Reclaiming Motion By Baroness Miranda Van Lynden Against Colin Gilchrist
| Jurisdiction | Scotland |
| Judge | Lord President,Lady Clark Of Calton,Lord Brodie |
| Judgment Date | 06 September 2016 |
| Neutral Citation | [2016] CSIH 72 |
| Court | Court of Session |
| Published date | 06 September 2016 |
| Docket Number | A512/00 |
| Date | 06 September 2016 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 72
A512/00
Lord President
Lord Brodie
Lady Clark of Calton
OPINION OF LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motion
by
BARONESS MIRANDA VAN LYNDEN
Pursuer and Reclaimer;
against
COLIN GILCHRIST
Defender and Respondent:
Act: CHS MacNeill QC, Martin-Brown; Gillespie MacAndrew LLP
Alt: Duthie; Drummond Miller LLP
6 September 2016
[1] It is not disputed that chalet 25 acceded to the land upon which it was built and therefore falls to be regarded as part of the heritage for the purposes of determining its present ownership. I agree therefore that the pursuer is entitled to a declarator to that effect. The remaining issue, of whether the pursuer is entitled to interdict the defender from removing the chalet, falls to be tested as at the point immediately before the termination of the lease and sub-lease, when the pursuer obtained an interim interdict.
[2] The contention in the grounds of appeal, that any right to sever was a personal one and therefore did not transmit against the landlord’s successor in title (ie the pursuer), was abandoned. The case therefore proceeded as if it were a dispute between the original parties to the lease and sub-lease.
[3] A tenant has no general right to remove items which he has fixed to the land. There are exceptions to this in the case of trade fixtures and agricultural tenancies. However, neither is pled. Although there was a late attempt at the end of the hearing of the reclaiming motion, following questions from the Bench, to amend the defender’s pleadings to refer to the chalets being trade fixtures (which they may well be for the purposes of the head lease), such an attempt came too late, relative to the date of the hearing, to be permitted, given the extraordinary history of this litigation.
[4] It is not disputed that an owner of heritage can contract to confer a right or obligation upon a tenant, or any third party, to sever items fixed upon his land. Clause ninth of the head lease required the tenants to build “houses” on the land leased. The tenants were entitled to “sell” these houses to third parties, who would thereby become sub-tenants of the relative ground. Since the houses would have acceded to the heritage, a question arises as to how the tenants could sell the houses at all. The answer to that is contained in clause ninth whereby the houses were to be treated as “tenant’s improvements”, a term peculiar to agricultural tenancies (see now the Agricultural Holdings (Scotland) Act 1991, s 34) whereby, for example, the tenant would be entitled to remove a fixture or claim compensation for any fixture which he had been required to build (cf ibid s 18).
[5] Clause ninth states that all buildings erected by the tenants “shall be” removed at the termination of the lease and the subjects returned to their original condition. Although it does not say so expressly, this undoubtedly created an obligation on the tenants to remove the buildings, including the chalets, at the end of the lease. Although, in certain situations, this might be regarded purely as an obligation on the tenants which might be waived, there is no suggestion of any such waiver here (unless the act of seeking an interdict is so interpreted). In regulating his own position, a tenant would be entitled, if not expected, to proceed on the basis that he would require to remove the chalets at the appropriate time; a matter which may result in expense but may also have compensatory benefits in the form of the value of the fixtures. At all events, viewed at the point immediately before the lease’s termination, it would not be possible to classify the performance of this obligation by the tenants as a civil wrong which the landlord might interdict. On the contrary, the creation of the obligation to remove the chalets would appear, on the ratio of Ferguson v Paul (1885) 12 R 1222, to involve an implied agreement that this is what would happen (see Lord Ordinary (McLaren) at 1227 “agreement”; Lord Craighill at 1228 “understanding”; LJC (Moncrieff) at 1229 “specified or implied agreement”).
[6] The question then is whether, although the tenants might not be interdicted, a sub-tenant, namely the defender, could be prevented from carrying out any equivalent obligation in the sub-lease. The short answer to that must be in the negative in the absence of a right dependent upon the terms of clause ninth.
