Simon Stephen V. The Most Noble Sir Guy David Innes Ker And Others
| Jurisdiction | Scotland |
| Judge | Lord Clarke |
| Neutral Citation | [2006] CSOH 66 |
| Date | 03 May 2006 |
| Court | Court of Session |
| Published date | 03 May 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 66 | |
| OPINION OF LORD CLARKE in the causes SIMON STEPHEN Pursuer; against THE MOST NOBLE SIR GUY DAVID INNES KER & OTHERS Defenders: ________________ |
Pursuer: Campbell QC; Carruthers; Russel & Aitken
Defenders: Stuart; Turcan Connell WS
3 May 2006
Introduction
[1] These two actions came before me for debate on the Procedure roll. What I shall refer to as the first of the two actions relates to two notices to quit dated 12 May 2004 and served on the pursuer by the defenders on 13 May 2004 in relation to subjects known as Meikle Geddes, Nairn. The second action relates to two notices to quit dated 12 May 2004 and served on the pursuer by the defenders on 13 May 2004 in relation to subjects known as Broomhill Farm, Broomhill, Piperhill, Nairn.
[2] In both actions the pursuer seeks a declarator that he is a tenant of the subjects in question. He also seeks reduction of the notices to quit. There is factual dispute in relation to the first action as to whether there was, in the past, a written lease which governed the tenant's interest in the subjects. It was agreed between the parties that that factual dispute is of no materiality, in the present situation, since, on any view, the situation, as at 2004 was that the lease relating to the subjects was one based on tacit relocation. It is a matter of agreement that there was never any written lease in relation to the subjects to which the second action relates. The pursuer, in both actions, makes averments concerning the designation of the landlords in the notices to quit but I was advised that any such issue was no longer being pressed by him.
[3] The parties' representatives were agreed that both actions raise the same fundamental issues and that the actions could be resolved by a decision of the court in relation to those issues without the need for enquiry.
[4] In article 2 of the second action it is averred:
"The pursuer is the tenant of the farm. There is no written Lease. Some of the lands forming the farm have been farmed by the pursuer and his ancestors since around 1830. From about 4 January 1961 the farm was leased in the joint names of Margaret Jane Stephen and James Alexander Stephen and the survivor of them. That Lease was not constituted in writing. Margaret Jane Stephen was the pursuer's grandmother. James Alexander Stephen was his father. James Alexander Stephen died on 15 October 2000. His one half pro indiviso share in the Lease passed, by operation of the terms of his Will, to the pursuer. The farm was thereafter leased from the defenders jointly in the joint names of the pursuer and said Margaret James Stephen. That Lease was not constituted in writing."
Averments in virtually the same terms appear in Article 2 of the first action. In article 3 of both actions the following averments appear:
"Following upon the death of Mrs Margaret Jane Stephen the entire tenant's interest in the Lease vested in the pursuer by operation of the common law. When one tenant in a joint tenancy dies and the deceased's interest in that tenancy does not vest in a legatee or any other nominated beneficiary, the entire tenancy accrues to the surviving tenant."
It is, furthermore, averred in article 4 of both actions, as follows:
"Margaret Jane Stephen died on 4 August 2003. In terms of her Will she bequeathed her share of and her rights in the Lease of the farm to the pursuer. On 11 March 2004 her Executors transferred her share in the Lease of the farm to the pursuer. On 25 March 2004 the pursuer served a Notice in terms of section S12 of the Agricultural Holdings (Scotland) Act 1991 ('the 1991 Act') on the defenders intimating his intention to take up his late grandmother's interest in the Lease of the farm. On 13 May 2004 the defenders as Landlords served a document, described as a Notice to Quit upon the pursuer".
