Tenant of burned down storage unit at former turkey farm fails to establish damages claim

Philip Samson rented a unit at the Turkeytorium, formerly Fenton Barns Farm, owned by DC Watson & Sons (Fenton Barns) Ltd, and sought damages for loss of property that he valued at £300,000. The first defender’s insurer, UK Insurance Ltd, appeared as the second defender.

The case was heard in Edinburgh Sheriff Court by Sheriff Nigel Ross.

Implied fire safety terms 

The Turkeytorium was converted from a farm into storage premises by the first defender in 2001. Each of the eight storage units was formerly a separate building, with a connecting corridor installed between them to facilitate moving between units. The pursuer rented Unit 8 from the first defender in March 2015. The lease itself consisted of a “relatively unsophisticated” two-page document entitled “Heads of Agreement”, featuring brief terms relating to building safety. 

On 5 December 2016, the Turkeytorium burned to the ground after firefighters were unable to extinguish a fire that had been started deliberately in another unit and spread to the rest of the building. The contents of the pursuer’s leased unit were completely destroyed. 

The pursuer claimed that the defender was in breach of two implied terms of the lease, namely that the unit and building were required to meet various applicable building standards and that both had to comply with laws on the prevention and mitigation of building fires. Additionally, he relied on the recognized common law term that the unit required to be reasonably fit for purpose and in good tenantable condition. 

It was averred that the specific implied terms had to extend to the building itself insofar as the condition of the building as a whole was capable of affecting the use of the unit for the purpose for which it was let. The relevant building standards were fixed as those that applied in 2001, when the first defender applied for permission for a change of use and to alter the building structure in order to connect the eight units. 

In response, the first defender submitted that any implied terms of the contract were restricted to the unit itself only. On the facts, no breach of the relevant statutory provisions had been sufficiently pled, and even if there had been a breach no causal link with loss had been demonstrated. 

Absence of authority 

In his decision, Sheriff Ross said of the pursuer’s case: “The pursuer’s proposition is significantly hampered by the absence of supportive authority. The proposition exceeds anything to be found in the common law, which is notably restricted as to the obligations imposed on a landlord.” 

He continued: “Those cases which deal with safety relate only to the health and safety of tenants, and not to the protection of goods stored. The present case is not similar to, and does not raise the same issues as, the type of unsanitary or dangerous conditions referred to in the authorities, or unfitness for occupation. The pursuer’s propositions in law go considerably beyond the authorities, which are limited in number and relate to the safety of persons inhabiting the premises, not the safety of goods, or occasional visitors.” 

He concluded on this issue: “It is not axiomatic that the common law requires premises to meet standards imposed by legislation from time to time. Accordingly, even if it were open to me on the authorities to infer such a term (and in my view it is not), I would not in any event do so.” 

Addressing whether an implied term would cover the whole building, Sheriff Ross said: “The fire started in a unit elsewhere in the building. There is no reason pled, or in logic, that the pursuer’s use of unit 8 was affected by the use or construction of any other unit. No case is pled whereby the pursuer required to rely on, or even use, any other part of the building, either for personal safety or for the safe storage of goods.” 

He continued: “If there were a case based on defective fire safety within another unit, or in the rest of the building, it could not be based on breach of the parties’ contract. The pursuer has not provided any authority to the contrary. Accordingly, even if I were to permit probation on implied terms, it would be refused in relation to the averments of obligation regarding any part of the building beyond the boundaries of the premises leased to the pursuer.”  

For these reasons, the pursuer’s case against the first defender was dismissed. 

Want of logic 

Turning to the case against the second defender, Sheriff Ross said: “The second defender is convened ‘for any interest it may have’. The pursuer seeks no decree against it, but points out that there is no prejudice to any party in convening the second defender, and that the objection to such is academic.”

He concluded: “If a party does not have a crave directed against it, it should not be convened as a defender. I will formally dismiss the case against the second defender, albeit there is no such case. This tends to illustrate the want of logic in convening the second defender.”