William Allen+ann Allen And Others V. Thomas Matthew Mactaggart+fiona Mary Hendry Or Mactaggart
| Jurisdiction | Scotland |
| Judge | Lord Kingarth,Lord Marnoch,Lord Nimmo Smith |
| Neutral Citation | [2007] CSIH 24 |
| Date | 30 March 2007 |
| Docket Number | XA18/06; |
| Court | Court of Session |
| Published date | 30 March 2007 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Nimmo Smith Lord Kingarth Lord Marnoch | [2007] CSIH 24 XA18/06; XA13/06; XA14/06; XA12/06; XA11/06 and XA16/06 OPINION OF THE COURT delivered by LORD NIMMO SMITH in the Appeal under Section 11(1) and (7) of the Tribunals and Inquiries Act 1992 by WILLIAM ALLEN AND ANN ALLEN AND OTHERS Applicants and Appellants; against THOMAS MATTHEW MACTAGGART AND FIONA MARY HENDRY or MACTAGGART Respondents: _______ |
Alt: Upton; Lindsays, W.S. (Respondents)
30 March 2007
Introduction
[1] Rascarrel Bay lies on the Scottish coast of the Solway Firth, in the old Stewartry of Kirkcudbright. Above it lies Rascarrel Farm, of which the respondents have been heritable proprietors since 1997. The nearest settlement of any size is Auchencairn, while the nearest towns are Kirkcudbright, Castle Douglas and Dalbeattie. Dumfries is situated further afield. Next to the shoreline at the west end of Rascarrel Bay stand eight huts, four to the west and four to the east of the Rascarrel Burn, numbered 1 - 8. A vehicle access track leads to huts Nos. 5, 6, 7 and 8. A footpath leads across the Rascarrel Burn by a bridge to huts Nos. 1, 2, 3 and 4.
[2] The present appeals relate to six of these huts, Nos.2 - 7 inclusive. All eight huts were the subject of applications to the Lands Tribunal for Scotland ("the Tribunal") under section 21(1) of the Land Registration (Scotland) Act 1979 ("the 1979 Act"), in which the applicants claimed to be the tenants-at-will of the huts, and as such entitled under section 20(1) of the 1979 Act, in accordance with that section, to acquire the landlords' interest as such in the land which was subject to the tenancies-at-will. The respondents as landlords lodged answers to the applications. By interlocutor dated 9 December 2005 in all eight processes the Tribunal, having heard counsel for the parties in debate, sustained the respondents' first pleas-in-law, being pleas to the relevancy of the applicants' averments, and dismissed the applications. The application relating to hut No.1 was made by Patrick Harbinson, so the opinion of the Tribunal was issued sub nom. Patrick Harbinson and Others v Mr and Mrs Thomas Mactaggart. The present appeals are brought under section 11(1) and (7) of the Tribunals and Inquiries Act 1992 by William and Ann Allen (hut No.6), McDonald Boyes and Irvine Boyes (hut No.2), Kathleen Downes (hut No.7), Thomas McDougall (hut No.5), Norman Milligan and Christine Milligan (hut No.4) and Samuel Walker (hut No.3) ("the appellants").
The legislation
[3] The 1979 Act is, according to its long title:
"An act to provide a system of registration of interests in land in Scotland in place of the recording of deeds in the Register of Sasines; ... to enable tenants-at-will to acquire their landlords' interests in the tenancies; ...".
Part IV, "Miscellaneous and General", starts with provisions in sections 20 - 22 relating to tenants-at-will. Section 20 provides by sub-section (1):
"A tenant-at-will shall be entitled, in accordance with this section, to acquire his landlord's interest as such in the land which is subject to the tenancy-at-will (hereinafter referred to as the 'tenancy land')."
The following sub-sections enable a tenant-at-will who wishes to acquire his landlord's interest under section 20 to serve notice on him and to pay compensation and expenses to him, in exchange for which the landlord is obliged to convey his interest in the tenancy land to his tenant-at-will, free of all heritable securities. By sub-section (8), as originally enacted, the expression "tenant-at-will" was defined as meaning a person:
"(a) who, not being -
(i) a tenant under a lease;
(ii) a kindly tenant; or
(iii) a tenant or occupier by virtue of any enactment,
is by custom and usage the occupier (actual or constructive) of land on which there is a building or buildings erected or acquired for value by him or any predecessor of his;
(b) who is under an obligation to pay a ground rent to the owner of the land in respect of the said land but not in respect of the building or buildings on it, or would have been under such an obligation if the ground rent had not been redeemed; and
(c) whose right of occupancy of the land is without ish."
Paragraph (a)(ii) ceased to have effect and was repealed by the Abolition of Feudal Tenure etc. (Scotland) Act 2000 "the 2000 Act", section 76, schedule 12 para.6 and schedule 13, with effect from 28 November 2004. We refer below to the effect of section 64 of the 2000 Act.
