Sheriff Court case considering the extent of leased premises situated in Eastfield Industrial Estate in Penicuik.

The premises were situated above the Loon Burn which flows through a culvert. The culvert became damaged and the tenant argued that repairs were the landlord’s responsibility and sought an order compelling the landlord to repair the culvert or pay damages sufficient to cover the costs of repair.

The question for the court was whether the leased premises included the culvert.

The landlord’s title, as shown on his land certificate, was a coelo usque ad centrum (i.e. from the heavens to the centre of the earth) and thus, if the tenant had taken a lease of the whole of the landlord’s interest, the leased premises would include the solum of the property and therefore the culvert. The tenant pointed out that the description of the property in the lease was different to that in the Land Certificate arguing that, if a full transfer of the premises had been intended, the landlord could have put the matter beyond doubt by including the full conveyancing description from the land certificate.

The tenant also referred to the definition of conduits which included various wires and pipes not serving the premises, noting that a tenant would not take on liability for conduits not serving the premises and suggesting that it was therefore unlikely the premises included the conduits.

The sheriff preferred the landlord’s arguments finding that, although the descriptions were different, the description of the premises in the lease was full and unlimited with no hint of reservation or separation of the solum (albeit there were some small differences in other boundaries of the property which the sheriff concluded were sufficient to explain any dissimilarity in descriptions in the land certificate and lease).

The sheriff also rejected the tenants arguments in relation to the conduits noting that, although some of the conduits did not serve the premises, the parties had expressly recognised and regulated that situation in the lease. As a result, the sheriff was not prepared to infer that the conduits did not form part of the premises on the basis that some did not serve the premises.

Accordingly, the sheriff found that the leased premises included the Loon Burn culvert.

The full judgement is available from Scottish Courts here.