William Grant And Sons Distillers Limited V. Alexander Mcclymont (ap)
| Jurisdiction | Scotland |
| Judge | Lord Marnoch,Lord Eassie |
| Neutral Citation | [2009] CSIH 8 |
| Court | Court of Session |
| Published date | 17 February 2009 |
| Date | 17 February 2009 |
| Docket Number | XA159/07 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lord Hardie Lord Marnoch | [2009] CSIH 8 XA159/07 OPINION OF THE COURT delivered by LORD MARNOCH In Appeal by the Pursuers In causa WILLIAM GRANT & SONS DISTILLERS LIMITED Pursuers and Appellants: against ALEXANDER McCLYMONT (AP) Defender and Respondent: _______ |
Act: Cormack, solicitor advocate; McGrigors, LLP
Alt: Stalker, advocate; Shelter Scottish Housing Law Centre
17 February 2009
[1] In this case the pursuers, as successors in title to the South of Scotland Electricity Board, seek decree for recovery of possession of a dwelling house occupied by the defender known as Number 2 Cottage, Chapeldonan, Girvan. The basis of their doing so is that the defender occupies that house under a "short tenancy" within the meaning of Section 9 of the Rent (Scotland) Act 1984 - "the 1984 Act". This is disputed by the defender.
[2] The sheriff found for the defender and after procedure by way of Stated Case the Sheriff Principal adhered to the sheriff's interlocutor. The case now comes before us on appeal from the Sheriff Principal, he having certified that the cause is suitable for that purpose.
[3] The only point now in dispute between the parties is whether or not the tenancy agreement in question complies with the requirement of Section 9(1)(c) of the 1984 Act which reads as follows:-
"(c) the tenancy agreement does not contain any provision whereby the landlord may terminate the tenancy before the expiry of the said specified period (1-5 years) other than for non-payment of rent or for breach of any other obligation of the tenancy;".
[4] Clauses 1-11 inclusive of the tenancy agreement in question set out a number of customary provisions and then follow clauses 12 and 13 which are in the following terms:-
"12. The obligations hereby undertaken by you are undertaken jointly and severally and will be implemented to our reasonable satisfaction and the Board's Agents will be entitled as Landlords to look over the subjects let at any reasonable time or times.
13. If, in our opinion, you fail to implement any of the conditions of this Lease or fail to pay any monthly rent within fourteen days of it falling due (whether demanded or not) or if you should become notour bankrupt or be sequestrated or a poinding of any of your effects should be carried out or if you should sign a Trust Deed for [sic] behalf of your creditors then, and in any of these events, the Board shall be entitled forthwith to terminate this tenancy by notice in writing to you without prejudice to any claim the Board may have."
[5] It was agreed that the provisions in clause 13 regarding bankruptcy and the like constituted an irritancy and the sole question came to be whether these provisions could be regarded as an "obligation of the tenancy" within the meaning of the said Section 9(1)(c).
[6] Counsel for the defender and respondent argued strongly that, insofar as these provisions were distinct from the pactional provisions of the tenancy agreement, and bearing in mind, further, that an irritancy of this nature was incurred by the happening of an event rather than by any breach of a contractual or other obligation, the answer to that question was clearly in the negative. Moreover, if an irritancy of this nature were unexceptionable, the only remaining "evil" at which the clause could strike was a provision for a "break" in the lease and for that purpose Parliament would surely have spelt out its intention in quite different and clear language.
[7] Left to ourselves, we would have had little...
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