Marie Marion Mcgrath And Another V. Thomas Lorne Nelson
| Jurisdiction | Scotland |
| Judge | Lady Dorrian |
| Neutral Citation | [2010] CSOH 149 |
| Court | Court of Session |
| Published date | 12 November 2010 |
| Year | 2010 |
| Date | 12 November 2010 |
| Docket Number | A850/09 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 149 | |
| A850/09 | OPINION OF LADY DORRIAN in the cause MARIE MARION McGRATH and another Pursuers; against THOMAS LORNE NELSON Defender: ________________ |
Pursuer: Peoples QC, Harper Macleod
Defender: Agnew of Lochnaw QC, Wright Johnston & Mackenzie
12 November 2010
[1] The pursuers are the majority of the executors dative of the late Mrs Margaret MacLean, who was tenant of Achaleven Croft, Connell, Argyll, and who died intestate on 23 August 2006. Neil MacLean, the deceased's husband and the third executor, is not a party to the action. It appears that, at least at the date of the summons, he continued to reside at the croft. The defender is the landlord of said croft. The question which arises in this case is whether the pursuers have relevantly averred a valid transfer by them to Josephine McGrath of Mrs MacLean's interest as tenant. They aver that they did so by virtue of first, written intimation by them as majority executors to the defender on 6 February 2007 of the nomination of Miss McGrath as successor to said interest and secondly, confirmation issued on 24 December 2007. They seek declarator of the transfer and declarator that a notice by the defender dated 14 September 2009 purporting to terminate the tenancy in terms of sections 16(3) and (4) of the Succession (Scotland) Act 1964 is invalid. They also seek reduction of said notice.
[2] It is helpful at the outset to set out the statutory provisions which apply.
Section 14 of the Succession (Scotland) Act 1964 ("the 1964 Act") provides that on the death of any person, every part of his estate falling to be administered under the law of Scotland, "shall, by virtue of confirmation thereto, vest for the purposes of administration in the executor thereby confirmed and shall be administered and disposed of according to law by such executor".
[3] Section 15 of that Act provides that where any heritable property has so vested in an executor, and it is necessary for him in distributing the estate to transfer that property to certain qualifying persons, the executor may effect that transfer by endorsing on the confirmation a docket in favour of that person.
[4] Section 16 relates to leases and, at the relevant time, was in the following terms:
"(1) This section applies to any interest, being the interest of a tenant under a lease, which is comprised in the estate of a deceased person and has accordingly vested in the deceased's executor by virtue of section 14 of this Act; ..........
(2) Subject to subsection (4A), where an interest -
(a) is not the subject of a valid bequest by the deceased.........
and there is among the conditions of the lease (whether expressly or by implication) a condition prohibiting assignation of the interest, the executor shall be entitled, notwithstanding that condition, to transfer the interest to any one of the persons entitled to succeed to the deceased's intestate estate, or to claim legal rights or the prior rights of a surviving spouse or civil partner out of the estate, in or towards satisfaction of that person's entitlement or claim,
(3) Subject to subsection (4C), if in the case of any interest -
(a) at any time the executor is satisfied that the interest cannot be disposed of according to law and so informs the landlord, or
(b) the interest is not so disposed of within a period of one year or such longer period as may be fixed by agreement between the landlord and the executor or, failing agreement, by the relevant court on the application of the executor -
(ii)........ from the date of the death of the deceased,
either the landlord or the executor may, on giving notice in accordance with the next following subsection to the other, terminate the lease (in so far as it relates to the interest) notwithstanding any provision therein, or any enactment or rule of law, to the contrary effect."
[5] Section 11 of the Crofters (Scotland) Act 1993, ("the 1993 Act") provided at the relevant time as follows:
"(1) where, owing to the failure of a crofter to bequeath the tenancy of his croft or of such a bequest to receive effect, the right to the tenancy of the croft falls to be treated as intestate estate of the deceased crofter in accordance with Part I of the 1964 Act, and the tenancy is transferred in pursuance of section 16(2) of that Act, the executor of the deceased crofter shall as soon as may be furnish particulars of the transferee to the landlord, who shall accept the transferee as tenant; and the landlord shall notify the Commission accordingly.
(2) If at the expiry of a period of 3 months commencing with the relevant date the executor has not furnished to the landlord particulars of any transferee in accordance with subsection (1) above, the landlord shall forthwith notify the Commission to that effect.
