Charles Stronach And Others V. James Robertson
| Jurisdiction | Scotland |
| Judge | Lady Paton |
| Date | 09 May 2002 |
| Docket Number | XA193/00 |
| Court | Court of Session |
| Published date | 09 May 2002 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Dawson Lady Paton
| XA193/00 OPINION OF THE COURT delivered by LADY PATON in the cause CHARLES ROBERTSON STRONACH, JAMES BARKER ROBERTSON STRONACH and ANDREW WILLIAM STEVENSON, W.S., Executors-nominate of the late MRS. ELEANOR BEATTON ROBERTSON or STRONACH Pursuers and Appellants; against JAMES PERCIVAL ROBERTSON Defender and Respondent: _______ |
Act: Crawford, Advocate; Aitken Nairn W.S.
Alt: Ross, Advocate; Shepherd & Wedderburn
9 May 2002
Liferent of a house
[1]The respondent liferents a house known as Heath-Hill, 6 Hillside Road, Stromness, Orkney. He has lived there since 1948, initially with his parents. Following his father's death in 1971, he was granted a proper liferent of the subjects by his father's executors, by Disposition dated 1 and 5 July 1976: that is to say, the subjects were conveyed to the respondent in liferent and to his sister in fee, without the interposition of a trust. The fee vested in his sister with immediate effect. The respondent continued to live at Heath-hill. On his sister's death, the fee passed to her executry estate. The appellants are her executors, and are therefore the fiars of Heath-Hill.
Whether the fiars are entitled to specific implement or damages against the liferenter
[2]Over the years, the appellants became concerned about the respondent's management of Heath-hill. They raised the present action in Kirkwall Sheriff Court, averring that the respondent was failing in his duty to carry out reasonable, normal and necessary repairs. In Article 3 of Condescendence, the appellants described deterioration of rainwater pipes, slates, ridge tiles, chimney heads, and skews. They averred inter alia that water penetration resulted in extensive wet rot; that the harling on the exterior walls was eroded leaving bare rubble masonry; that trees and shrubs had distorted walls and foundations; that a bathroom floor had collapsed; and that parts of a bedroom floor were missing. They estimated necessary repairs at about £84,500. They craved the court firstly, to ordain the defender to carry out certain repairs, and secondly, in the alternative, to find the respondent liable to pay the appellants damages of £84,500, representing either the cost of repairs, or the loss of value to the subjects.
[3]The respondent lodged defences, maintaining inter alia that the appellants as fiars could not competently seek specific implement or damages against him during the currency of the liferent. The appellants' only remedy was the cautio usufructuaria, namely demanding caution from the liferenter, which would serve as a security until the termination of the liferent. At that point, fiars could make good any losses caused to the estate.
Cautio usufructuaria: statutes of 1491, 1535, and 1594
[4]In the Stair Encyclopaedia, Volume 13, paragraph 1661 it is stated:
" ... the fiar ... has open to him under the old Scots Acts [1491 and 1535] the unusual remedy of a particular type of caution, cautio usufructuaria. The usefulness of this remedy is doubtful, and it appears never to have been very popular. The situations where it may be applicable are where it appears that there is evidence that the liferenter is acting in such a manner as to damage or diminish the liferented subjects. The fiar can then demand that the liferenter lodge caution with the sheriff within twenty-one days, failure to comply resulting in the loss of the fruits of the liferented subjects ..."
Where the subject of the liferent was a house, a further old Scots statute of 1594 applied. Erskine, Institutes, II.9.60 states:
"It is provided by special statute (1594, c.226) that where a house within a borough, subject to a liferent, falls into decay, the fiar may, at any time while the right subsists, apply to the magistrates for taking cognition of the state of the house by an inquest, and for requiring the liferenter to repair it: and if he refuse, the fiar is authorised to enter into possession, upon giving security to pay to the liferenter during his right the rent which might reasonably have been expected for a lease of the subject as it stood at the time of cognition."
[5]The 1594 Act was repealed by the Statute Law Revision (Scotland) Act 1964. However the 1491 and 1535 Acts were repealed in part only, and in terms of these Acts the cautio usufructuaria remains available today. Nevertheless the appellants in the present action resorted to the remedies of specific implement and damages, in preference to the cautio.
