invalid clause in lease

[luluspice]

Hi,
Anyone got any knowledge on this issue?
Our commercial lease has a clause which states that the landlord has the authority to grant us use of an area connected to our property. At a meeting today the landlord admitted he does not have that authority as the property does not belong to him - it is public realm. Does this make our entire lease null & void? After all it is a legal document!
The use of the area is beneficial to our property - it is an external balcony, extremely beneficial as a smoking or al la fresco dining area for our Bar/Bistro in Scotland - especially in winter!
Any advice, experiences would be appreciated

Thanks
Luluspice

[akirk]

depends on the lease and how it is written - most legal documents will have a clause in them to the effect of: if any clause is found to be not compliant with the law it should be ignored and the rest still stay in force...

Alasdair

[Naweed Riaz]

The clause is non-enforceable and you can have access to the area - check with the land registry office could be an option.

[stugster]

depends on the lease and how it is written - most legal documents will have a clause in them to the effect of: if any clause is found to be not compliant with the law it should be ignored and the rest still stay in force...

Alasdair

Gerrout of our forums :p

[stugster]

Luluspice,

This depends entirely on your lease. I know an Edinburgh based solicitor that would be more than happy to advise you on this at a very competitive price, would you like me to send you his information?

I wouldn't personally take the advice off a forum as you've got no guarantee the advice is correct. Furthermore, you're going to probably dealing with Scots law, which has subtle differences than English and Welsh.

[luluspice]

Had a look at lease & there is no section which states if any part is incorrect etc... all else still applies.
Going to see a lawyer next week, the area concerned is a balcony which comes under public walkway - even though not used. Lawyer thinks may be able to get rent reduction due to mis selling - kinda like buying a house then finding out the garden doesn't belong to you eh?
The lease is looking very dodgy, assignor was held as gaurantor, but we found out after assignation he is bankrupt. Am sure he should have been credit checked like us!!!!
Watch this space!!!!