Scottish Court of Session Decisions

The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), section 4, enacts—“The following words and expressions in this Act shall have the meanings hereby assigned to them, unless there be something in the subject or context repugnant to such construction—that is to say,… (21) ‘Occupier’ shall mean tenant or sub-tenant, or any person in the actual occupancy; and shall not include a lodger or a person in the occupation as tenant of a furnished house let for a less period than one year, but shall include a person by whom such furnished house is so let.”

The House Letting and Rating (Scotland) Act 1911 (1 and 2 Geo. V, cap. 53) enacts—Section 1—“In this Act—The expression ‘small dwelling—house’ means a dwelling—house in a burgh or special district in which this Act is in operation, entered in the valuation roll at a yearly rent or value of ten pounds or under if the population of the burgh or special district is less than twenty thousand;… but shall not include any dwelling—house occupied by the owner thereof, or in which the owner resides, or any dwelling-house used as an inn or hotel, or any dwelling-house let along with land for agricultural, pastoral, or horticultural purposes, or any dwelling-house let in conjunction with a shop, workshop, stable, or byre; nor shall it include any dwelling-house let under any contract or lease current at the passing of this Act prior to the expiration of such contract or lease.… The expression ‘owner’ and ‘occupier’ have the meanings assigned to them respectively in the Burgh Police (Scotland) Act 1892.…” Section 7—“…(2) Subject as here in after provided, the owner of a small dwelling-house shall be responsible for all assessments liability to pay which is imposed on the occupier thereof, and the same shall not be recovered or recoverable by the assessing authority from the occupier, but shall be recovered by the assessing authority from such owner in the same manner as provided for under existing Acts with respect to the recovery of assessments from owners, and the assessing authority shall be entitled to recover occupiers' assessments from the owner for the year from Whitsunday to Whitsunday, notwithstanding that the house may not be occupied throughout the year, and for that purpose to issue to the owner through their collector or other officer appointed by them any notice, schedule, demand note, or intimation which, under existing Acts, may be issued in respect of the year's assessments to the occupier.…’ (6) Every assessing authority shall, in respect of the occupancy of small dwelling—houses, allow to owners from all occupiers' assessments levied on and recovered from them in place of the occupiers (less any repayments in pursuance of a claim under this section) a deduction to cover cost of collection on the following scale, that is to say—In the City of Glasgow, two pounds ten shillings per centum; and elsewhere such deduction, not exceeding two pounds ten shillings per centum, as may be fixed by the Sheriff on the application of the assessing authority, or any ten or more persons having an interest, after such intimation by advertisement or otherwise as he thinks fit, and after such inquiry, if any, as he may deem necessary.…”

The deduction to be allowed to owners in Lanarkshire in terms of sub-section (6) of section 7 of the said “House Letting and Rating (Scotland) Act” has been fixed by the Sheriff at two and a-half per cent.

Carron Company, incorporated by royal charter, Carron, Stirlingshire, first parties; Sidney Herbert Francis, 65 Renfield Street, Glasgow, Assessor under the Lands Valuation Acts for the Lower Ward of the County of Lanark, second party; and the County Council of the County of Lanark, third parties, brought a Special Case in the Court of Session.

The Case stated, inter alia—1. The first parties are lessees of certain minerals in the estate of Cawder (otherwise (ladder), in the parish of Cadder and county of Lanark, under a lease dated 8th and 11th April and 7th May 1892, whereby Archibald Stirling of Keir let to the said first parties, for a period of forty-five years from Martinmas 1890, with breaks in the tenants' option at Martinmas 1895 and every fifth year thereafter, the said minerals, and also the whole colliers' houses on the lands so let so far as belonging to the said Archibald Stirling.

2. The said houses consisted of, inter alia, houses then known as Nos. 1 to 12 Blackhill Row, Nos. 47 to 57 Shanghai Row, Nos. 90 to 99 Valley Row, and Wilderness Cottage—in all thirty-four houses. The said lease provided that the first parties should purchase the said houses at their entry at the price of £500. This was done by the first parties.

3. Since entry the said first parties have built over 200 houses on the ground included in the said lease in addition to the thirty-four houses above referred to.

