenements
(Scotland) Act 2004, and certain of the provisions of the Title
Conditions (Scotland) Act 2003 in relation to the management and
maintenance of common property.  Although primarily aimed at
professionals advising owners of flats in tenements, it will also be of
value to those dealing with commercial tenement properties, or those in
mixed use, as the Tenements (Scotland) Act applies to all tenemental

The recent case of Wiles v. Bothwell Castle Golf Club illustrates the fact that, in Scotland, it is not only pure public bodies that are subject to judicial review.  In particular, sporting bodies acting may also find themselves legally challenged by their members.

The recently reported case of Jones v Wood GWD 2005 17-304
concerned an action for rectification of a disposition which contained
an inaccurate plan, under the provisions enabling rectification of
defectively expressed documents contained in sections 8 and 9 of the
Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.

On 15 February 2005 the European Court of Justice (the “EJC”) delivered its judgment on the long running Tetra Laval case. The EJC dismissed the European Commission’s (the “Commission”) appeal against the judgment of the European Court of First Instance (the “CFI”). However, there was some satisfaction for the Commission in relation to the standard of evidence required to enable the Commission to prohibit a merger under the EC Merger Regulation.

The Working Time Directive (93/104/EC) was adopted under article 118A of the
Treaty establishing the European Community to “encourage improvements,
especially of the working environment, as regards safety and health of workers”.
Offshore workers were initially excluded from the Directive when it came into
force in 1998, as the Commission and member states agreed that these sectors
would require their own special rules. The main proposal, the Horizontal Amending

From time to time there are circumstances in which the device of a disposition a non domino, that is, a deed of transfer of title to heritable property by
someone who is not the owner of that property, can be used to useful effect
to found a prescriptive title to a property, for example in the case of a piece
of apparently ownerless ground, where no owner can be found after appropriate
searches and enquiries have been carried out. It is not a device that can be

There is provision in the Church of Scotland (Property and Endowments) (Amendment)
Act 1933 requiring the General Trustees of the Church of Scotland to offer
to adjoining owners an opportunity to purchase ground originally transferred
for the erection of a church or manse whenever they plan to sell that ground.
It applies only to ground provided for certain churches and manses listed in
Schedule 10 of the Church of Scotland (Property and Endowments) Act 1925 (extended