Leased subjects included culverted burn, sheriff rules
Tenants of premises, and not their landlords, are responsible under the lease for the maintenance of a culvert through which a burn runs beneath the subjects, a sheriff has ruled.
In a dispute relating to subjects at Eastfield Industrial Estate, Penicuik, Sheriff Nigel Ross at Edinburgh held that there was nothing in the lease to displace the common law position that land was held a coelo usque ad centrum (including everything above and below), and no horizontal boundary could be implied below which the lease did not extend.
The action was brought by Beatsons Building Supplies Ltd against their landlords, the trustees of an executive benefits scheme, after subsidence in their yard was caused by deterioration in the steel culvert running about 4.5m below the yard. The pursuers claimed the culvert was the landlords' responsibility whereas the landlords maintained it was part of the leased subjects and therefore for the pursuers to repair.
The pursuers argued that the “premises” as defined in the lease differed from the description in the defenders' land certificate, and did not show intent to convey the whole of the landlords' interest; that rights of the landlords in relation to “conduits” indicated exclusions from the lease where these did not serve the premises; and that the culvert would not have been evident to the tenant on entering the lease, and this was an onerous burden which required to be clearly expressed.
Sheriff Ross said it was plain that if the culvert fell within the definition of “premises”, the obligation to repair was on the pursuers. The grant in the lease, introduced by the words “All and Whole”, was “expansive and inclusive”, with no hint of reservation or separation of rights. The ancillary terms in the lease could not be read as introducing a horizontal split in the subjects. If the tenant had no rights or duties in respect of the culvert, the landlord’s reservation of a right to use it would be unnecessary.
Although neither party was able to find a statement of the common law in this respect, Sheriff Ross added, “In my view, the only realistic conclusion to be drawn, is that there is no rule of the Scots common law of property which imposes or infers any horizontal division of land... It follows that, unless otherwise agreed, or displaced by statutory provision, the default common law position means that the lease of the premises carries with it all rights a coelo usque ad centrum, with a corresponding obligation of maintenance and repair.”
The existence of the culvert was plain from the burdens section of the land certificate; and it was a further difficulty for the pursuers that there was no means of identifying any restriction as to height or depth. The pursuers' suggestion of “what is necessary for the tenant to use the yard” was of no assistance.
Further proceedings would be necessary to deal with the pursuers' claim that the works were in any event extraordinary repairs, and the defenders' counterclaim based on the pursuers having overloaded the yard.