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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clyne v. sharpe's trustees [1913] ScotLR 688 (23 May 1913)
URL: http://www.bailii.org/scot/cases/ScotCS/1913/50SLR0688.html
Cite as: [1913] ScotLR 688, [1913] SLR 688
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SCOTTISH_SLR_Court_of_Session
Page: 688↓
Court of Session Inner House First Division.
[Scottish Land Court.
v.
Facts:
A statutory small tenant whose lease had expired at Whitsunday 1912, but who had remained in possession of his holding, applied on 16th August 1912 to the Land Court to grant a renewal of his tenancy and to fix a fair rent. The Land Court having renewed the tenancy as from Whitsunday 1912, the proprietors appealed, maintaining that as the respondent's lease had expired at Whitsunday 1912 it was incompetent for the Land Court to renew the tenancy as from that date.
Held that the respondent was entitled to a renewal of his tenancy as from Whitsunday 1912.
The Small Landholders (Scotland) Act 1911, sec. 32, enacts—With respect to statutory small tenants the following provisions shall have effect:—“… (4) Except in any case where the landlord satisfies the Land Court
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that there is reasonable ground of objection to a statutory small tenant (hereinafter in this section referred to as the tenant), and the Land Court find accordingly, the tenant for the time being shall, notwithstanding any agreement to the contrary, be entitled on any determination of the tenancy to a renewal thereof on the terms and conditions hereinafter specified.” This was a Special Case stated by the Scottish Land Court under the Small Landholders (Scotland) Acts, 1886 to 1911, for the opinion of the First Division of the Court of Session in an application at the instance of Angus S. Clyne, farmer, Torraviach, Caithness, against the Reverend Charles C. Cowie.U.F. C. Manse, Rothes, and others, trustees of the late Adam Sharp, Esquire, of Clyth, in the county of Caithness, and as such proprietors of that estate.
The Case stated“—(1) Under the Small Landholders (Scotland) Acts, 1886 to 1911, the respondent, the said Angus S. Clyne, applied as a statutory small tenant to the Scottish Land Court for an order fixing a first equitable rent to be paid by him for the holding possessed by him at Torraviach aforesaid, of which the appellants are the proprietors.
(2) The respondent became tenant of the said holding at the term of Whitsunday 1907, at a rent of £25 per annum, under a missive of lease for five years. The said lease expired through the running out of the said stipulated term of endurance at Whitsunday 1912. No notice of removal had been given by either party to the other in terms of the Agricultural Holdings Act 1908. The respondent continued after Whitsunday 1912 and continues in possession of the holding. Nothing was done by either party in reference to the terms and conditions of the tenancy beginning at Whitsunday 1912 until the application referred to in next paragraph was presented.
(3) The respondent's application to the Land Court was presented on 16th August 1912.
(4) The application was duly served on the said trustees, and was heard by the Land Court at Wick on 30th September 1912. No objection was taken to the competency of this application. Proof was led and the holding inspected by members of the Court. Applicant asked renewal for one year; the proprietors asked that the term should be fixed at seven years. By consent of parties the period was fixed at seven years, subject to a break at the end of three years. Neither party maintained at the hearing of this application that the period and rent should run from Whitsunday 1913, or from any term other than Whitsunday 1912….
(5) On 13th December 1912 the appellants received intimation from the Sheriff-Clerk at Wick that the following final order had been pronounced in the application by the Land Court—‘The Land Court…find that the applicant is a statutory small tenant in and of the holding described in the application, and that no ground of objection to the applicant as tenant had been stated: Therefore find that he is entitled to a renewal of his tenancy of the said holding, and to have an equitable rent fixed; and having considered all the circumstances of the case, holding, and district, fix and determine the period of renewal at seven years from the term of Whitsunday 1912, but providing by consent of parties that at the expiry of three years from Whitsunday 1912 the tenant shall be entitled to terminate his tenancy, and the landlord shall be entitled to object to the continuance of the tenancy for the remainder of the said period of seven years in the same manner as if the said period had been three years from the said term of Whitsunday; and fix and determine the equitable annual rent payable by the applicant at £20 sterling, to run from the term of Whitsunday 1912.…’
(6) The appellants object to the final order of the Land Court (1) in so far as it fixes and determines the period of renewal of the respondent's tenancy of the holding as from the term of Whitsunday 1912, and (2) in so far as it reduces the rent of the holding as from the same term, and maintain that under the provisions of section 32 (4), (5), (6), and (7) of the Small Landholders (Scotland) Act 1911 it was ultra vires of the Land Court to fix an equitable rent for, or the period of the respondent's tenancy of, the holding for the current year to Whitsunday 1913, in respect (a) that the respondent's existing tenancy has not‘determined, and (b) that the respondent failed to give notice requisite to terminate his tenancy at Whitsunday 1912 in terms of the Agricultural Holdings (Scotland) Act 1908. The appellants do not maintain that the term of removal must have arrived before the application is dealt with by the Land Court.
