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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Allen & Ors v MacTaggart & Anor [2007] ScotCS CSIH_24 (30 March 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_24.html Cite as: [2007] ScotCS CSIH_24, [2007] CSIH 24 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord Nimmo SmithLord Kingarth Lord Marnoch |
[2007] CSIH 24XA18/06; XA13/06; XA14/06;XA12/06; XA11/06 and XA16/06OPINION OF THE COURT delivered by LORD NIMMO
SMITH in the Appeal under Section 11(1)
and (7) of the Tribunals and Inquiries Act 1992 by WILLIAM ALLEN AND ANN
ALLEN AND OTHERS Applicants and Appellants; against THOMAS MATTHEW MACTAGGART AND FIONA MARY HENDRY or
MACTAGGART Respondents: _______ |
Alt: Upton; Lindsays, W.S. (Respondents)
Introduction
[1]
[2] The
present appeals relate to six of these huts, Nos.2 - 7 inclusive. All eight huts were the subject of
applications to the Lands Tribunal for Scotland ("the Tribunal") under
section 21(1) of the Land Registration (Scotland) Act 1979 ("the 1979
Act"), in which the applicants claimed to be the tenants-at-will of the huts,
and as such entitled under section 20(1) of the 1979 Act, in accordance
with that section, to acquire the landlords' interest as such in the land which
was subject to the tenancies-at-will.
The respondents as landlords lodged answers to the applications. By interlocutor dated
The legislation
[3] The 1979 Act is, according to
its long title:
"An act to
provide a system of registration of interests in land in
Part IV, "Miscellaneous and
General", starts with provisions in sections 20 - 22 relating to
tenants-at-will. Section 20
provides by sub-section (1):
"A
tenant-at-will shall be entitled, in accordance with this section, to acquire
his landlord's interest as such in the land which is subject to the
tenancy-at-will (hereinafter referred to as the 'tenancy land')."
The following sub-sections enable a
tenant-at-will who wishes to acquire his landlord's interest under
section 20 to serve notice on him and to pay compensation and expenses to
him, in exchange for which the landlord is obliged to convey his interest in the
tenancy land to his tenant-at-will, free of all heritable securities. By sub-section (8), as originally
enacted, the expression "tenant-at-will" was defined as meaning a person:
"(a) who, not being -
(i) a tenant under a lease;
(ii) a kindly tenant; or
(iii) a tenant or occupier by virtue of any
enactment,
is by custom and usage the occupier
(actual or constructive) of land on which there is a building or buildings
erected or acquired for value by him or any predecessor of his;
(b) who is under an obligation to pay a
ground rent to the owner of the land in respect of the said land but not in
respect of the building or buildings on it, or would have been under such an
obligation if the ground rent had not been redeemed; and
(c) whose right of occupancy of the land is
without ish."
Paragraph (a)(ii) ceased to
have effect and was repealed by the Abolition of Feudal Tenure etc. (
[4] The
meaning of the word "redeemed" in section 20(8)(b) of the 1979 Act may be
discovered by reference to the Land Tenure Reform (
[7] It
is convenient at this point, because its position is clearer, to refer to the
customary "system of land tenure whereby the persons known as the Kindly
Tenants of Lochmaben hold land on perpetual tenure without meaning to procure
infeftment": see section 64(1) of
the 2000 Act. Such persons, most fully
named the King's (or Crown's) Kindly Tenants of the Four Towns of Lochmaben,
traced their system of tenure to the days of Robert I. "Kindly" in this context meant
hereditary. The kindly tenancy was held
of the Crown, and was vouched by entry in the Rent Roll kept by the Chamberlain
of the Earl of Mansfield, the Crown Steward:
see Gretton, "The Feudal System", para.72, in Reid, The Law of Property in Scotland (1996); and Gordon, Scottish Land Law, 2nd ed. (1999), paras.19-15. Their tenure was described as "not feudal and
yet not truly allodial", but "a right which amounts to full
proprietorship": Royal Four Towns Fishing Association v Assessor for Dumfriesshire 1956 SC 379, following Marquis of Queensberry v Wright (1838) 16 S. 439. In the Scottish Law Commission Report on Abolition of the Feudal System
(Scot Law Com. No.168) (1999) it was recommended that kindly tenancies be
abolished and converted to ownership as part of the scheme of abolition of the
feudal system. This recommendation was
implemented by section 64 of the 2000 Act, with effect from
[8] There
is much less authority relating to tenants-at-will than there is about kindly tenants. No mention of the former is to be found in
the institutional writers, though it would seem likely that they were
synonymous with rental-rights, in respect of which
"They were
enrolled in the rental book of the King's stewart, or in that of their lord; and
this, or a copy of the entry, was their sole title. They came to be admitted to a sort of
hereditary right; their widows being permitted to continue their possession,
and their sons to succeed. Rental-rights
had no ish, or term of expiration; ..."
