Falconer v Chisholm's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 18 June 1925 |
| Date | 18 June 1925 |
| Docket Number | No. 86. |
| Court | Court of Session |
Ld. Morison, Lord Justice-Clerk (Alness), Lord Ormidale, Lord Hunter, Lord Anderson.
Landlord and TenantRemovingEmergency legislationIncrease of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 and 11 Geo. V. cap. 17), sec. 12 (2) (iii.)House let together with landHotel let along with two farms in same lease but at separate rents.
An hotel and two farms in its vicinity were let together in the same lease, but at separate rents of 40 and 72 respectively. The lease required the tenants to carry on the hotel as a temperance hotel, and to work the farms as one holding. It excluded assignees and subtenants, and was terminable by either party on one year's notice, the tenants being bound, on the termination of the tenancy, to remove from the whole subjects hereby let without warning or other process of removal. The proprietors having given the tenants notice to remove from the subjects let, the tenants, founding on the Rent Restrictions Acts, refused to remove from the hotel, and an action of removing was brought against them.
Held, in the circumstances, that the hotel was let together with the farms within the meaning of sec. 12 (2) (iii.) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, and accordingly, as the rateable value of the farms exceeded one-quarter of the rateable value of the hotel, the hotel was excluded by that subsection from the protection provided by the Acts.
By lease, dated 18th, 19th, and 27th October 1915, the trustees acting under the trust-disposition and settlement of the deceased Mrs Annie Cecilia Macdonell or Chisholm, of Chisholm, in the county of Inverness, let to Mrs Margaret Fraser or Falconer and her son, Alexander Falconer, then tenants of the Glen Affaric Hotel, Cannich, Strathglass, All and Whole (first) the subjects at Cannich aforesaid known as the Glen Affaric Temperance Hotel, together with the stables, garden, and other subjects at present connected therewith; (second) the farm of Wester Runavraid as at present occupied by the said Mrs Margaret Fraser or Falconer and Alexander Falconer; and (third) the farm and lands of Wester Invercannich and Easter Runavraid as at present possessed by Alexander M'Erlich and John M'Erlich (but excluding and excepting therefrom the cottage at Runavraid now or lately occupied by Donald Chisholm and the gamekeeper at Balmore, together with the garden and outhouses connected therewith), lying the whole subjects hereby let in the parish of Kilmorack and county of Inverness; and that for the space of one year from and after the term of Whitsunday (twenty-eighth May) Nineteen hundred and sixteen, as to the houses, grass, fallow land, and pasture, and the separation of that year's crop from the ground as to the arable land under grain crop, and from year to year thereafter so long as the tenancy is not terminated by either party on giving to the other party at least one year's written notice before the twenty-eighth day of May in the year of waygoing of the intention to terminate the same.
In terms of the lease the tenants bound themselves to make payment to the proprietors and their successors as proprietors of the subjects let, or to their factor for the time, of (first) the yearly rent of forty pounds for the said hotel and other subjects first above described; and (second) the yearly rent of seventy-two pounds for the subjects second and third above described, which subjects it is hereby agreed are hereafter to be worked as and held to be one holding. They further bound themselves to remove from the whole subjects hereby let on the termination of their tenancy without warning or other process of removal to that effect.
The tenants entered into possession of the subjects, carried on the hotel business, and farmed the lands, the hotel being the sole dwelling-house of Alexander Falconer and his wife and family.
On 20th November 1922 the proprietors served upon the tenants a notice requiring them to remove from the hotel and buildings as at Whitsunday 1924, and from the farms and lands at the separation of that year's crop. The tenants refused to comply with this notice, and on 30th January 1924 the proprietors brought an action in the Sheriff Court at Inverness, craving that the tenants should be ordained to remove from the hotel and the stables and gardens connected with it. It was explained that the proprietors, while maintaining their full rights under the notice requiring the tenants to remove from the farms as well as from the hotel, were willing to consider reletting the farms independently to the tenants, if they desired to take them again, and it was admitted that there was a farmhouse on one of the farms which could form a suitable dwelling-house. As the parties failed to come to terms for the re-letting of the farms, the proprietors proceeded with their action. On 26th August 1924 the Sheriff-substitute (Grant), after a proof, pronounced an interlocutor ordaining the tenants to remove from the hotel, stables, and gardens as at Whitsunday 1924, and this interlocutor was affirmed on 25th September 1924 by the Sheriff (Watt) on appeal.
Thereafter the tenants presented a note of suspension, craving that the...
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