“(7) The respondent maintains (1) that in virtue of the definition of the expression ‘termination of the lease' contained in section 31 of the Act of 1911 and of section 2 (1) (iii) the tenancy under the said lease terminated at Whitsunday 1912, and the Act of 1911 then applied to the holding, and that his renewed tenancy is from Whitsunday 1912, a tenancy to which subsections (4), (5), (6), (7), and (9) of section 32 apply; and (2) that neither the notice of removal prescribed by section 18 of the Agricultural Holdings Act 1908 nor any other notice is required to bring the Act of 1911 into operation.”
The questions of law were—“(1) Whether, on the facts as stated, and having regard to the provisions of the Small Landholders (Scotland) Act 1911, the Land Court were entitled to fix the renewal of the respondent's tenancy of said holding and the equitable rent to be paid by him therefor, as from Whitsunday 1912? (2) Whether it is competent for the Land Court to entertain any application by the respondent for fixing an equitable rent and determining the period of renewal of the tenancy until he has given the notice of removal required to terminate an existing tenancy under the Agricultural Holdings (Scotland) Act 1908, section 18?”
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Argued for appellants— (Question 1)—Esto that the applicant was a statutory small tenant in the sense of section 32 of the Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), and that he was entitled under section 32 (4) to apply for a renewal of his tenancy, the Land Court were in error in making that renewal from Whitsunday 1912, for the lease had expired. The tenancy, to a renewal of which he was entitled, was that current at the date of the application, viz., the yearly tenancy by tacit relocation, under which he was then sitting. At the date of the application this tenant was possessing not on the lease but on the legal tack constituted by tacit relocation. [As to the nature of such a tack, reference was made to Ersk Inst., ii, 6, 35, and 44.] The words “determination of the tenancy” meant the existing tenancy, i.e., the tenancy constituted by tacit relocation. That being so, it was ultra vires of the Land Court to date the renewal of the tenancy from Whitsunday 1912. (Question 2)—The applicant was bound to give notice of his intention to terminate the tenancy or to ask reconsideration of its terms—Agricultural Holdings Act 1908 (8 Edw. VII, cap. 64), sec. 18. Not having done so, he was barred from making the present claim. Argued for respondent— (Question 1)—Esto that at Whitsunday 1912 there had been a termination of the lease in the sense of section 31 (1) of the Act, there had also been a determination of the tenancy in the sense of section 32 (4), and the applicant therefore was entitled to a renewal as from that date, and, if he so desired it, on the same terms—section 32 (9). The fact that there had been tacit relocation was immaterial, for the effect of the Act was to supersede tacit relocation in holdings to which it applied. On its commencement the respondent became a statutory small tenant and entitled to apply for a renewal of his tenancy—section 32 (4). (Question 2)—No notice was prescribed by the Act and none therefore was necessary.
At advising—
The point of law upon which our judgment is asked is whether that order was intra vires of the Land Court in respect that it made a new tenancy, or renewal of tenancy, run from Whitsunday 1912. The contention of the proprietors before your Lordships was that that was impossible, because the moment that the term of Whitsunday 1912 arrived—no notice having been given—anew tenancy was ipso facto constituted for one year by tacit relocation, and that although the Land Court had a power to ordain a renewal of a tenancy where a person was a statutory small tenant—which they did not deny that this man was—yet they could only arrange for a renewal of the existing tenancy. Now the existing tenancy, according to the argument, was a tenancy that began at Whitsunday 1912 and only expired at Whitsunday 1913; and therefore the landlords argued that this judgment of the Land Court was ultra vires, inasmuch as instead of dealing with a tenancy as from Whitsunday 1913, it dealt with it as from Whitsunday 1912.
