Local Council Ordered to Remove Alterations to Sub-Let Premises

In the case of L Batley Pet Products Limited v North Lanarkshire Council the appellant company (Batley) was the mid-landlord of sub-let premises and the respondent (the Council) was the sub-tenant. There was a disagreement on whether the Council was obliged to remove its alterations and reinstate the sub-let premises on the expiry of the sub-lease, when the request to do so was made orally by Batley's surveyor and not put in writing in a schedule of dilapidations or, alternatively, before the sub-lease expired.

 Under a minute of agreement that authorised alteration to the sub-let premises, Batley claimed from the Council a sum of money for both the removal of the alterations and the repair of the sub-let premises. It alternatively claimed under the sub-lease (which imposed on the Council the obligations of the head lease to repair, maintain and renew the premises) a lesser sum for repair of the sub-let premises, excluding the removal of the alterations.

 The judge concluded that Batley had pleaded a relevant case because the judge construed the minute of agreement as allowing it to communicate orally that it required the reinstatement of the sub-let premises.

 However, the Extra Division of the Inner House of the Court of Sessions granted the Council's reclaiming notice and dismissed Batley's action. It held that, absent a written notice before the expiry of the sub-lease, the Council was not obliged, under the minute of agreement, to dismantle and remove the works, and reinstate the sub-let premises. It further held that Batley had not averred a relevant basis for its alternative claim, becuase it had not pleaded that it had given the Council any indication before the expiry of the sub-lease that any work was required under the head lease.

 Batley appealed.

 Therefore it fell to be determined: (i) whether, under the repairing obligation in the head lease, which had been applied to the sub-lease, Batley had had to give a written notification that it had required the council to carry out the repairs before the expiry of the sub-lease; and (ii) whether, under the minute of agreement, Batley had been obliged to give written notification that it had required the council to remove the alterations and reinstate the sub-let premises.

 The appeal would be allowed.

1.  It was an established principle that, while an obligation to repair could not exist unless and until there was disrepair, that reasoning did not apply to a covenant to keep and put into good and tenantable condition. All that was needed, in general terms, to trigger a need for activity under an obligation to keep in and put into a given condition was that the subject matter was out of that condition. There was no requirement of notice from the landlord, in writing or otherwise, during the currency of the lease to trigger that obligation. With respect to the sub-lease, the pleadings gave notice of both the contractual basis for the claim and also the works which Batley asserted had been required at the expiry of the sub-lease to meet the obligation to repair. The Extra Division appeared to have imposed on Batley an obligation that was not there. The head lease's requirement obliging the tenant to repair, maintain and, where necessary, reinstate the premises in order to keep it in a tenantable condition at all times during the period of the lease, was an obligation to keep premises in and put them into a good condition. It imposed a continuing obligation on the tenant which did not require any notice from the landlord to activate it.
2. The minute of agreement had not required Batley to give written notice of its requirement that the licensed works be removed at the end of the sub-lease. It appeared that, in the minute of agreement, the parties had stated expressly when a communication had had to be in writing and when more informal communication had been permitted. Nothing had been incorporated into the minute of agreement. Its words pointed towards the conclusion that writing was not required for communications in all circumstances.

Oliver Kew

Published on 16/05/2014