Smith v Giuliani

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Buckmaster,Lord Dunedin,Lord Sumner,Viscount Haldane,The Lord Chancellor,.
Judgment Date25 May 1925
Judgment citation (vLex)[1925] UKHL J0525-1
Date25 May 1925
Docket NumberNo. 7.

[1925] UKHL J0525-1

House of Lords

Lord Chancellor.

Viscount Haldane.

Lord Dunedin.

Lord Sumner.

Lord Buckmaster.

Dow and Others
and
Smith.

After hearing Counsel on Monday the 30th day of March last, upon the Petition and Appeal of William Taylor Dow, residing at Netherleigh, Hagg's Road, Glasgow, and Mrs. Martha Jane Macmillan Taylor or Dow, residing at 49, Sherbrooke Avenue, Pollokshields, Glasgow, widow of David Dow, the present Trustees of the late William Taylor, acting under his Trust-Disposition and Settlement, dated 19th November 1878, and registered in the Books of Council and Session, 5th May 1881, the said William Taylor Dow, as an individual, the said Mrs. Martha Jane Macmillan Taylor or Dow, as an individual, and Leopoldo Giuliani, of 60, Argyle Street, Glasgow, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Honourable the Dean of Guild of the Burgh of Glasgow in Scotland, of the 7th of June 1923, so far as therein stated to be appealed against, and also an Interlocutor of the Lords of Session there, of the Second Division, of the 18th of January 1924, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Interlocutors, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of George Smith, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Interlocutors, in part complained of in the said Appeal, be, and the same are hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay or cause to be paid to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland or to the Lord Ordinary officiating on the Bills during the Vacation, to issue such summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.

Lord Buckmaster .

My Lords,

1

The division of a single building into a series of tenements held in fee simple in separate ownership is not a familiar incident of proprietorship in this country, but it exists, and has for a long time existed, and with the growth of flats it may become less uncommon in the future. Where it occurs the rights of the several owners are regulated either by a system of mutual covenants or by easements arising from express or implied grant or acquired by user. Lord Selborne, in Dalton v. Angus, L.R. 6, App. Cases, p. 740, says at p. 793:

"If a building is divided into floors or flats separately owned (an illustration which occurs in many of the authorities), the owner of each upper floor or flat is entitled upon the same principle" ( i.e., by implied grant) "to vertical support from the lower part of the building and to the benefit of such lateral support as may be of right enjoyed by the building itself."

2

I am unaware of any instance where the owner of any flat has been held to have any proprietary interest in the rest of the structure. It appears that in Scotland, where separate ownership of parts of a building is far more common than here, a different system prevails, and my Lord Dunedin has stated the law there applicable in terms which I accept, namely, that each proprietor of a flat is proprietor of it, but along with his proprietorship there is linked the common interest in the walls or roof as the case may be of the other proprietors, and this common interest is not a right of servitude but it is a right of a proprietary character. This distinction may be of importance in considering the terms of the statute under which the present Appeal arises, for it must be accepted that the meaning of the word "proprietor" in that Act depends upon the nature of the ownership in the buildings to which it relates. The statute, by section 381, contemplates that a part of a building only might appear to be dangerous and that a warrant might be granted to take down, secure, or repair such part of a building. It also plainly contemplates that there may be a proprietor of part of a building, and if it is only his part which appears to be dangerous he only would be cited to appear before the Dean of Guild. In the present case it appears that the whole building was dangerous—and apparently all the owners were cited, but as it appeared that the menace to the public safety would be remove, if part only of the building was taken away, the order for demolition was confined to that part alone. The question is whether in these circumstances the word "proprietor" applies only to the proprietors of that part of the building which was ordered to be taken down or included those which remain.

3

Now it appears to me that on a fair construction of the statute the proprietor prima facie refers to the owner of the entire building which has been the subject of the original report. If the building as a whole has become dangerous, as it was in the present case, all the different interests are involved in the determination of what ought to be done to remove the danger, and in fact upon the view of Scotch law to which I have already referred there would be a proprietary interest of all the owners in any floor which had to be wholly removed, although it may well be, as pointed out by Lord Dunedin, that in such a case as that of an overhanging balcony different considerations would arise. It is further to be observed that in the power as to awarding the expenses against the proprietor there is no special reference made limiting the person against whom the order is made to the owner of the particular flat which may be the subject of the order, and it appears to me a fair construction to say that if originally the whole building was dangerous, it is the proprietor of the whole building who is interested in its restoration or destruction and, consequently, that it is against him or them as a whole that the award for the expenses should be made, and this view which gives effect to the Scotch law as to common proprietary interest is, in my opinion, the true meaning of the statute.

Lord Dunedin .

My Lords,

4

Two tenements, Nos. 56 to 68, Argyle Street, Glasgow, consisted of five square storeys with basement and attics. On the 15th October 1919, the Procurator Fiscal of the Dean of Guild Court in Glasgow presented a petition to that Court in which he averred "that the petitioner had received information that the buildings in question appeared to be in a dangerous state within the meaning of the Glasgow Police Act, 1866, or are so ruinous or in such a state as to cause reasonable apprehension of immediate danger to the inhabitants, and it is necessary that the said buildings or parts thereof should be taken down or at least secured and repaired." He then craved and obtained citation upon all the various proprietors who were the separate owners of various portions of the tenements. A remit was made by the Dean of Guild to skilled persons, and on the 10th November 1919 an interim report was handed in which reported as follows: After describing the tenements it said:

"The property, which is old, was evidently erected for dwelling houses, but is now being used for an entirely different purpose involving the assemblage of machinery and the storage of heavy weights."

5

After pointing out further that the floors and outside walls were in a bad condition, it continued:

"In our opinion the building is in such a condition that a serious collapse involving the whole or part of the property might take place at any moment. We recommend, therefore, that the strain on the upper floors be relieved at once by the removal of the machinery and materials stored on them and the building thereafter taken down to the level of the first floor. In the event of the reconstruction of the upper floors the work will require to be carried out in such a manner as not to put any weight on the existing founds or on the portion of the main walls allowed to remain."

6

The machinery was accordingly removed, and in March the tenants and occupants of the upper floors were ordered to move from the premises. In June the Dean of Guild inspected the premises with his lyners. On the 21st June 1920, a renewed remit was made and a second report, which again affirmed that the whole building was in a dangerous condition, recommended, as before, that the walls should be taken down as far as the first floor and that all persons in the house should be removed. On the 1st July 1920, the Dean of Guild pronounced a renewed order for the building to be taken down to the level of the first floor, and for this purpose granted a warrant to the Procurator Fiscal in terms of the statute. He also warned out all the tenants and occupants of the ground floors.

7

The work was duly done by the Procurator Fiscal and the cost thereof came to £3,193 6 s. 2 d. The Master of Works made an allocation upon the principle of apportioning that sum in proportion to the valuation in the valuation roll of each of the separate properties. This apportionment was acquiesced in by all concerned, except the proprietors of the ground floors, who, while not quarrelling with the figures, contended that they were not liable for any sum at all,...

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