Irritancy Notices

In Scotland there are a number of remedies available to both the landlord and the tenant when the other does not fulfil its obligations under a lease. 

If you are a landlord there is the potential for you to bring the whole tenancy to a premature end and recover possession of the premises when the tenant breaches the tenancy agreement. This is known as irritancy. It is similar to the English mechanism of forfeiture.

While irritancy and forfeiture are similar, only irritancy clauses will be enforceable in leases based in Scotland. We have the experience and expertise to advise commercial landlords on how to draft and enforce irritancy clauses effectively and efficiently. 

Drafting irritancy clauses

Irritancy can operate against breaches of almost any part of the tenancy so long as it is provided for in the tenancy agreement, including:

• late payment of rent
• sequestration/liquidation of the tenant
• failure of the tenant to keep the property occupied. 

Virtually all commercial leases in Scotland should have clauses dealing with irritancy. If drafted properly then an irritancy clause provides an effective opportunity for the landlord to end their relationship with a problematic tenant rather than suffer the expense and distress of frequent breaches for the rest of the term of the lease.

Our Commercial Property and Dispute Resolution teams can work hand in hand to ensure that the statutory requirements for irritancy notices are met and that your own specific risks are taken into account when it comes to defining what is a breach of the lease contract.

Irritancy notices and enforcing irritancy clauses

If you are a landlord it might not always be in your best interests to terminate a tenancy early. Before you decide to do so we can make sure that you have taken all the relevant commercial factors into account. 

However, if you wait too long to enforce the irritancy clause then there is a risk that you might have “acquiesced” to the breach and you therefore lose your right to do so.  We can give detailed advice from a legal and practical perspective about what to do when you think that the lease agreement has been breached.

If you decide that you want to enforce the irritancy clause then we can take care of drafting the notices complying with the terms of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. This involves serving a pre-irritancy notice as well as the formal irritancy notice. The reason for the pre-irritancy notice is so that the tenant is given a chance to rectify their breach and therefore avoid the expense of terminating the agreement or raising a court action.

If the tenant refuses to move out and the case is taken to court the judge may not grant an order for eviction unless it can be established that the legal notice requirements and time periods have been adhered to and (in certain cases) the landlord has acted reasonably in the circumstances. 

We can advise you on how to put yourself in the best possible position should the need to get a court order ever arise. We can also present your case in the Sheriff Court and Court of Session and argue your case for eviction.