The rights of tenants under a remedial works agreement

Network Rail Infrastructure Ltd v Fern Trustee 1 Ltd and Others [2022] CSIH 32

In Network Rail Infrastructure Ltd v Fern Trustee 1 Ltd and Others [2022] CSIH 32, the Inner House of the Court of Session held that the tenants of property were not entitled to a declarator that the works done under a Remedial Works Agreement had not been completed because of their concern that the works had not been done satisfactorily. It was held, as a matter of construction of the relevant agreement, that it was for the owners, and the owners alone, to decide whether or not the works had been satisfactorily completed for the purpose of issuing an Owner’s Completion Notice. While the owner was obliged to liaise with the tenants, the decision whether or not to include an item in the Owner’s Completion Notice was ultimately a matter for the owners and not for the tenants. Insofar as the tenants sought to rely on arguments based on commercial common sense, it was held that such considerations, to the extent that they were relevant, favoured the construction adopted by the owners and not the tenants. The tenants therefore did not have the right for which they contended and their claim was dismissed.