Scottish Court of Session Decisions

Crawford Logan, Gribton, Holywood, Dumfrieshire, pursuer, brought an action of removing in the Sheriff Court at Dumfries against William Fair, mason, Upper Cluden, Holywood, Dumfriesshire.

From the averments of the pursuer it appeared that he was tenant of the mansion-house and parks of Gribton, and as such had since January 1918 been tenant under certain trustees of a cottage known as Upper Cluden. When pursuer became tenant of the cottage his intention was to give the occupation to his grieve, but as that could not be arranged at the time he allowed the defender to become his subtenant for twelve months. The defender being still in occupation in 1920 and having informed the pursuer that he did not intend to cede occupation until he could obtain alternative accommodation, the pursuer, who required the cottage for his grieve, gave the defender formal notice to remove at Whitsunday 1921.

The defender pleaded, inter alia—“1. The pursuer's averments are irrelevant. 2. The pursuer not being the landlord of the cottage has no title to sue this action.”

On 27th August 1921 the Sheriff-Substitute ( Campion) pronounced an interlocutor in which he, inter alia, repelled the first and second pleas-in-law for defender.

Note.—“Despite an interesting argument to the contrary I incline to hold that the two first pleas-in-law stated for the defender fall to be repelled. The question to be answered is really whether the expression ‘landlord’ can for the purposes of this Act be held to include any person not the actual proprietor of the subjects let. For the purposes of this Act—except where the context otherwise requires—sub-section ( f) of section 12 says—‘The expressions “landlord,” “tenant,” “mortgagee,” and “mortgagor” include any person from time to time deriving title under the original landlord, tenant, mortgagee or mortgagor.’ Now whether the Act has said it in so many words, I am of opinion that for the purposes of this Act the expression ‘landlord’ must be held to include one in the position of the pursuer in this action, the only person with whom the defender has any contract. To hold otherwise seems to me to leave a tenant who has sub-let without remedy and the restrictions on right to possession according to section 5 of no avail to him. It may be matter of indifference to the actual proprietor whether a sub-tenant goes or stays, and he may thus well decline to intervene with the risk of being found liable in expenses.”

The defender having obtained leave appealed to the Sheriff.

On 14th October 1921 the Sheriff ( Morton) sustained the appeal, recalled the interlocutor appealed against, and sustained the second plea-in-law for the defender, and dismissed the action.

Note.—[ After a narrative of the facts]—“In the debate before me the argument turned entirely on the right of the pursuer to bring the present action of removing. The pursuer argued that in terms of section 5 (1) ( d) of that Act he was entitled to have the defender removed from the house, and the defender replied that the pursuer had no title under the Act to pursue an action of removing. In my opinion the defender's contention falls to be upheld.

“It was admitted by the pursuer that

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only a landlord could take advantage of the provisions of section 5 (1) ( d) of that Act, but his contention was that he fell within the definition of landlord under section 12 (1) ( g) of the Act. In that section the following is the definition of landlord—‘The expression “landlord” also includes in relation to any dwelling-house any person other than the tenant who is, or would be but for this Act, entitled to the possession of the dwelling-house.’ This is the definition of landlord except where the context otherwise requires. Now I think, having regard to the notice to remove served by the pursuer upon the defender, the pursuer is a person who but for the Act would be entitled to possession of the dwelling-house. As that person must, however, be also a person other than the tenant, I am quite unable to see how he being the tenant could ever say that he falls within the definition of landlord in that section.

“Nor can I see that the context requires that in construing section 5 (1) ( d) of the Act the word ‘landlord’ should there be held to include tenant. It is to be observed that the section comes in under the heading ‘Further restrictions and obligations on landlords and mortgagees,’ which does not appear a very apposite heading for a section conferring privileges upon tenants. Looking at the sub-section itself, it is to be remembered that the dwelling-house therein referredto may be an urban dwelling-house. If therefore the pursuer's argument is correct, the result would be that under one clause of the sub-section an urban tenant of a dwelling-house who had sublet it would be entitled to get an order for the removal of the sub-tenant if he could satisfy the Court that the dwelling-house was reasonably required by him for an employee of the sub-tenant. It is very difficult to figure a case where a dwelling-house could be reasonably required by one urban tenant for a person in the employment of another urban tenant, and that appears to me to be an argument against the construction suggested by the pursuer. I do not examine the sub-section further, for I confess that if anything is plain upon it, it is plain to me that the context requires that landlord should not be read so as to include tenant.”

The Sheriff having certified the cause as suitable for appeal to the Court of Session and granted leave to appeal, the pursuer appealed to the First Division.

Argued for the appellant—The Sheriff was wrong. The pursuer stood in his relation to defender as landlord to tenant within the meaning of section 5 (1) ( d) of the Act. The pursuer was a person deriving title under the original landlord (section 12 (1) ( f)), and was a person who would but for the Act be entitled to possession of the cottage (section 12 (1) ( g)). In the meaning of the Act “tenant” included “sub-tenant, and the words “other than the tenant” were to be interpreted accordingly.

Argued for the respondent—The Sheriff was right. The pursuer was not a landlord within the meaning of the section (5 (1) ( d)). He was excluded by the words “other than the tenant” (12 (1) ( g)). Further, there was no specific averment that the pursuer was entitled to possession but for the Act.