4. On entering the employment of the first parties as a miner or otherwise at the first parties' works at Cadder, an employee [who takes a house from the first parties] is required to sign a document, a copy of which is printed in the appendix, and is held to form part of this Special Case. In terms of the said document, an employee of the first parties who is in the occupation or possession of any house or garden or both, of which the first parties are proprietors or lessees, agrees, inter alia, (1) ‘that he shall hold said house or garden or both only from week to week during the term he continues in said service or employment,

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counting from the first pay day after his entering the said service or employment’; (2) that the occupancy as aforesaid shall be terminable by either employer or employee upon one week's notice; (3) that upon the expiry of the period of the said notice, or in the option of the first parties, in the event of such employee contravening any of the rules and regulations posted up at the said works, or upon his ceasing to work at the said works or to be in the service or employment of the first parties, or being dismissed therefrom, he shall be held bound to remove from said house or garden or both, and to have authorised summary ejection at the first parties' instance therefrom; (4) that he shall be held liable to pay all damage that may be done to the said house during his occupancy thereof; (5) that he shall use his house only for the accommodation of his own family, and shall not take in thereto any lodger or lodgers without the special consent in writing of the first parties or their representatives at these works; (6) that in terms of the Truck Acts, 1831 to 1896, the first parties are entitled to deduct from the wages to be earned by him in their employment, inter alia, the amount of his house rent as weekly tenant if he occupies any house or garden or both as aforesaid.

5. This document is dated and signed by the employee, and his signature is attested by two witnesses. The house rent which is deducted by agreement from the employee's wages includes a sum representing occupier's rates, the whole rates for each house being paid by the first parties. The first parties do not make it a condition of employing any man that he shall occupy one of their houses, and if any employee who occupies one of these houses desires to vacate it he is free to do so without affecting his employment. The employment is not exercised at or in connection with the said houses, but at the first parties' collieries, which are some distance from the houses. The first parties have no control in virtue of the contract of employment over the said employees except during working hours and when actually employed. The first parties have no higher right than landlords in the ordinary case have to enter the said houses during the occupation thereof by their employees so long as the employees' right of occupation is not validly terminated in terms of the agreement.

6. The first parties were entered by the second party in the valuation roll for the county of Lanark for the year 1913–14 for the houses purchased and built by them, their names being entered in the columns of the said roll relative to ‘proprietors’ and ‘occupiers’; their employees who occupy, on the terms set out in paragraphs 4 and 5 hereof, houses or gardens or both, purchased or built by the first parties, were entered as ‘inhabitant-occupiers not rated.’ The ‘tenants’ column in the said roll was left blank. The terms of the entries in the said roll (the form of which is prescribed by the Registration Amendment (Scotland) Act 1885 (48 Vict. c. 16), and section 29 of the Local Government (Scotland) Act 1889 (52 and 53 Vict. c. 50), were, mutatis mutandis, uniform in all cases—an entry in the said roll which is typical of all the other entries relating to the said houses occupied as aforesaid is printed in the appendix, and is held to form part of this Special Case. The first parties have for several years claimed either that the ordinary occupiers' column should be left blank, or, alternatively, that their employees occupying said houses as aforesaid should be entered on the valuation roll as tenants and occupiers, but the second party has consistently declined to accede to these views, and has insisted on entering the first parties both as proprietors and occupiers, and their employees as inhabitant-occupiers. The first parties appealed against the said entries in the valuation roll for the year 1913–14 to the Lower Ward Valuation Committee of the County Council of Lanark, and claimed to have the roll rectified as above stated, but the said appeal was refused. Similar entries have been made in the valuation roll for the year 1914–15.…

In terms of section 11 of the House Letting and Rating (Scotland) Act 1911, the third parties duly adopted the said Act, and it then became applicable to, inter alia, the North Cadder Special Water District. All the said houses purchased or erected by the first parties, with the exception of Nos. 1 to 12 Blackhill Row, are situated within the said special district. The said special district contains a population of less than 20,000, and the rent of each of the houses within the said special water district is less than £10 a-year. The houses are all occupied by employees of the first parties, on the terms stated in the agreement referred to in paragraph 4 hereof, and are not let under any contract or lease current at the date when the said House Letting and Rating (Scotland) Act came into operation in the said district.…

In the demand-notes for occupiers' rates issued in respect of the said houses to the first parties by the third parties for the year 1913–14, no deduction was allowed to the first parties as owners of the said houses to cover the cost of the collection of occupiers' rates. The third parties on being requested by the first parties to make a deduction, declined to allow any deduction, contending that, as the first parties were entered in the said valuation roll as occupiers, each of the said houses must be held to be occupied by owners, and therefore none of the said houses is a small dwelling—house within the meaning of the House Letting and Rating (Scotland) Act. The first parties remitted to the third parties the amount of the occupiers' rates as levied, under deduction of a sum equal to 2 1 2 per cent. of the amounts so levied, which deduction they contend they are entitled to under the said House Letting and Rating (Scotland) Act 1911. The third parties acknowledged receipt of the amount so

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remitted, and treated this payment as a payment to account, intimating that a balance was still due by the first parties.…

“The first parties contend (1) that they should not be entered in the said valuation roll as occupiers in respect of the said houses; (2) that each of the said houses is a small dwelling-house within the meaning of section 1 of the said House Letting and Rating (Scotland) Act 1911; and (3) that they are accordingly entitled to make the said deduction of 2 1 2 per cent.