Rental-rights were described in Rankine,
Leases, 3rd ed. (1916) in
historical rather than current terms.
Prior to this, however, the existence of tenancies-at-will was
recognised in the Report from the Select
Committee on Feus and Building Leases (
"Mainly on
the north-east of
It appears from this passage that
by the word "precarious" the committee meant that a tenant-at-will had no
contractual right to demand a formal title capable of being recorded in the
Register of Sasines and thus good against all the world, so that there was a
risk that a new owner of the land might dispute his claim to be recognised as a
tenant-at-will (although at an earlier point it was said that the tenure "was
generally regarded as giving the occupant possession during the lifetime of the
premises"). No doubt it was these
considerations among others which led to the inclusion in sections 20 - 22
of the 1979 Act of provisions designed to confer protection on
tenants-at-will.
[10] For completeness, we would add that reference was made to the
following textbooks: Paton and Cameron, Landlord and Tenant (1967) pp.68-9; Joint Consultative Committee of the Law
Society of Scotland and the Registers of Scotland, Registration of Title Practice Book (1981); The
Laws of Scotland: Stair Memorial
Encyclopaedia (1992), vol.13, paras.211 and 334; Gordon, Scottish
Land Law (1999), paras.19-15 to 19-16;
Gloag and Henderson, The Law of
Scotland, 11th ed. (2001), para.41.06; McAllister, Scottish Law of Leases, 3rd ed. (2002), para.1.20; and The
Conveyancing Opinions of Professor J M Halliday, ed. Cusine (1992)
375-6. None of these appears to us to
add anything of significance to the materials we have already quoted, although
it is to be noted that most emphasise the apparent permanence of the tenant's
right to security of tenure so long as the ground rent is paid. The only passage requiring further comment is
an observation by Professor Halliday, in an opinion dated
"I tend to
the view that 'lease' as used in [section 20(8)(a)(i) of the 1979 Act]
means a written lease."
We are unable to agree with this,
as the statutory provision is unqualified, and a lease may be constituted
without writing; for example it may be a lease for not more than a year,
followed by tacit relocation.
[11] While we would regard reference to the above materials, and in
particular the 1952 Report, as a legitimate aid to construction of the 1979
Act, as casting light on the meanings of the terms of art used in it, we do not
find any ambiguity in the Act. It is,
accordingly, in our view, inappropriate to refer, as counsel for the appellants
invited us to do, to passages in Hansard
showing comments made on behalf of the Government as the Bill passed through
both Houses of Parliament in 1979 (see Pepper
v Hart [1993] AC 593).
[12] The 1979 Act has been applied in a number of decisions of the
Tribunal. In McCann v
"[W]e
accept that the Act cannot have been intended to cover all types of structure
which might fall within the term 'building'.
Were this so the Act would, in effect, enfranchise all kinds of informal
arrangements where permission had been given to put up say a henhouse, a garden
shed or a greenhouse or even to site a static caravan. Lacking as it does any definition of
building, we are entitled to consider the mischief which Parliament intended
the Act to remedy. As we understand it,
the Act was intended to assist persons who have, with permission and in return
for a ground rent, built some permanent structure on ground belonging to
another in respect of which no title was to be granted, or have subsequently
become 'owner' of that permanent building. ...
In other words, in seeking a definition of 'buildings' one must, in our
view, look to a substantial structure erected on ground held on an informal
arrangement but nonetheless an arrangement which was intended to be more or
less permanent. There is, of course, a
further important element ..., namely that the permanency should arise from
'custom and usage'. We do not think that
permission to erect a structure which the landlord intends should be removed -
and is readily removable - can ever by itself be the subject of a
tenancy-at-will."
