Gordon Keyden

The pursuer, Philip Samson, leased a unit within the Turkeytorium. A fire which had been set at a separate unit on 5 December 2016, by persons unknown, spread to the unit leased by Mr Samson and, despite fire brigade attendance, the building was burned to the ground resulting in the loss of the contents of the pursuer’s unit allegedly valued at £300k.

The case was heard at Edinburgh Commercial Sheriff Court by Sheriff N. A. Ross.

The Turkeytorium

The building in question takes its unusual name from its former use as a poultry farm. In 2001, the defender applied for planning permission for a change of use from agricultural to storage. The pursuer averred that this change of use brought into application the building standards which were applicable at the time. It was alleged that certain features of the premises did not comply with these building standards, and this had allowed the fire to spread to the pursuer’s unit more quickly than it otherwise would have done.

The pursuer averred that when he entered into a lease with the defender in 2015, there was an implied term that the building complied with the building standards of 2001, or in the alternative that there was an implied term that the unit was reasonably fit for purpose and in good tenantable condition, and this could be determined with reference to the applicable building standards. It was also averred that these implied terms would apply not just to the unit leased to the pursuer, but to the entire premises.

The defender submitted that there was no authority to imply terms in this manner, and that any implied terms would be limited to the unit leased.

Terms implied in law

Sheriff Ross first considered the pursuer’s proposition that the fire safety terms were implied in law, and found that there was an absence of authority for that submission. Considering the authorities referred to, he found that the implied terms which impose obligations on landlords are of a limited nature, and that any such duties which do exist are limited to protecting the safety of persons, not property. If parties wished to impose a statutory standard for property protection, this could be done by an express term.

Sheriff Ross went on to find that even if the authorities allowed a fire safety term to be implied by law, he would not do so as “It is not axiomatic that the common law requires premises to meet standards imposed by legislation”. There was no inevitable link between safety and the regulations – compliance with regulations may not guarantee safety or, alternatively, regulations may be onerous for policy reasons rather than to set the minimum standard for safety.

Terms implied in fact

Having decided that the term was not implied in law, Sheriff Ross turned to consider whether it was implied in fact. He found that it was required for implication in fact that the term was necessary for business efficacy. As the pursuer had not made any averments on the parties’ knowledge of the need for the provisions of the regulations to be implied, this alone would disallow a case that the term was implied in fact. Sheriff Ross went on to find that even if a term on fire safety had been implied in fact, ‘it does not follow that [the building standards] represent the minimum contractual standard’ and the reliance on the regulations in place in 2001 was arbitrary, as there was no evidence parties knew or cared what regulations might apply to the premises.

Terms implied relating to the whole building

The pursuer averred that the landlord obligations relating to fire safety would apply to the whole building, not just the unit which he had leased. Sheriff Ross found that this was not so, as there was no evidence that the use of the unit was affected by the use of the rest of the premises. A case pled on defective fire safety in another unit could therefore not be based on the parties’ contract.

The case was therefore dismissed at debate.

Gordon Keyden is a partner at Clyde & Co