Say what you see and do as it says. Attempts to think around a problem may create another, fatal, problem. Before a landlord terminates a lease in Scotland by irritancy (forfeiture) for failure to pay rent, he must give the tenant notice of that breach and an opportunity to remedy it. This is enshrined in statute, and sets out that the notice "shall be sent by recorded delivery."
The recent Court of Session ruling in Kodak Processing Companies Limited v Shoredale Limited [2009] CSIH 71 has confirmed how these pre-irritancy notices must be served, even during a postal strike. The service of such notices is crucial as they take effect without the consent of the tenant, providing they are served in the correct manner.
Breaking down the elements of the legislation, a notice must be sent ( ... "shall be" ...); the notice must be sent (not necessarily received); and it must be sent by recorded delivery (no alternative to this method is provided in the legislation).
In the Kodak case, the Court of Session was of the opinion that the term "recorded delivery" is commonly understood to mean the Royal Mail recorded delivery service. In the case, a sheriff officer, in the presence of a witness, served a termination notice on the sub-tenant, because there was a postal strike at the time. Consequently, it was ruled that the service of the notice through sheriff officers was insufficient, even in the face of a postal strike, and the notice had not been served correctly.
So how should landlords serve pre-irritancy notices on tenants when there is a postal strike?
The Court of Session suggests that in situations where there is a postal strike, it is acceptable for a landlord to send the notice by Royal Mail recorded delivery, and at the same time send a copy of the notice to the tenant by some other means explaining that the principal notice may be received late.
Therefore, in order correctly to serve the pre-irritancy notice prior to termination of a lease, practitioners should use the Royal Mail recorded delivery service to send it. However if there is a postal strike underway or in prospect, precautions should also be taken to ensure the tenant actually receives it by other means, such as email.
(In the case, it was noted that the sub-tenants had indeed been in default of payment of rent; that they had indeed known about the landlord's intention to irritate with the landlord having provided them with an opportunity to remedy the breach. But the case turned not on the interpretation of the provisions of a lease, but one of statutory interpretation.)
What might happen if the Royal Mail is privatised is a matter for conjecture. Meanwhile, whilst the general monopoly of the Royal Mail has been lost, it does retain a monopoly on service of pre-irritancy notices.
References
Kodak Processing Companies Limited v Shoredale Limited [2009] CSIH 71
Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, section 4(4)
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 05/11/2009.
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