Irritancy is a risk when tenants don’t meet lease obligations

July 14, 2026

There are strict rules around irritancy, and when a lease can be terminated

by Marc Waters of MCM Solicitors

Commercial tenants in Scotland operate in a demanding environment, and the day‑to‑day pressures of running a business can sometimes lead to breaches of lease obligations – whether financial or otherwise.

In these circumstances, it is essential that both landlords and tenants understand how irritancy works, and the strict legal framework that governs it under Scots law.

When considering irritancy, two key sources must always be borne in mind: the terms of the lease itself, which set out the parties’ rights and obligations, and the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, which imposes statutory requirements that cannot be contracted out of.

Monetary breaches

Monetary breaches most commonly arise where rent is not paid when due. However, they also extend to any failure to pay sums required under the lease, such as insurance contributions or service charges.

Section 4 of the 1985 Act sets out a mandatory process that must be followed before irritancy can be enforced. A landlord must first serve a valid pre‑irritancy warning notice, giving the tenant at least 14 days to remedy the breach.

This notice is not a formality. It must clearly specify the amount outstanding and the period within which payment must be made, and it must be served in strict accordance with both statutory requirements and the service provisions in the lease.

Following service, the tenant has an opportunity to ‘purge’ the irritancy by settling the sums due. Many leases also allow landlords to recover reasonably incurred legal costs in connection with enforcement, and these are often included in the notice – although this depends on the wording of the lease.

If the breach is not remedied within the specified period, the landlord may proceed to serve a notice of irritancy to terminate the lease. While termination is often expressed as taking effect immediately, practical enforcement may require court proceedings if the tenant does not vacate voluntarily or disputes the validity of the process.

Non‑monetary breaches

Non‑monetary breaches can arise in a variety of ways – for example, failure to repair or maintain the property, or carrying out alterations without the landlord’s consent. There is no exhaustive list; any breach giving rise to a right to terminate may fall into this category.

In these cases, Section 5 of the 1985 Act introduces an important safeguard: the landlord must be able to demonstrate that it is “fair and reasonable” to terminate the lease. This is an objective test, and it can be difficult to apply in practice.

In addition, tenants must be given a reasonable period to remedy the breach. What is reasonable will depend on the circumstances. Minor breaches may be capable of prompt resolution, whereas more significant issues – such as structural alterations – will require more time.

Importantly, landlords are not entitled to immediate termination for non‑monetary breaches. Courts will expect landlords to consider alternative remedies where available – such as carrying out repairs themselves and recovering the cost – before resorting to irritancy.

Recent case law: getting it wrong can be costly

The courts have repeatedly emphasised that irritancy is a ‘draconian remedy’, and they will scrutinise closely whether landlords have complied with both statutory requirements and the lease.

In Lujo Properties Ltd, a pre‑irritancy notice was issued but never reached the tenant, having been returned to sender. Although the landlord argued that service had been effected, the court held that the notice was invalid because the lease required it to be ‘given’ to the tenant. The irritancy failed as a result.

Similarly, in Drury Street Ltd, the landlord’s own conduct undermined its position. Having served irritancy notices, the landlord later accepted part payment of arrears and indicated that the tenant could continue to occupy the premises. The court found that this amounted to a waiver of the irritancy, preventing its enforcement.

A cautious approach is essential

For landlords, irritancy is a powerful but technical remedy that must be exercised with care. For tenants, it represents a significant risk where obligations are not met.

In both cases, early advice is key. Failure to follow the correct procedure or acting inconsistently after serving notice can render an irritancy invalid – often at considerable cost.

A clear understanding of both the lease and the statutory framework is therefore essential before any steps are taken.