(3) In this section "the relevant date" means -
(a)...
(b) where the deceased crofter has otherwise failed to bequeath the tenancy, the date of death of the deceased crofter;....
(4) if at the expiry of said period of three months it appears to the Commission, whether from a notification under subsection (2) above or otherwise, that the executor has not furnished to the landlord particulars of any transferee in accordance with subsection (1) above, the Commission may give notice in such manner as they think proper, whether by advertisement or otherwise, to persons who may claim to be entitled -
(a) to succeed to the intestate estate of the deceased crofter, or.....
(b) to claim legal rights or prior rights of a surviving spouse or civil partner out of that estate
requiring them if they desire to have the tenancy of the croft transferred to them in or towards satisfaction of their entitlement or claim to give intimation accordingly to the Commission before such date as may be specified in the notice, being a date not earlier than 6 months after the relevant date; and the Commission may, subject to subsection (5) below, nominate as successor to the tenancy any one of the persons who have so given intimation.
(Subsection (5) requires the Commission to consult with the executors before making a nomination).
(6) The Commission shall give notice to the landlord of any person nominated by them in pursuance of subsection (4) above, and the landlord shall accept that person as successor to the tenancy of the croft.
(7) The nomination by the Commission, in pursuance of subsection (4) above, of any person as successor to the tenancy of the croft shall transfer the interest of the tenant under that tenancy to that person, and such transfer shall be in or towards satisfaction of that person's entitlement or claim in the intestate estate of the deceased crofter."
[6] Section 23 of the Crofters (Scotland) Act 1993 applies where a croft has become vacant, by operation of section 16(3) of the 1964 Act or otherwise. The landlord must give notice to the Commission and by virtue of subsection 3 he cannot let the croft without the permission of the Commission. Any such let is null and void and the occupier of the croft may be served by the Commission with a notice to give up occupation. Under subsection 5, where a croft is vacant the Commission may require the landlord, within a specified time scale, to submit his proposals for relating the croft, and if he does not do so, the Commission may re-let the croft.
[7] Finally, section 4 of the Executors (Scotland) Act 1990 provides as follows:
"In all cases where confirmation, is or has been granted, in favour of more executors dative then one, the powers conferred by it shall accrue to the survivors or survivor, and while more than two survive a majority shall be a quorum, and each shall be liable only for his own acts and intromissions."
The Pleadings
[8] The pursuers aver that at a meeting on 23 January 2007, the majority of the trustees took a decision at the end of that meeting to transfer the tenancy to Josephine McGrath. They then aver that "In implement of their said decision, they instructed the executry's law agents, MacPhee & partners to notify the landlord of the nomination of Josephine. The letter of 6 February was sufficient to effect an immediate transfer of the tenancy to Josephine. Section 16(2) of the 1964 Act did not require the pursuers to do more than they in fact did in order effectively to transfer the tenancy to Josephine." In the first conclusion they seek declarator that the interest was transferred by virtue of the written intimation of 6 February and the subsequent confirmation of the executors to the interest. The letter of 6 February 2007 (6/1 of process) is in the following terms:
"The Executors of the late Mrs Margaret MacLean, acting under and in terms of Sect.4 of the Executors (Scotland) Act 1900, hereby nominate Miss Josephine McGrath, residing at ....to succeed to the tenancy of (One) Achaleven Croft and (two) to be put forward for a new short-assured tenancy of Achaleven farmhouse.
Josephine would intend to personally reside in the farmhouse and personally operate the croft as soon as these transfers have been completed. We believe she is already known to you. However, should you require any further personal or other information in order to deal with this nomination, do please let us know."
[9] It is averred that "The effect of intimation to the landlord of the nomination of Josephine was to transfer the tenancy to her with immediate effect."
[10] The defender admits that he furnished the particulars of Miss McGrath, as intimated in this letter, to the Crofters Commission but the circumstances in which they did so are averred as follows:
"Further explained and averred that there has been an ongoing family dispute between Neil MacLean and the pursuers as who should succeed to the tenancy of the croft. Neil MacLean, as an executor, purported to nominate himself to be tenant of the croft on or about 16 November 2006 and the pursuers' purported nomination followed thereon on 6 February 2007....
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