In relation to both farms, the defenders, in fact, served two notices both dated 12 May 2004 and both were served on the pursuer on 13 May 2004. The first of the two notices in each case required the pursuer to remove on 15 May 2005. The second notice required him to remove on 28 May 2005. The pursuer seeks reduction of all four notices. It was explained to me, by counsel for the defenders, that two notices were served, in each case, because of some uncertainty about the ish date. This explanation is referred to by the defenders in answer 3 in each action. Nothing turns on that matter for the purposes of the present proceedings. It is, however, of importance to note certain of the terms of the notices. In the first action the notices are, in inter alia, in the following terms:
"... you are required to remove from ALL and WHOLE the interest of the late Margaret Stephen in the tenancy of ALL and WHOLE the farm and lands of Meikle Geddes, Nairn lying in the county of .... of which subjects you are now the tenant, pursuant to your Notice dated 25 March 2004, in terms of the Contract of Lease between The Right Honourable Frederick Archibald Vaughan, Earl of Cawdor and Margaret MacDonald or Stephen and William Duncan Stephen dated 29 April and 4 May, both 1909, of which you are now in right of the tenant's part, pursuant to your Notice dated 25 March 2004. This Notice is given in pursuance of sections 22(2)(g) and 25(2)(a), (b) and (d) of the Agricultural Holdings Act 1991, as amended. The tenancy has been terminated for the purpose of our clients using the land for agriculture only. This Notice is given without prejudice to the right of our client, the Landlords, to enforce any other Notice served upon you at the same time as this Notice. We would advise that, in giving this Notice, we are acting entirely for the Trustees of Cawdor Marriage Settlement Trust and are of the view that the effect of this Notice will be to bring the entire tenancy to an end, owing to the absence of the necessary consents for the operation of tacit relocation as at Whitsunday dated 2005." (emphasis added)
The second notice served in relation to the subjects to which the first action relates was in the same terms as the first notice apart from, as has been seen, the date upon which the pursuer was required to quit the subjects. In the second action the relevant notices are inter alia in the following terms:
"... you are required to remove from ALL and WHOLE the interest of the late Margaret Stephen in the tenancy of ALL and WHOLE the farm and lands of Broomhill, Piperhill, Nairn lying in the County of Nairn and within the administrative district of The Highland Council at the term of Whitsunday (15 May) 2005, of which subjects you are now the tenant, pursuant to your Notice dated 25 March 2004 in terms of the oral Lease of the said farm. This Notice is given in pursuance of Sections 22(2)(g) and 25(2)(a), (b) and (d) of the Agricultural Holdings Act 1991, as amended. The tenancy is being terminated for the purpose of our clients using the land for agriculture only. This Notice is given without prejudice to the right of our client, the Landlords, to enforce any other Notice served upon you at the same time as this Notice. We would advise that, in giving this Notice, we are acting entirely for the Trustees of the Cawdor Scottish Discretionary Trust and are of the view that the effect of this Notice will be to bring the entire tenancy to an end, owing to the absence of the necessary consents for the operation of tacit relocation as at Whitsunday 2005." (emphasis added)
Defenders' Submissions and Discussion
[5] In seeking dismissal of both actions, counsel for the defenders advised the court that the defenders' position was encapsulated in averments to be found in the first action at answer 3 page 18 which are to the following effect:
"Further explained and averred that said Notice terminates the interest in the tenancy of the late Mrs Margaret Stephen transferred to the pursuer in terms of his Notice dated 24 March 2004. In consequence, the entire tenancy comprising that interest and the interest previously bequeathed by the late James Alexander Stephen to the pursuer will terminate on the ish date"
In elaborating upon the point, counsel submitted that the defenders' position was founded on a proper approach to the operation of tacit relocation. The lease, in the subjects, prior to the death of Mrs Margaret Stephen, operated on tacit relocation from year to year. Upon her death, as I understood that the defenders' position as advanced by counsel, the lease could not thereafter be continued by tacit relocation because she could no longer provide the necessary consent, either expressly, or by implication, for the lease to continue for a further year. Counsel for the defenders submitted that the position was as follows. The lease had been held pro indiviso by the pursuer and his grandmother, Mrs Margaret Stephen. The pursuer had acquired his interest in the lease upon the death of his father, who had prior to his death been a joint tenant, along with the pursuer's grandmother. It was accepted, on behalf of the defenders, that on the death of his grandmother, the pursuer succeeded to her interest in the lease. As I understood the defenders' position they contended that this was so because of the operation of section 16 of the Succession (Scotland) 1964 which is, inter alia, to the following effect:
"16(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; and in the following provisions of this section 'interest' means an interest to which this section applies.
(2) Where an interest -
(a)
is not the subject of a valid bequest by the deceased, or
(b)
is the subject of such a bequest, but the bequest is not accepted by the legatee, or
(c)
being an interest under an agricultural lease, is the subject of such a bequest but the bequest is...
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