The matter depends entirely upon the provisions of the Small Landholders (Scotland) Act, and this is the first time we have had an opportunity of considering its provisions. The scheme of the Act, or rather the way in which the provisions of the Act are arranged, is somewhat peculiar. The Act begins by reading in the expression “landholder” into the Crofters Acts, and then it goes on in section 2 to define what a landholder is. It first of all says that the word “holding” means and includes every holding which is held by a crofter. That we have nothing to do with in this case. Then it goes on to say that the word also inoludes (subhead (ii) of section 2 (1)—“As from the commencement of this Act, and subject as hereinafter provided, every holding which at the commencement of this Act is held by a tenant from year to year who resides on or within two miles from the holding, and by himself or his family cultivates the holding with or without hired labour (hereinafter referred to as an existing yearly tenant).” I pause to note that if the matter stopped there and we had nothing more, that would bring every
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Now I shall apply the definitions of the statute to the facts here before I go further, for the sake of simplicity. That matter seems to be very clear. Mr Clyne was a person who on 1st April 1912 held land under a lease for a term longer than one year. He resided upon the holding and cultivated it himself, and the holding was not worth more than £50 a-year. Accordingly he quite clearly fell within the definition of sub-head (iii) of section 2 (1), that is to say, he was a qualified leaseholder. But then we are told that as a matter of fact Mr Clyne had not made his own improvements. Accordingly, under the provisions of clause ( b) of section 2 (1) (iii), although he is a qualified leaseholder, he cannot be held to be a qualified leaseholder, but he is a person to whom the provisions of the Act applying to statutory small tenants applied. Well, that of course, having defined the position of Mr Clyne, at once sends us to the portion of the Act which tells us what is the position of a statutory small tenant, namely, section 32. That section begins— “With respect to statutory small tenants the following provisions shall have effect.” The first subsection is practically a repetition of the definition which I have already extracted from the different provisions of section 2. Then, leaving out some sub-sections which I do not need to read, I come to subsection (4)—“Except in any case where the landlord satisfies the Land Court that there is reasonable ground of objection to a statutory small tenant (hereinafter in this section referred to as the tenant) and the Land Court find accordingly, the tenant for the time being shall, notwithstanding any agreement to the contrary, be entitled on any determination of the tenancy to renewal thereof on the terms and conditions hereinafter specified.” Then there is a provision that the terms and conditions of the renewed tenancy may be fixed, if the parties so choose, by agreement; and then it is provided, sub-section (7)—“Failing agreement, the landlord or the tenant may apply to the Land Court to fix an equitable rent, or to fix the period for which the tenancy is to be renewed, and the Land Court may thereafter determine the rent to be paid by the tenant, or the period of renewal, or both, as the case may be.” And then sub-section (9) provides—“Subject as aforesaid, the terms and conditions of the renewed tenancy shall (except so far as agreed to be varied) be those of the determining tenancy, in the same way and to the same effect, as nearly as may be, as if the tenancy had been continued for the full period of renewal under tacit relocation, and the tenant shall be entitled, if he so desires, to a renewal on these terms and conditions.”