“The second party contends (1) that the occupiers of the houses are the Carron Company, who occupy the houses by means of their servants, the actual inhabitants of the houses. (2) That the inhabitants of the houses are the servants of the Carron Company, inhabiting the houses by virtue of their service or employment, and that as such they are correctly entered in the inhabitant-occupiers (not rated) column in the valuation roll.

“The third parties contend (1) that the employees of the first parties are inhabitant—occupiers within the definition of section 3 of the Representation of the People Act 1884, and are accordingly not liable to the

Description and Situation of Subject.
No.	Description	No.	Situation	Proprietor	Tenant	Occupier	Inhabitant Occupier—not rated (48 Vict., cap 3, secs. 3 and 9)	Annual Value of Dwelling House (Local Govt. (Scotland) Act 1889)	Feu. Duty or Ground Annual	yearly rent or value
70	House	100	Jellyhill Row	Carron Company, per J.C.Brodie & Sons, W.S., 5 Thistle Street Edinburgh	…	Proprietors	George Malcolm, roadman	£4 13	…	£4 13

third parties as the assessing authority for the occupiers' assessments in respect of the said houses. (2) That the first parties are occupiers of the said houses within the meaning of the Valuation Acts, and are liable to the third parties as the assessing authority for the occupier's assessments in respect of the said houses. (3) ( a) That the said dwelling-houses are not small dwelling-houses in the sense of section 1 of the House Letting and Rating(Scotland) Act 1911, in respect that the said houses are occupied by the first parties as owners within the meaning of said section or otherwise; ( b) in the event of its being held that the said employees are the occupiers of the said houses within the meaning of said Act, there is no liability imposed on said employees to pay occupier's assessments to these parties, and there is no responsibility therefore imposed on the first parties by section 7 (2) of said Act, and that accordingly the first parties are not entitled to the deduction of per cent. under section 7 (6) of said Act.”

The following excerpt from the valuation roll of Lanarkshire was printed as an appendix to the Case—

The questions of law were—“1. Are the first parties occupiers in respect of said houses within the meaning and for the purposes of the Valuation Acts? 2. Are the first parties' employees inhabitant-occupiers of said houses within the meaning and for the purposes of the Valuation Acts? 3. Are said houses small dwelling-houses in the sense of section 1 of the House Letting and Rating (Scotland) Act 1911? 4. On the assumption that the third question is answered in the affirmative, are the first parties as owners of said houses ( a) liable to the third parties as the assessing authority under section 7 (2) of the House Letting and Rating (Scotland) Act 1911, for the occupier's assessments in respect of said houses? ( b) entitled to the deduction of 2 1 2 per cent. in terms of section 7 (6) of said Act.”

Argued the first parties—The houses in question were not occupied in virtue of a contract of service in the sense of the Representation of the People Act 1884 (48 and 49 Vict. cap. 3), section 3. The contract of service and the contract of lease were entirely separate, the service being the occasion and not the cause of the lease, and their only connection was that the lease must terminate with the service. It was admitted that one might occupy in the person of another, but none of the cases in the books covered the facts here— Weatherhead v. Moffat, November 8, 1878, 6 R. 20; Lunan v. Allan, November 13, 1880, 8 R. 13, 18 S.L.R. 69; Whitelaw v. M'Gowan, December 22, 1905, 8 F. 332, 43 S.L.R. 346. The employees could be nothing else than tenants at common law, and it was intended to create a weekly tenancy. Alternatively, if they were not tenants they were householders, and therefore excluded the firm as occupier.

Argued for the second and third parties—The true question was whether the employees got their houses in virtue of their contract of service, which need not be contained in one document only. If the continuity of occupation depended on the continuity of service, then the employees had no title to the houses at all— Rose v. Grant, December 19, 1868, 7 Macph. 309, 6 S.L.R. 37; Forbes v. Webster, December 19, 1868, 7 Macph. 310, 6 S.L.R. 41; Dalgleish v. Andrews, December 19, 1868, 7 Macph. 310; Murray v. M'Gowan, October 20, 1869, 8 Macph. 4, 7 S.L.R. 78; Urquhart v. Adam, December 9, 1904, 7 F. 157, Lord Kinnear at 162, 42 S.L.R. 178. Through all these cases, though decided on previous Acts, the principle continued the same, namely, that a precarious possession without a title at all was not equivalent to tenancy.

At advising—