Dismissal of the action in the Sheriff Court
[6]On 22 June 2000 a debate took place in Kirkwall Sheriff Court. The respondent's solicitor submitted that the appellants' action was incompetent. Fiars such as the appellants were not entitled to the remedies of specific implement and damages against the liferenter during the currency of the liferent, but only to the statutory cautio usufructuaria. Reference was made inter alia to a passage in Erskine, Institutes, II.9.59, which states:
"Yet where waste is already committed, no action is competent to him who stands presently in the fee for recovering damages; for the damage is due to that person alone to whom the fee shall open after the liferenter's death; and it is possible that if the presumptive heir, prosecuting such action, should die before the liferenter, his executor, to whom the sum recovered upon that action in name of damage would fall, might not be fiar of the liferented subject at the expiration of the liferent."
Founding largely upon that passage, the respondent's solicitor invited the court to dismiss the action as incompetent.
[7]Counsel for the appellants contended before the sheriff that the action was competent, finding assistance in a variety of authorities and making reference to the article in the Stair Encyclopaedia, Volume 13, which contains the following observations at paragraph 1660:
"Under Erskine's influence, the law appears to have taken an unduly restrictive approach to what constitutes the fiar's present interest [footnote1: see Erskine Institutes II.9.59]. Erskine used the notion of the separate interests of liferenter and fiar to come to the conclusion that during the liferent the fiar has only a very limited immediate "beneficial" interest (growing timber appears to be the main example) in the subjects, with his main interest being only an ultimate interest postponed until the end of the liferent.
In the limited circumstances where there is an immediate beneficial interest, the fiar is allowed to interdict a liferenter who is proposing to harm that interest in some way or claim damages for any harm already done him. But in all other circumstances the fiar's remedies are limited to demanding caution under two old Scots Acts, the Liferent Caution Acts of 1491 and 1535. It is difficult to follow Erskine's reasoning in this matter, and it is far from clear that Erskine's view is correct. If one adopts the older view of the proper fiar possessing a title subject to the personal servitude or burden of the liferenter's interest, then the artificialities of Erskine's account can be avoided. A proper fiar is simply in the position of an owner who has had his enjoyment of the subjects postponed until the termination of the liferent. However it is only the right of enjoyment to the subjects which has been postponed. While the liferent endures, the fiar's present interest is the preservation of the capital of the estate. The fiar has an immediate interest in the preservation of the subjects and, therefore, it follows, ubi jus ibi remedium, that any remedies open to any other owner faced with the damage or destruction of his property must be open to the fiar. The most obviously useful of such remedies would be interdict for threatened future harm and damages or a decree ad factum praestandum for harm already sustained to the subjects ..."
[8]By interlocutor dated 31 August 2000, the sheriff sustained the respondent's first plea-in-law and dismissed the action as incompetent. He noted:
"...Here, apart from the lucid and persuasive urgings of Mr. Stewart [counsel for the appellants], all I had to meet the straightforward fiat of Erskine (that the only remedy open to a proper liferenter was to seek cautio usufructuaria) was an obiter observation by the author of an article in the Stair Encyclopaedia to the effect that "it is far from clear that Erskine's view is correct". Having listened carefully to the arguments and having read the authorities ... though I cannot but agree with the sentiments of the author in the Encyclopaedia I cannot see that I can with such limited support hold that Erskine is wrong ...
The nub of the question is whether security is all that a fiar can require from a liferenter. I do not see that the cautio was necessarily the only remedy available under Roman Law even though it certainly seems to have been the only one mentioned in the literature. It may also be the case that the finding of security was not the only remedy open to a fiar in Scotland in pre-Erskine times but, for whatever reason, that position seems to have been generally accepted by Erskine.
Proper liferents have been out of favour for many years. It is not without significance that the only case law I was referred to dated from 1823. To speculate, it may be that one reason for the device's patent lack of popularity might well be just because of that very lack of flexibility effeiring to the enforcement of the fiar's interests in the fee. The present proper liferent was constituted as late as 1976 and seems almost an aberration or a hangover from the past. It may be that if the law were changed or re-declared, proper liferents might come back into fashion, but this is not the forum for that to be initiated in. I consider that Erskine's declaration of the law on the matter is what I must follow and accordingly I sustain the defender's first plea in law and dismiss the...
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