Turnbull v Millar
| Jurisdiction | Scotland |
| Judgment Date | 17 July 1942 |
| Docket Number | No. 45. |
| Date | 17 July 1942 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Landlord and TenantTermination of leaseCompensation for improvementsImprovements requiring landlord's consentConditional consent to compensationAbsence of consent to compensationPlanting fruit bushesErection of shedsAgricultural Holdings (Scotland) Act, 1923 (13 and 14 Geo. V, cap. 10), secs. 1 (1), 2, 45, and 46, and First Schedule, Part ISmall Landholders and Agricultural Holdings (Scotland) Act, 1931 (21 and 22 Geo. V, cap. 44), First Schedule, Part I.
The Agricultural Holdings (Scotland) Act, 1923, provides, sec. 1, that a tenant of a holding at the end of his tenancy shall "subject as in this Act mentioned" be entitled to obtain compensation for any improvement he has made on the holding; but, sec. 2, that compensation "under this Act" shall not be payable in respect of any improvement comprised in Part I of the First Schedule (for which is now substituted Part I of the First Schedule to the Small Landholders and Agricultural Holdings (Scotland) Act, 1931), unless, prior to its execution, the landlord's consent in writing has been obtained; any such consent may be given unconditionally "or upon such terms as to compensation or otherwise as may be agreed upon," and "any compensation payable under the agreement shall be substituted for compensation under this Act." It is provided by sec. 45 that "subject to the provisions of this Act" any agreement by a tenant which takes away or limits his right to claim compensation under the Act shall be void, and, by sec. 46, that "except as in this Act expressed" nothing in the Act shall prejudicially affect any rights of a landlord or a tenant at common law or under statute.
The lease of a holding contained the landlord's consent to the cultivation of fruit and to the erection of the necessary sheds by the tenant, and provided that the tenant might claim compensation for the unexhausted value of the fruit bushes at the termination of the lease, such claim to be intimated not later than a specified date before the termination of the lease. No provision with regard to compensation was made in the case of sheds. The tenant did not intimate a claim within the specified period, but after the termination of the lease he claimed compensation for improvements, upon the statutory scale, for fruit bushes and sheds left by him upon the ground. These improvements both fell within Part I of the Schedule, but the tenant's contention was that any agreement which in fact resulted in a tenant receiving no compensation for any improvement was void under the Act of 1923.
Held (diss. Lord Jamieson) that under the Act of 1923 an agreement which gave only a conditional right to compensation and one which gave no right were both legal, and, accordingly, that in the present case the tenant was not entitled to compensation either for the bushes or for the sheds.
In an arbitration under the Agricultural Holdings (Scotland) Acts, 1923 and 1931,1 between Frank Turnbull, Jesmondene,
Blairgowrie, the landlord of an area of ground extending to 9 1/4 acres which formed part of the farm of Blacklaw, Bendochy Parish, in the County of Perth, and Charles Millar, Rhodes Cottage, Rattray, as outgoing tenant of the holding, the Arbiter nominated by the parties issued proposed findings dealing with claims by the tenant under Part I of the First Schedule to the Act of 1931 in respect of the erection of sheds and the planting of raspberry bushes, and he thereafter stated a case for the opinion of the Sheriff of Perth and Angus on a question of law.
The case stated, inter alia:"3. The holding was let for the period of fifteen years from Martinmas (28th November) 1925, by the said Frank Turnbull to the said Charles Millar by lease dated 20th and 23rd February 1926. The said lease (hereinafter referred to as the lease) is herewith produced and is referred to for its terms.2 4. In accordance with notice given by him on 7th November 1939 the tenant quitted the holding at Martinmas, 1940. Of the 9 1/4 acres of which the holding consists, the whole of it was at the latter date under raspberry bushes of varying ages. There were also on the holding and left by the tenant at his outgo certain sheds which had been erected by him thereon and had been used by him in connection with the cultivation
of the holding. 5. On 20th November 1940 the tenant rendered particulars of claims to the landlord in the following terms:
I.Claims under Part I, First Schedule, Act 1931.
