Written in partnership with David Bell of Harper Macleod and Lorna Richardson of the University of Edinburgh.

This Checklist sets out some of the common issues that landlords and tenants should consider when negotiating repair clauses in commercial leases in Scotland including latent and patent defects, ordinary and extraordinary repairs, and the insuring and reinstatement provisions of a lease.

At common law a landlord, in comparison to a tenant, has quite onerous obligations in so far as the maintenance and repair of a let premises is concerned, see Practice Note: Repair clauses in commercial leases in Scotland—Repair under the common law. In commercial leases, it is almost universal practice for the landlord to seek to divest itself from all common law repairing obligations in relation to the premises let to the tenant (but not the common parts in multi-let buildings, see Practice Note: Service charge and outgoing provisions in commercial leases in Scotland). As such commercial leases typically impose significant repairing obligations on the tenant. The most common form of commercial lease is a full repairing and insuring (FRI) lease where the tenant is responsible for all repairs of whatever nature with the exception of insured risk damage, see Practice Note: Repair clauses in commercial leases in Scotland—Contracting out of the common law—the full repairing and insuring (FRI) Lease.

Survey

A tenant should always have a building condition survey (including that of landlords' fixtures and fittings such as items of plant and machinery) carried out where it is being required to accept a full repairing obligation. The survey should be carried out before conclusion of the missives of let as the results could provide the tenant with leverage to force the landlord to exclude certain defects from the tenant's repairing responsibility or even to force the landlord to accept that the tenant should not be obliged to

 

 

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