[4] The meaning of the word "redeemed" in section 20(8)(b) of the 1979 Act may be discovered by reference to the Land Tenure Reform (Scotland) Act 1974 ("the 1974 Act"), sections 4 and 5 (which were repealed by schedule 13 to the 2000 Act with effect from 28 November 2004). Section 4 inter alia conferred upon a proprietor of land which was burdened by a feu duty the right to redeem it by serving notice of redemption upon the superior. Section 5 inter alia made redemption of an allocated feu duty obligatory upon the date when entry was taken under a conveyance of the feu for valuable consideration (as on a sale of the dominium utile) or under an obligation to grant such a conveyance. By section 4(7) the expression "feu duty" was defined as including inter alia any perpetual periodical payment in respect of the tenure, occupancy or use of land or under a land obligation, and by section 5(12) that definition applied in relation to section 5 with certain modifications which did not affect the words just quoted.
[5] By section 21 of the 1979 Act any question arising under section 20 as to inter alia whether a person is a tenant-at-will is to be determined by the Tribunal. Section 22, which is not relevant for present purposes, relates to the position of heritable creditors.
Tenancies-at-will
[6] The expressions "tenant-at-will" and "tenancy-at-will" are not defined in section 20 of the 1979 Act, beyond the provisions of sub-section (8) which, partly by exclusion and partly by inclusion, set out some indicia but not an exhaustive definition. Parliament clearly intended these expressions to be understood as terms of art, so it is necessary to consider how lawyers experienced in land tenure would have understood them at the time that the 1979 Act was passed. This in turn requires an examination of their history, so far as the relatively limited materials permit.
[7] It is convenient at this point, because its position is clearer, to refer to the customary "system of land tenure whereby the persons known as the Kindly Tenants of Lochmaben hold land on perpetual tenure without meaning to procure infeftment": see section 64(1) of the 2000 Act. Such persons, most fully named the King's (or Crown's) Kindly Tenants of the Four Towns of Lochmaben, traced their system of tenure to the days of Robert I. "Kindly" in this context meant hereditary. The kindly tenancy was held of the Crown, and was vouched by entry in the Rent Roll kept by the Chamberlain of the Earl of Mansfield, the Crown Steward: see Gretton, "The Feudal System", para.72, in Reid, The Law of Property in Scotland (1996); and Gordon, Scottish Land Law, 2nd ed. (1999), paras.19-15. Their tenure was described as "not feudal and yet not truly allodial", but "a right which amounts to full proprietorship": Royal Four Towns Fishing Association v Assessor for Dumfriesshire 1956 S.C. 379, following Marquis of Queensberry v Wright (1838) 16 S. 439. In the Scottish Law Commission Report on Abolition of the Feudal System (Scot Law Com. No.168) (1999) it was recommended that kindly tenancies be abolished and converted to ownership as part of the scheme of abolition of the feudal system. This recommendation was implemented by section 64 of the 2000 Act, with effect from 28 November 2004. As has been seen, kindly tenants were distinguished from tenants-at-will by section 20(8)(a)(ii) of the 1979 Act; but the two forms of tenure may be seen from the provisions of that sub-section to have had certain features in common, and it is noteworthy that kindly tenants were regarded as being the equivalent of owners of the land occupied by them, albeit without infeftment.
[8] There is much less authority relating to tenants-at-will than there is about kindly tenants. No mention of the former is to be found in the institutional writers, though it would seem likely that they were synonymous with rental-rights, in respect of which Bell, Principles, para.1279 states:
"They were enrolled in the rental book of the King's stewart, or in that of their lord; and this, or a copy of the entry, was their sole title. They came to be admitted to a sort of hereditary right; their widows being permitted to continue their possession, and their sons to succeed. Rental-rights had no ish, or term of expiration; ..."
Rental-rights were described in Rankine, Leases, 3rd ed. (1916) in historical rather than current terms. Prior to this, however, the existence of tenancies-at-will was recognised in the Report from the Select Committee on Feus and Building Leases (Scotland) (1894), pages ix - x. The committee advised that "provision should be made by legislation for the enfranchisement of building leases in Scotland, whether these leases are for a term of years or upon a tenancy-at-will" but no legislation ensued. In Chapter XXIII of the Report of the Royal Commission on the Housing of the Industrial Population of Scotland Rural and Urban (Cd. 8731, 1917) tenancies-at-will received a fuller treatment than in the earlier report, and a similar recommendation was made. Again, no legislation followed, though attempts were made by Bills introduced into the House of Commons in 1927 and 1935 to provide for the conversion of long leases into feus.
[9] The fullest treatment of tenancies-at-will is to be found in the Report of the...
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