Allen v McTaggart
| Jurisdiction | Scotland |
| Judgment Date | 30 March 2007 |
| Docket Number | No 32 |
| Date | 30 March 2007 |
| Court | Court of Session (Inner House - Second Division) |
Court of Session Inner House Second Division
Lord Nimmo Smith, Lord Kingarth, Lord Marnoch
Heritable property and conveyancing - Tenancy at will - Custom and usage - Variation in amount of ground rent payable - Land Registration (Scotland) Act 1979 (cap 33), sec 20(1), (8)
Practice - Pleadings - Relevancy - Tenancy at will - Custom and usage - Variation in amount of ground rent payable - Land Registration (Scotland) Act 1979 (cap 33), sec 20(1), (8)
Section 20(1) of the Land Registration (Scotland) Act 1979 provides, "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". Section 20(8), as originally enacted, defined "tenant-at-will" as meaning a person "(a) who, not being- (i) a tenant under a lease; (ii) a kindly tenant; or (iii) a tenant or occupier by virtue of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."
The appellants applied to the Lands Tribunal for Scotland, claiming to be the tenants at will of huts situated at Rascarrel Bay, on the Solway Firth in the old Stewartry of Kirkcudbright, and as such entitled to acquire the respondents' interest in the land which was subject to the tenancies at will. They averred, inter alia, that the huts were erected in the 1930s or 1940s, that they owned and occupied the huts as their weekend and holiday home, that historically the huts had been owned and passed on to local residents, and that the appellants were by custom and usage the occupiers of the land. They admitted that they had accepted increases in the ground rent. The Lands Tribunal held that for the existence of a tenancy at will there required to be an established tenure which was permanent in its nature, the appellants' acceptance that the rents had changed from time to time, in the absence of explanation, appeared inconsistent with a permanent tenure, and that the pleadings were irrelevant. The appellants appealed to the Court of Session.
Held that: (1) for the purposes of the 1979 Act 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 (para 14); (2) apart from the Kindly Tenants of Lochmaben, no informal system of land tenure has hitherto been recognised in south west Scotland and it would therefore be necessary to examine with particular care any claim that tenancies at will had come into existence on the Solway coast as recently as the twentieth century (para 15); (3) subject to possible local customary variation, the ground rent payable under a tenancy at will is fixed for all time, and changes in the amount of ground rent point to the existence of a lease rather than a tenancy at will (para 17); (4) the facts as averred indicated the existence of informal leases from year to year, not tenancies at will without ish, and the absence of any averments sufficient to establish the necessary custom and usage, and the admissions about rent increases, rendered the pleadings irrelevant (para 21); and appeals refused.
William Allen and Ann Allen applied to the Lands Tribunal for Scotland under sec 21(1) of the Land Registration (Scotland) Act 1979 claiming to be the tenants at will of hut 6 situated at Rascarrel Bay, on the Solway Firth in the old Stewartry of Kirkcudbright, and as such entitled to acquire the interest in the land of the landlords, Thomas Matthew Mactaggart and Fiona Mary Hendry or Mactaggart. Seven similar applications were made by the occupiers of the other seven huts at Rascarrel Bay. The landlords lodged answers to the applications.
On 4 November 2005 the applications were debated before the Lands Tribunal (chair JN Wright QC). On 9 December 2005 the Lands Tribunal dismissed the applications as irrelevant.
William and Ann Allen and the occupiers of five of the other huts appealed to the Court of Session under sec 11(1) and (7) of the Tribunals and Inquiries Act 1992 (cap 53).