Erection, alteration or enlargement of Buildings:
Sheds belonging to tenant |
60 |
0 |
0 |
One-quarter share of stable |
10 |
0 |
0 |
Planting of Orchards or Fruit Bushes: |
|||
3 acres Raspberries 3 years old |
290 |
0 |
0 |
2 acres Raspberries 6 years old |
192 |
10 |
0 |
3 acres Raspberries 8 years old |
158 |
13 |
4 |
II.Claims under Third Schedule, Act 1923.
[Here followed particulars of claims.]
On 28th November 1940 the said Frank Turnbull rendered to the tenant particulars of claims amounting to 59. These claims made by the tenant and by the landlord respectively are those referred to in the said nomination and are those now before the Arbiter. No question however arises in this case as to these claims of 59. 6. The Arbiter inspected the holding and thereafter proof was led and parties were heard on the legal questions involved, particularly in the tenant's claims. Although the tenant's claims are made alternatively under the First or Third Schedules of the Agricultural Holdings (Scotland) Acts, 1923 and 1931, the tenant subsequently withdrew his claim so far as founded on section 42 and the Third Schedule to the Act of 1923. Accordingly, this case is confined to questions arising on the tenant's claim for compensation under Part I of the First Schedule of the Act of 1931 and the relative sections of the statutes. The tenant has also departed from the item of his claim dealing with his share in the stable, as the said stable was not an improvement erected on his holding. 7. The Arbiter's findings in fact, so far as relevant to questions now arising are as follows:(1) The tenant did not, in terms of article seventh of the said lease, intimate to the landlord on or before 31st July 1940 any claim for unexhausted value in respect of the fruit bushes or plants or of posts and wires. The first intimation of the tenant's claim was contained in the particulars forwarded by the tenant on 20th November 1940 as above set forth. (2) On 9th August 1940 the landlord gave notice in terms of the lease to the tenant that all raspberry canes, bushes, posts, wires and sheds should be removed by the tenant from the holding on or before 28th November 1940. The tenant did not remove these things but, as already stated, left them on the holding and they were still there on the occasion of the Arbiter's inspection early in 1941. (3) The holding was not during the period immediately preceding the tenant's waygoing cultivated by him according to the rules of good husbandry on the most approved rules of fruit growing. (4) The parties admitted that the holding was an agricultural holding within the meaning of the statutes, and that the lease constituted proof of written consent by the landlord to the planting of the fruit bushes and the erection of the sheds on the terms contained in the lease. (5) The areas and ages of the rasp bushes on the holding at the date of the tenant's quitting were in accordance with the particulars given in the tenant's claim as above set forth. 8. The tenant's contentions on the legal grounds of his claim under Part I of the First Schedule of the Act of 1931 and the relevant sections of the statutes were as follows:(1) The statutes and particularly sections 1 and 2 of the 1923 Act give the tenant an indefeasible right to compensation for improvements comprised within the First Schedule provided that in the case of improvements within Part I of that Schedule (such as those now claimed for) the landlord's consent in writing had previously been given to the execution of the improvement. Every such consent by the landlordand it is admitted that the necessary consent was given in the present caseimplies liability for compensation. Section 2 of the 1923 Act provides for any compensation which was payable under the agreement whereby consent to the improvement was given being substituted for compensation under the Act, but the said section does not authorise or sanction an agreement which provides that the tenant is to get no compensation for the improvement or which adjects to his right to compensation any collateral stipulation as to notice or otherwise which might deprive the tenant of getting any compensation at all. All such agreements and collateral stipulations are void under section 45 of the 1923 Act, and it is only compensation which is payable under the agreement which is or can by section 2 be substituted for compensation under the Act. If there is no compensation payable under the agreement, there is nothing to substitute for the statutory compensation. Thus compensation under the Act is payable unless the agreement provides for a payment being made in lieu thereof. (2) As regards the fruit bushes the lease provides that the tenant at his outgo is to be paid the unexhausted value of the bushes and their posts and wire, but adjects to this a stipulation which deprives him of any compensation unless he gave notice of his claim before a certain date. This adjected condition is illegal and void by virtue of section 45 of the 1923 Act, and, accordingly, the tenant remains entitled to get the unexhausted value of the bushes and of the posts and wire necessary for and used in their cultivation. (3) As regards the sheds the lease provides that the landlord was not bound to take them over, and, accordingly, would not have to pay any compensation for them. This provision is void by virtue of said section 45, and the result is that, as the lease provides for no payment for the sheds being made, the tenant is entitled to...
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