Irritation of commercial leases
When entering into a commercial lease, it is vital that you understand what is meant by irritation. This is because it is a very powerful weapon that a landlord can adopt to evict a tenant who does not meet their contractual obligations. So whatever your position (whether you’re a landlord or a tenant), you need to know how the irritation process works, what the law says, and whether or not you can rely on legal protection.
What is irritation?
Irritation is a common type of eviction procedure that a landlord can use if a tenant fails to comply with the terms of the lease. It is similar to the English forfeiture law, although there are significant differences. In particular, under Scottish law, it is easier for a landlord to enforce irritation than for their English counterparts to use forfeiture, as commercial tenants in Scotland have very little legal protection.
How does the irritation work?
The landlord’s right to use the irritation tool will be established in the lease itself. This is because in Scotland, the rights and obligations of the landlord and tenant are set out in the terms of the lease, which means that each case will depend on the contractual details. If there is no specific clause related to irritation in the lease, the landlord can only irritate the lease if the tenant has not paid the rent for two years.
Furthermore, the Law Reform (Miscellaneous Provisions) Act (Scotland) 1985 differentiates between monetary default and non-monetary default. The type of violation that has occurred will determine how the irritation can be used. We will see each of these in turn: –
1. Monetary default.
If a tenant has committed a monetary violation (such as not paying rent in full and on time), the landlord can provide a notice prior to the irritation. This will be a written record that will be sent to the tenant stating how much they owe and the date the arrears are due. The tenant will then have a period of 14 days (or more if established in the lease) to comply with the landlord’s demands. If the tenant doesn’t, the lease can get irritated.
2. Non-monetary default.
On the other hand, if there is a non-monetary violation (such as negligence in performing maintenance work), the landlord will not be able to irritate the lease if “in all the circumstances of the case, a fair and reasonable landlord does not seek to do so.” However, if it is fair and reasonable to do so, the landlord may provide a pre-irritation notice. Again, if a tenant doesn’t fix the problem, the lease can be annoying.
After the lease has been affected, it is not uncommon for a tenant to refuse to leave the premises. In such cases, the landlord must obtain a court order stating that the tenant must vacate the commercial property.
Does a tenant have any protection?
The introduction of the 1985 Act has provided tenants with some form of legal protection. Before this piece of legislation, landlords were allowed to exercise their right of irritation without even giving the tenant time to amend the situation. Now, however, there must be a period after the pre-irritation notice is served in which the tenant has an opportunity to rectify the violation. However, tenants are still particularly vulnerable to irritation, so it is wise to get an attorney’s opinion.
Seek legal advice.
Whether you are a landlord who wants to irritate a lease or a tenant facing the threat of irritation, it is important that your first step is to seek legal advice you can trust. This is because you need to know where you are and what action you can take next.