Background
Sheriff Court case concerning an action for recovery of possession of a shop premises in Edinburgh. The shop was let on a 25 year full repairing and insuring lease commencing in December 2002.

The lease contained a clause stating: ‘[t]he weekly rent shall be payable by Bank Standing Order to the Landlord’. However, in practice, the rent was paid in cash. The landlord kept rent diaries which recorded the dates when rent was paid and the dates when rent was not paid. On 31 March 2014 the landlord terminated the lease after following the irritancy procedure in respect of 35 weeks of unpaid rent. The landlord then raised an action to recover both possession of the shop and the unpaid rent.

The tenant argued that the rent had been paid in full. In response to the landlord’s evidence that it had not, the tenant pointed to the provision in the lease for the rent to be paid by standing order and the lack of bank records or accounts showing how the rent was received, rent receipts or a rent book.

Decision
After hearing evidence from various parties, the sheriff preferred the evidence of the landlord and his witnesses and granted decree in the landlord’s favour. With regard to the clause indicating that the rent would be paid by standing order, the sheriff found that it meant that the landlord would be bound to accept rent paid by standing order if the tenant paid by that means. However, it did not prevent the landlord from dealing in cash if the tenant wished to pay that way.

As regards the evidence produced by the tenant, the sheriff said the following:

 “In my judgement it was always open to the [tenant] to organise his business affairs in such a way that he could pay the rent by standing order and be in a position to demonstrate he paid the rent regularly and was up to date. I consider this is basic business management. It is his responsibility to organise his business affairs in such a way that he can at least demonstrate he pays the rent. His own parole evidence in my opinion was worthless. The onus of proof is on the [landlord] to prove his case but the fact that the [tenant] is incapable of clearly demonstrating something as basic as regular rent payments, in my view, makes it easier to accept the [landlord]’s case which is at least based on a system, primitive though it may be.”

The full judgement is available from Scottish Courts here.

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