Cases referred to:
Conochie v Watt, 7 September 1993, unreported
Duthie v Watson 1997 Hous LR 129
Ferguson v Gibbs 1987 SLT (Lands Tr) 32
Harbinson and ors v Mactaggart 2006 SLT (Lands Tr) 42
McCann v Anderson 1981 SLT (Lands Tr) 13
Maclean v Kershaw, 17 November 1993, unreported
Pepper v HartELRWLRUNK [1993] AC 593; [1992] 3 WLR 1032; [1993] 1 All ER 42
Queensberry (Marquis of) v Wright (1838) 16 S 439
Royal Four Towns Fishing Association v Assessor for DumfriesshireSC 1956 SC 379; 1956 SLT 217
Textbooks etc. referred to:
Andrews, WDC, Registration of Title Practice Book (HMSO, Edinburgh, 1981)
Bell, GJ, Principles of the Law of Scotland (10th Guthrie ed, Edinburgh, 1899), para 1279
Cameron, JGS, and Colquhoun, JC, "Landlord and Tenant" inStair Memorial Encyclopaedia: Laws of Scotland(Butterworths/Law Society of Scotland, Edinburgh, 1992), vol 13, paras 2.11, 334
Cusine, DJ, The Conveyancing Opinions of Professor JM Halliday(W Green, Edinburgh, 1992), pp 375, 376
Gloag, WM, and Henderson, RC, Introduction to the Law of Scotland (11th MacQueen et al ed, W Green, Edinburgh, 2001)
Gordon, WM, Scottish Land Law (2nd ed, W Green/Scottish Universities Law Institute, Edinburgh, 1999), paras 19.15, 19.16
Gretton, G, "The Feudal System" in The Law of Property in Scotland (Reid ed, Butterworths/Law Society of Scotland, Edinburgh, 1996), para 72
Guthrie (Lord), Report of the Scottish Leases Committee (Cm 8656, 1952), paras 70-81
Lands Tribunal for Scotland, Guidance Note for Hearings(Edinburgh, 2005), p 8
McAllister, A, The Scottish Law of Leases (3rd ed, Butterworths, Edinburgh, 2002), para 1.20
Oxford English Dictionary (Clarendon, Oxford)
Paton, GC, and Cameron, JGC, The Law of Landlord and Tenant in Scotland (W Green/Scottish Universities Law Institute, Edinburgh, 1967), pp 68, 69
Rankine, J, A Treatise on the Law of Leases (3rd ed, W Green, Edinburgh, 1916)
Royal Commission on Housing in Scotland, Report of the Royal Commission on the Housing of the Industrial Population of Scotland, Rural and Urban (Cm 8731, 1917), Ch XXIII
Saunders, JB, Words and Phrases Legally Defined (3rd ed, Butterworths, London, 1988)
Scottish Law Commission, Report on Abolition of the Feudal System (Scot Law Com no 168) (HMSO, Edinburgh, 1999)
Scottish Select Committee on Feus and Building Leases, Report(1994), pp ix-x
Stroud, F, Judicial Dictionary of Words and Phrases (7th Greenberg ed, Sweet and Maxwell, London, 2006)
The cause called before an Extra Division, comprising Lord Nimmo Smith, Lord Kingarth and Lord Marnoch, for a hearing on the summar roll, on 6 and 7 February 2007.
At advising, on 30 March 2007, the opinion of the Court was delivered by Lord Nimmo Smith-
Opinion of the Court-
[1] Rascarrel Bay lies on the Scottish coast of the Solway Firth, in the old Stewartry of Kirkcudbright. Above it lies Rascarrel Farm, of which the respondents have been heritable proprietors since 1997. The nearest settlement of any size is Auchencairn, while the nearest towns are Kirkcudbright, Castle Douglas and Dalbeattie. Dumfries is situated further afield. Next to the shoreline at the west end of Rascarrel Bay stand eight huts, four to the west and four to the east of the Rascarrel Burn, numbered 1 to 8. A vehicle access track leads to huts nos 5, 6, 7 and 8. A footpath leads across the Rascarrel Burn by a bridge to huts nos 1, 2, 3 and 4.
[2] The present appeals relate to six of these huts, nos 2 to 7 inclusive. All eight huts were the subject...
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William Wright V. Shoreline Management Limited
...there was no rule of law that the ground rent of a tenancy-at-will required to be a fixed sum. Reference was made to Allen v McTaggart 2007 SC 482, particularly at paragraph 17, as support for the view that variations in rent might be permitted by custom and usage. This endorsed the view of......