Retail tenant fails to compel landlord to repair outside footpaths after Outer House judge rules they are part of lease subjects

About this case:

• Citation:
  [2024] CSOH 49
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

B&M Retail Ltd argued that the footpaths were common parts of the North End Retail Park owned by defender LXI Cowdenbeath Ltd and sought declarators contending as such. The defender contended that the plans annexed to the lease demonstrated that the paths formed part of the property and thus the pursuers were responsible for their maintenance.

The action was heard by Lord Braid in the Outer House of the Court of Session. D Ford, solicitor advocate, appeared for the pursuer and Thomson KC for the defender.

Rake around in provisions

The dispute between the parties centred on two footpaths running to the front and rear of the subjects of let, which had fallen into disrepair. On a plan annexed to the lease, the paths lay within the boundary of a broken blue line around a coloured blue section which showed the let property. In the lease itself, the property was defined as “the property known as Unit 2, in the Development shown for identification purposes only delineated in a broken blue line on the Plan”.

In his submissions, the solicitor advocate for the pursuer emphasised the words “for identification purposes only” in the lease, the ordinary meaning of which was to identify at a level of generality where within the development the property lay. That wording demonstrated that whatever was shown by the broken blue line was not to be definitive.

It was further submitted that various other clauses within the lease, relating to the landlord’s right to access, the right to install an ATM in the frontage of the property, and the pursuer’s right to use the trolley bays, all indicated that the front footpath was a common part. Otherwise, these provisions would be unnecessary, make no sense, or have no contractual effect. The rear path was to be used as an emergency exit “from” the property, so should not be held to form part of it.

Senior counsel for the defender submitted that the parties had chosen to define the subjects of let in the contract by reference to the plan annexed to the lease. The court should have regard to that in ascertaining the parties’ intentions with regard to the scope of the property which was to be the subject of the lease, rather than rake around in other provisions of the contract, as the pursuer did, in an attempt to fathom what the contract meant by “the property”.

No ambiguity

In his decision, Lord Braid began by saying of the lease as a whole: “At the outset, it must be said that whichever construction is preferred, the drafting of the lease is far from perfect. If the pursuer is correct, the purpose of referring to a plan for identification purposes, which does not in fact identify the property, is unclear. If the defender is correct, many of the provisions of the contract, as the solicitor advocate for the pursuer submitted, read somewhat unhappily.”

Assessing the pursuer’s submissions, he said: “I do not agree that the word ‘only’ carries the significance attributed to it by the pursuer. There is no difference in meaning, simply one of emphasis, between the statements ‘the plan is referred to for identification purposes’ and ‘the plan is referred to for identification purposes only’. The key words in each case are ‘for identification purposes’: in other words, the purpose of the plan is to identify the extent of the property.”

He continued: “In the only provision of the lease which expressly sets out to identify the property which is to be the subject of the lease, the parties have clearly and unambiguously defined that property as being the whole of the area within the broken blue line. There is no ambiguity in the words used, to which I have ascribed their normal meaning. It follows that neither footpath falls within the definition of common parts, because they form part of the property, which in turn forms part of the Lettable Units.”

Lord Braid concluded: “Any violence to other provisions of the lease is slight by comparison with the damage to the parties’ objectives, as expressed in the definition clause of the lease, that would result from a contrary view. The consequence of this decision is of course that the pursuer will find that the lease incorporates a larger area of ground than it had hitherto thought. Whether that will confer any unexpected benefits remains to be seen.”

The action was therefore dismissed.