[13] The importance of custom and usage in establishing a
tenancy-at-will was emphasised by the Tribunal in
"As to the
matter of 'custom and usage', it is in our opinion clear that for the applicant
to succeed she must first be able to prove that Pennan is one of those few
places in
At page 23 they said:
"It would
be strange indeed if ... Parliament had intended to allow new tenancies-at-will
to be created or to be recognised in areas where they had not previously been
recognised to exist. It is thus in our
view clear that the reference in the Act to 'custom and usage' is, whatever else,
intended to confine the incidence of tenancies-at-will to those few parts of
Scotland where it has been acknowledged that from time immemorial this very
unusual type of tenure has existed."
On another point, the Tribunal
said, at p.9:
"It would
be inconsistent with a tenancy-at-will for the ground rent to be subject to
increase. On the other hand an increase
in rent would be consistent with a tenancy."
The rarity of tenancies-at-will was
again referred to in Maclean v Kershaw,
"An
established usage which by long continuance has acquired the force of a law or
right, esp. the established usage of
a particular locality, trade, society, or the like."
Similar definitions may be found in
the authorities cited in Stroud's
Judicial Dictionary of Words and Phrases, 7th ed. (2006) and Words and Phrases Legally Defined, 3rd
ed. (1988). As is specifically
recognised by the 1979 Act, custom may be accorded the force of law in the
locality in which it is recognised and practised. It follows from this that, for the purposes
of the statute, it must be possible to identify and delineate, with adequate
precision, the locality in question, and to describe, in sufficient detail, the
nature and terms of the "custom and usage" which the inhabitants of that
locality generally recognise as having the force of law in place of the system
of land tenure applying elsewhere in Scotland.
[15] The reports and cases to which reference has been made serve to
establish that tenancies-at-will have been recognised in particular in fishing
communities on the Seafield Estate and other estates in north east
[19] The appellants William and Ann Allen aver:
"Hut No.6
was erected in or around 1936. The
original owner was Mr Allen, Senior, father of one of the applicants. The applicants inherited it from
Mr Allen in 1980. Since 1980 the
applicants have owned and occupied the hut as their weekend and holiday home. Historically the eight huts have been owned
and passed on to local
There are similar averments for the
other appellants. The appellants
McDonald Boyes and Irvine Boyes aver that hut No.2 was erected in or around
1935 and extended in 1946. The original
owner was William Boyes, father of these appellants, who owned and occupied it
from 1935 until 1992, when they inherited it and have since then owned and
occupied it as their weekend and holiday home.
The appellant Kathleen Downes avers that hut No.7 was erected in or
around 1940 and remained in position until it was rebuilt in or around 1960. Subsequently, in or around 1978, it burnt
down and was rebuilt on the same site.
It was originally a roadman's caravan without wheels, resting on blocks. The original owners were Mr and Mrs George
Kerr, grandparents of this appellant, who inherited it after the death of her
grandmother Mrs Mildred Kerr in 1986, since when she has owned and
occupied it as her weekend and holiday home.
The appellant Thomas McDougall avers that hut No.5 was erected in or
around the 1940s. The original owner was
Mrs Brodie from whom this appellant acquired it in 1959, since when he has
owned and occupied it as his weekend and holiday home. The applicants Norman and Christine Milligan
aver that hut No.4 was erected in or around the 1940s. The original owner was Alex Welsh. In or around 1965 the owner was Alexander
Clark. Thereafter John Derby acquired
it. In 1987 these appellants paid £150
to John Derby for the hut, and since then they have owned and occupied it as
their weekend and holiday home. The
appellant Samuel Walker avers that hut No.3 was erected in or around 1946. The original owner was Mrs F Little,
from whom he acquired it in 1998. This
appellant has owned and occupied the hut as his weekend and holiday home. The pleadings for all of the appellants contain
admissions that the respondents and their predecessors in title have demanded,
and the appellants have accepted without protest, until recently, increases in
the ground rent from as little as £5 for each hut in the 1960s to £500 in 2004.
Discussion
Decision
[22] For these reasons these
appeals must be refused.