An ultimatum has been issued to Stornoway Golf Club that the lease of its course will be brought to an end if the course opens in defiance of the Sabbath.
The club and it members want to play golf on Sundays. The golf club's lease reportedly prohibits golf on Sundays. The landlord wants the club and its members to stick to that.
Who is right?
If the lease prohibits golf on Sunday then the landlord is right, at least in a legal sense.
What if the club allows play on a Sunday anyway?
A landlord can normally terminate a lease of commercial real estate if a breach is material and, in all the circumstances of the case, a fair and reasonable landlord would terminate. A typical non-monetary breach occurs when the tenant fails to comply with their repairing obligations.
If a landlord purports to terminate the lease for playing golf on a Sunday, it will be up to the club and its members to show that either the breach isn't material, or if it is, a fair and reasonable landlord wouldn't terminate. They will have to do that in a court.
Who would win?
Arguments on this issue are likely to be wide ranging - "all the circumstances of the case" permits an almost unlimited number of factors to be considered.
The decision will be assessed at the time the landlord tried to terminate. The role of the court is to assess the decision from the viewpoint of a fair and reasonable landlord in the position of the actual landlord - would a fair and reasonable landlord terminate if golf is played on a Sunday?
It is the landlord's own interests that have to be considered - they are entitled to pursue their own commercial (or other) interests and a fair and reasonable landlord is not expected to be altruistic. Severe consequences for the tenant (such as no longer having a golf course) don't necessarily mean the landlord is being unfair or unreasonable.
If, however, the decision to terminate is tainted by any suggestion that it is vindictive or oppressive, the landlord may risk straying into the territory of the unfair or unreasonable landlord.
The courts have also suggested that if a less draconian remedy is available (such as getting a court order to stop the club from playing golf on a Sunday) it is probably unreasonable for the landlord to terminate the lease.
Each case in which a landlord seeks to terminate a lease for a non-monetary material breach, including golfing on Sundays, will be determined by its particular facts and circumstances. Such a decision cannot be taken lightly and landlords considering this route should take legal advice before doing so.
Contributor
Associate & Solicitor Advocate
