Most commercial leases have irritancy clauses, entitling landlords to terminate the lease. The recent decision of Sheriff Principal Murray in Inverclyde Council v McCloskey takes a fresh look at what Landlords must include in an irritancy warning notice.
Since the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 came into force it has been clear that where a lease is being irritated on the basis of arrears, the notice requires to:
- set out details of the outstanding sum;
- provide the tenant with no less than 14 days to make payment; and
- advise that failure to make payment may result in the lease being terminated.
The 2012 decision of Scott v Muir suggested that, in order to be valid, the notice also had to set out the period in respect of which the arrears were due. However, Sheriff Principal Murray takes the view that, whilst including this information is in line with best practice, it is not an essential ingredient of a valid irritancy warning notice.
This case represents an interesting departure from the established view on irritancy warning notices. Whilst, as the Sheriff Principal points out, there is merit in providing a full explanation of the arrears in the notice, it would appear that the absence of such detail will not render a notice invalid.