Smith v Grayton Estates Ltd
| Jurisdiction | Scotland |
| Judgment Date | 26 May 1960 |
| Docket Number | No. 41. |
| Date | 26 May 1960 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Landlord and TenantLease of agricultural subjectsTacit relocationJoint tenantsTermination of tenancyNotice by one of joint tenantsWhether sufficient to exclude tacit relocationAgricultural Holdings (Scotland) Act, 1949 (12 and 13 Geo. VI, cap. 75), secs. 3 (1) and 24.
The Agricultural Holdings (Scotland) Act, 1949, provides, by sec. 24, that, notwithstanding the termination of the stipulated endurance of any lease of an agricultural holding, the tenancy shall continue unless, not less than one year nor more than two years before the termination of the lease, written notice is given by either party to the other of his intention to bring the tenancy to an end. By sec. 3 (1) it is provided that, unless such notice to terminate the tenancy has been given, the tenancy shall be held to be continued in force by tacit relocation for another year, and so on from year to year.
One of two joint tenants of an agricultural holding held on tacit relocation served on the landlords, within the prescribed period, a written notice intimating his intention to remove from the holding. The other tenant wished to maintain the lease and did not consent to the notice being given.
Held (1) that, since tacit relocation was based on the implied consent of all the parties to a lease, a notice of removing by one of two joint tenants was enough to exclude tacit relocation and to terminate the lease, and (2) that notice given by one of two joint tenants was notice given by a party within the meaning of sec. 3 of the Act.
In an arbitration under the Agricultural Holdings (Scotland) Act, 1949, between Grayton Estates, Limited, the landlords, and George Arthur Innes Smith and Dudley Smith, the joint tenants of the farm of Whitfield, Ayton, Berwickshire, the arbiter, after hearing the parties in debate, issued proposed findings, and, at the request of the first tenant, stated a case for the opinion of the Sheriff of Roxburgh, Berwick and Selkirk.
The case stated that the following facts, inter alia, were admitted:"By lease dated 29th March and 1st April 1931 the then proprietor of the farm of Whitfield let the farm to the first tenant and the second tenant and the survivor of them and the heirs of the survivor for the period of fourteen years from Martinmas 1931 (i.e., until Martinmas 1945). Since that date the lease has been continued from year to year by tacit relocation. When the lease was entered into, the first and second tenants were in business partnership with one another as farmers. This partnership, which was dissolved some years ago, was not a party to the lease. On 22nd November 1958 the second tenant, through his solicitors, gave notice to the landlords, through their solicitors, that he was to remove from the farm of Whitfield at the term of Martinmas 1959. This notice was accepted by the landlords."
The following summary of the averments and contentions of the parties was stated by the arbiter:"The first tenant avers that when the lease was entered into he was resident at Whitfield, and the second tenant was resident at another farm, at Mordington Mains, and that as from 1st August 1941, as the landlords were aware, the second tenant took no further part in the management of the farm of Whitfield. He further avers that the landlords were aware that he was the effective tenant of this farm, and paid the rent, and that no demand for rent was sent to the second tenant. The second tenant avers that from the date of the lease he resided at Mordington, has never taken any active interest in the management of Whitfield, and has not received any share of the profits therefrom. The landlords believe and aver that until a few years ago both tenants took an active part in the management of the farm, but that the stock, implements and other moveable property on the farm are now the sole property of the first tenant, and that the second tenant has already left the farm and has surrendered all possession thereof. The first tenant contended that the terms of the lease indicated that the landlords were willing to accept either of the tenants as sole tenant because of the survivorship provision, that the effect of the notice by the second tenant should be held to be the same as would be the effect of his death, and that the rights of the first tenant could not be disturbed without his consent. The second tenant contended that his notice was effective quoad himself, and that he was not concerned as to its effect upon the first tenant. The landlords contended that the effect of the notice was to prevent tacit relocation of the farm of Martinmas 1959, and that neither of the tenants would thereafter have any title to occupy the farm."
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