Now I think that the effect of those provisions is not doubtful. We have, as have already pointed out, to look at the date of 1st April 1912 to find out whether Mr Clyne was within the Act or not. On considering the circumstances of his case, we find that at 1st April 1912 he was a qualified leaseholder who in the somewhat curious terms of the Act is not to be held to be a qualified leaseholder, and he was a person, therefore, to whom the provisions as to statutory small tenants applied. He could not get the benefit of his right of renewal until his lease expired, and accordingly he did not get what you may call a practical right under the Act until Whitsunday 1912; but as soon as the Whitsunday term arrived, it seems to me that he was, in terms of the Act, notwithstanding any agreement to the contrary, “entitled … to a renewal thereof on the terms and conditions hereinafter specified.” And the terms and conditions after specified were that, failing agreement between the parties—and no agreement here is alleged—all the conditions of the old lease were to remain as before, except only that the tenant had a right to ask the Land Court to fix for him the period of the renewal lease and the rent which he was to pay
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My view is that under the Act a person in this condition is entitled, as soon as his lease has expired, to this statutory right of renewal, and that that statutory right of renewal, so to speak, suspends the operation of what I may call common law tacit relocation, which, under these circumstances, would have taken place if the Act had not been passed. I say “suspends,” because I can imagine that, if no application at all was made to the Land Court, and if nothing else was said, and if the man simply went on year after year, it might be that he would be sitting under tacit relocation, he not having taken advantage of the provisions of the Act. And I think that that consideration gets rid of the difficulties which were suggested in argument as to what would have happened if the tenant had gone on for years and then come to the Land Court. I think that in that case it would have been found that he was too late. I think a person may disable himself from taking advantage of the provisions of the Act of Parliament by not being timeous. But here there was nothing of that sort. The fallacy, I think, of the argument for the landlords —which, upon the first statement of it, seemed convincing — lies in this, that it really presupposes that the right which the man gets to the renewed tenancy is a right which he gets from the Land Court on application. I do not think he does. I think he gets the right ipso facto under the statute, and that all that the Land Court does is to fix certain terms of the lease—very weighty ones certainly, namely, the ish and the rent; but, nevertheless, the lease itself-the renewed tenancy—depends upon the provisions of the statute and not upon the decision of the Land Court. That view really gets rid of the seeming difficulty which was put interrogatively in the argument, namely, on what title was this man sitting during, say, the month of June. “Tacit relocation,” said the landlord. But I think the answer is that he was not. He was sitting under a statutory renewal of which the terms had not yet been fixed.
That being my opinion, I think the Land Court decided rightly on this matter, and that we should answer the question put to us in the affirmative.
The difficulty which I have experienced is in reconciling the common law idea of tacit relocation with the particular provisions of this 32nd section. Because it has seemed to me that if the judgment of the Land Court is correct, there is an opening for a tenant sitting on until the term arrives and then saying—“After all, I do not want this renewed and I am going away,“ and so leaving the landlord at the term in the lurch without a tenant. Let me turn to the provisions of section 32 of the Act. In the first place, in sub-section (4) there is the expression “on any determination of the tenancy,” and that at once raises the question, why should the interpretation clause in section 31 use the expression “termination of the lease,' when one does not find “termination of the lease” used in section 32 (4), but a different term —“determination of the tenancy.” I think that that difficulty may be got rid of by this consideration, that the determination of the tenancy includes not only the termination of the lease, but also the determination of a tenancy precedent to a statutory extension of the lease under the provision of section 32. But then sub-section (5) raises a much greater difficulty in respect that it declares the provisions of this section to be subject to all the provisions of the Agricultural Holdings Acts 1908 and 1910. Amongst other things these Acts not only recognise tacit relocation but make special provision for statutory notices to take the place of the common law notices required to prevent tacit relocation, and it is somewhat difficult to see how these provisions can apply to a current lease or to a tenancy extended under the Act, and yet that the tenant should be entitled to delay until after the determination of the lease, when, ex hypothesi, tacit relocation must have taken place, without giving notice that he wants reconsideration of the terms of his tenancy. But I think that the difficulty is obviated by this consideration—I think tacit relocation has in a case such as the present really taken place, and that the tenant who has allowed the proper time of notice to pass without giving notice has become tenant for at least another year in terms of sub-section (5); but there is this expression in the beginning of subsection (5)—“Except so far as varied by this section.” And I think that tacit relocation, though it has occurred, is so far affected by this sub-section that it is tacit relocation of the holding on the terms and conditions of the lease, all except those two items which the tenant or landlord, as the case may be, may call on the Land Court to determine for them under sub-section 7, namely, the rent and the duration. And in that way the idea of tacit relocation may be reconciled with the provision of this section of the statute.
For these reasons I agree with your Lordship in thinking that the judgment of the Land Court is sound.
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In the present case I think it was not incompetent for the Land Court to do what they did.
The Court answered the first question of law in the affirmative, and found it unnecessary to answer the second question.
Counsel for Appellants— Murray, K.C.— Hon. W. Watson. Agents— J. & A. F. Adam, W.S.
Counsel for Respondents — Moncrieff, K.C.—T. G. Robertson. Agents— Gordon, Falconer, & Pairweather, W.S.