We've written before about the Scottish concept of tacit relocation in commercial leasing. Put short, if neither party to a commercial lease give notice to the other party at least 40 clear days prior to lease expiry that the lease will terminate on that date, then tacit relocation applies and the lease continues for a further year on the same terms and conditions. This can sometimes be a surprise to tenants and some landlords more used to the English position. The flip side is that if notice is given at least 40 clear days in advance of lease expiry then that is that and the lease is at an end. A tenant given due notice has no rights of relief and it is straightforward to remove a tenant if they fail to vacate through an application to the court.

The appeal court in Scotland has now issued a short and sweet decision which makes clear that tacit relocation can be overcome by less formal communications, in this case an email, between the agents of the landlord and tenant.

The Facts

Rockford Trilogy (the Landlord), had a commercial lease in place with their tenant, NCR, of commercial premises, in this case an entire Building at Eurocentral. Neither party served a formal written notice to quit before 14 February 2020, the last date for doing so, which would have put matters beyond doubt by displacing tacit relocation. However, as the last date for giving notice approached, the parties agents, Jones Lang LaSalle and Savills, were involved in an ongoing exchange on potential terms for NCR to remain in the building. Jones Lang intimated in January that NCR were looking to proceed with premises elsewhere and would only consider remaining in the building on certain conditions being met. Things went quiet until, on 26 February, the Landlord's lawyers issued a letter to say that as no notice to terminate had been received, they considered that the lease continued by tacit relocation. That led to court action in which NCR were successful at first instance in overcoming the Landlord's attempt to argue that the lease continued for a further year. But the Landlord appealed trying to argue that in the context of ongoing negotiations between agents, tacit relocation could only be excluded where the parties reached agreement on new lease terms.

The decision

The appeal court threw out the Landlord's appeal because, in essence, the emails between the agents were sufficient to overcome tacit relocation. The Landlord could not therefore claim that the lease continued for a further year. This was not a case in which the Landlord could establish silence by the tenant which in turn had led to the lease continuing.

Key takeaways

  1. If the lease does not contain an express provision requiring service of a formal written notice to quit (leases should always be checked!), then it is still clear in Scots law that informal notification, whether verbal or in writing will suffice to bring a lease to an end if given at least 40 clear days in advance of lease expiry.
  2. All that requires to be intimated is a lack of consent to the continuation of the lease.
  3. Each case is determined on its own facts and circumstances but silence will still result in the law implying consent to continuation of the lease for a further year.
  4. Emails can therefore be sufficient to terminate a lease, as could a telephone call - but why take the chance?
  5. Litigation may be avoided by serving a formal written notice to quit.


The tenant in this case managed after 18 months of litigation to win the day. The Landlord's approach here, which surprised the tenant in the first place, will have cost them dearly with, most likely, expenses being awarded against them and no extra year of income based on tacit relocation. But with the benefit of hindsight, NCR may have wished that they had just put the position beyond doubt by instructing their lawyer to serve a formal written notice to quit at least 40 clear days prior to lease expiry. In saying that, all was not lost and no doubt after thrashing about in the undergrowth, some supportive emails and the actions of the parties really can give landlords or tenants enough material to establish termination of the lease.


Stephen Goldie

Managing Partner