[7] It is clear from the terms of clause fifteenth in the sub-lease that the tenants did regulate their position on the basis that the chalet would be removed at the end of the lease, since they did not just repeat the obligation to remove, contained in the head lease, in the sub-lease, but offered their sub-tenant an option to remove “the bungalow” rather than accept payment of £3,500 or oblige the tenant to sell the chalet on the open market. Put another way, following upon the terms of clause ninth in the head lease, the tenants proceeded on the basis that what was contracted for in the head lease by way of removal of the chalet would happen. They acted accordingly in their relations with the sub-tenant, namely the defender. From the defender’s point of view, upon considering the terms of his sub-lease, he would have been entitled, upon reading the head lease, to proceed on the basis that he had a valid option to remove the chalet, since such an option was consistent with the more general obligation on the tenant in the head lease.
[8] For all of these reasons, which accord broadly with those of Lord Brodie, to whom I am grateful for setting out the facts and issues for determination, I agree that the reclaiming motion should be allowed to the extent of sustaining the pursuer’s second plea-in-law, repelling the defender’s seventh plea-in-law and granting the declarator. However, the pursuer’s third plea-in-law should be repelled, the defender’s sixth plea-in-law sustained and decree of absolvitor from the second conclusion should be pronounced.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 72
A512/00
Lord President
Lord Brodie
Lady Clark of Calton
OPINION OF LORD BRODIE
in the reclaiming motion
by
BARONESS MIRANDA VAN LYNDEN
Pursuer and Reclaimer;
against
COLIN GILCHRIST
Defender and Respondent:
Act: CHS MacNeill QC, Martin-Brown; Gillespie MacAndrew LLP
Alt: Duthie; Drummond Miller LLP
6 September 2016
Introduction
[9] This is a reclaiming motion in an action where the summons passed the signet on 29 February 2000. It concerns a wooden chalet constructed as a holiday residence. The chalet is situated on the Ballimore Estate, Otter Ferry, Argyll (“Ballimore”). It is designated chalet number 25. The single issue in the reclaiming motion is whether the former sub‑tenant of Chalet 25, who is the defender and respondent, can lawfully remove the chalet from the solum to which it is physically attached and to the ownership of which parties are agreed it has acceded. The respondent claims to be entitled to do so by virtue of the terms of his sub-lease, notwithstanding that that would involve the severance of the chalet from the land of which, as a matter of property, it has become part. The respondent has intimated that he is entitled to remove it and that he intends to do so. The pursuer and reclaimer contends that because the chalet has acceded to Ballimore and she is heritable proprietor of Ballimore, she is entitled to prevent removal of the chalet. She seeks declarator to that effect and interdict against the defender from dismantling or removing the chalet.
Procedure
[10] On 29 February 2000 the pursuer and now reclaimer obtained interim interdict on an ex parte application against the defender and now respondent from dismantling or attempting to dismantle or remove Chalet 25. Thereafter, although it would appear that defences were lodged and the record closed, little happened and the cause fell asleep. So it remained until 3 April 2014 when, on the unopposed motion of the respondent, the cause was restored to the adjustment roll. I would understand that this was prompted by the reclaimer having given notice to the respondent (by letter dated 25 November 2013) that he should remove his belongings from Chalet 25 by 31 December 2013, he having not done so and the reclaimer having raised proceedings for removal in the sheriff court. The sheriff court proceedings are currently sisted.
[11] A procedure roll debate in the action was fixed for 5 February 2015 but discharged and a proof before answer allowed. The cause called for proof before the Lord Ordinary on 30 June 2015. By that date parties had entered into two joint minutes of admission, these being respectively numbers 24 and 25 of process, which were lodged in court on 30 June. Paragraphs 14 to 33 of number 24 of process describe Chalet 25, its mode of construction and degree of physical attachment to the solum beneath it, but insofar as these matters bear on the question as to whether it has acceded to and therefore become part of the land of which the reclaimer is proprietor, they were superseded by number 25 of process in terms of which parties agreed that Chalet 25 has acceded to the heritable property owned by the reclaimer.
[12] At the proof on 30 June 2015 the parties were agreed that the case could be determined on the basis of submissions and the admissions in the pleadings and in the joint minutes. Having heard oral submissions and considered written submissions on 1 July 2015 the Lord Ordinary made avizandum. On 5 November 2015 he sustained the second, sixth and seventh pleas-in-law for the defender and now respondent, and repelled all the pursuer and reclaimer’s pleas-in-law. Before this court Mr Calum MacNeil QC, who appeared on behalf of the reclaimer, made certain criticisms of the terms in which the interlocutor of 5 November 2015 is framed. While I see the force of these criticisms and while I accept that given the concession made by the...
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