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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11554
Experience:  30 years as a practising solicitor.
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hello, if a lease of a commercial premises (farm building)

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hello, if a lease of a commercial premises (farm building) which I used as a restaurant was not witnessed and only ran for one year initially and never renewed as the owner kept fobbing us off saying the new lease was with his solicitor and after over a year of this and whilst the restaurant was closed for the winter i told him that I was not paying any further rent till we got a new lease as we suspected he was keeping us going through the winter then had new tennants lined up for the summer so after 4 months of e mails asking for a new lease one never appeared so we pulled our property out of the restaurant and informed him we were no longer wanting a lease after months of trying to get our deposit back he refused so now looking at small claims court but his solicitor is claiming 4 months rent under tacit relocatio but my understanding is as lease wasnt witnessed and you cant have a verbal lease on heritable property surely tacit relocation cant be used ?
Thank you for your question.

Was the lease in writing?
Customer: replied 4 years ago.

The lease was in writing signed but not witnessed

In that case the lease is perfectly valid and tacit relocation can operate.

In Scots law a lease which is witnessed is known as probative, which means that it is self proving. However a lease in writing and not probative is still valid. The only difference is that its terms would have to be proved in a court of law by the leading of evidence. That doesn't mean it's any less valid.

Happy to discuss further.
Customer: replied 4 years ago.

ok, with the fact that i kept asking for a lease and his continued fobbing off and i then informed him that I wasnt going to pay further rent until a lease was produced then he failed to communicate further so we had to pull out would the court just automatically rule on tacit relocation continuing the lease as was or can an arguement be made against this?


To avoid tacit relocation operating you would need to have a specific provision in the lease preventing tacit relocation or a letter clearly terminating the lease in accordance with its own terms of termination, ie, a month or two months notice for example.

In the absence of either of these tacit relocation would operate, and the lease would automatically renew for a further 12 months, I'm afraid. You can argue that by asking continually for a new lease that you had impliedly terminated the existing lease but I don't think this argument would work.
Please let me know if I can assist you further. Other I would be grateful if you would leave positive feedback so that I am credited for my time.
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