Scottish Court of Session Decisions

Henry Gates, publican, Kirkcaldy, pursuer, raised an action in the Sheriff Court at Kirkcaldy against Mrs Thirza Blair, eating-house keeper, 371 High Street Kirkcaldy, defender, in which the pursuer craved the Court to ordain the defender to remove from the shop at No. 371 High Street, Kirkcaldy, of which, together with a dwelling-house attached thereto, the pursuer was the proprietor.

The pursuer averred, inter alia—“(Cond. 1) The pursuer is proprietor of a property situated at the corner of Coldwell Wynd and High Street, Kirkcaldy. The property consists of two portions—one portion is a shop and the other portion is a dwelling-house. The property consists of a ground storey and two storeys above. The ground storey forms part of the shop No. 371 High Street. The rest of the shop forming No. 371 High Street consists of a room on the storey above the ground storey, which room is to the front. There is an internal stair leading from the ground storey of the shop to the room above. The ground storey and the said room above form one shop, which is No. 371 High Street, Kirkcaldy. The dwelling-house consists of the back part of the first storey and of the whole of the second storey. This dwelling-house enters from Coldwell Wynd and has a separate staircase. It is entirely self-contained and has no connection with the shop.… (Cond. 2) The defender is the tenant under the pursuer of the said house and the said shop at an inclusive rent of £45. The defender's tenancy is an annual one. It runs from Martinmas to Martinmas. The yearly value of the shop is more than one quarter of the yearly value of the house. (Cond. 3) On 22nd September 1922 the pursuer served a notice on the defender calling on her to remove from the said shop at Martinmas 1922. (Cond. 5) The shop and the house are physically separate and independent, although they have been let for one inclusive rent. If the defender removes from the shop she will have undisturbed possession, as at the present time, of the dwelling-house and all its accessories. There is at present a door of communication on the ground storey between the staircase leading to the dwelling-house and the shop. This doorway has been formed simply to facilitate the defender, who is the occupier both of the shop and the dwelling-house, passing from the dwelling-house to the shop without going into the street. This door will be shut up.…

The defender averred, inter alia—“( Ans. 5) Admitted that at present there is a door on the ground storey and a passage leading to the house. Quoad ultra denied. Explained and averred that there is a covered passage leading from Coldwell Wynd to the house with a door at the mouth of the passage which is locked at night. This passage leads only to the shop and the house and is 11 feet long. The door leading from said passage to the back kitchen of the shop is only 6 feet 6 inches from the mouth of the passage. The stair to the house is just at the mouth of said passage. Said shop and house form a single three-storey tenement, and the whole tenement is included in the let to the defender. There is a door from the back kitchen of the shop into the passage, and the defender can get from the shop to the house without having to go to the street. This doorway had been formed before the defender went into the premises about nineteen years ago.…”

The pursuer pleaded—“1. The defender's statements are irrelevant. 2. The shop and the dwelling-house being physically separate and independent, the pursuer is entitled to have the defender removed from the shop at Martinmas.”

The defender pleaded—“1. The action is irrelevant and insufficient to support the conclusions of the writ and should be dismissed, and the defender found entitled to expenses. 2. The shop and house having been let as one, the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 applies, and the pursuer is not entitled to put the defender out of any part of the subjects let so long as said Act or any extension thereof remains in force.”

On 6th November 1922 the Sheriff-Substitute ( Stuart) pronounced an interlocutor in which he repelled the first plea-in-law for the pursuer, sustained the pleas-in-law for the defender, and dismissed the action.

Note.—“The subjects let to the defender consist of a self-contained building of three floors, viz., ground floor and two upper floors. The ground floor and part of the first floor are shop premises. The rest of the first floor and the whole of the second floor form the dwelling-house. The whole subjects are let as one at a rent of £45. The pursuer seeks to regain possession of the shop and has served notice on the defender to remove therefrom. He does not desire the defender to vacate the house. The question is whether lie is entitled to the order craved. The defender maintains that she is entitled to the protection of the statute in respect that the whole subjects fall to be regarded as a house let as a separate dwelling, and further that it is not competent to warn a tenant out of part of the subjects let. The answer is that the premises are separable and can be separated (although at present they are used as one) by merely closing a door which gives access from the shop to the house. This is not disputed, and in point of fact the house has a separate entrance from the lane at the side of the building. The arrangement of the premises is clearly shown on the plan produced. I have reached the conclusion that as the Act has been interpreted the whole subjects fall within the definition of a ‘house or part of a house let as a separate dwelling (section 12(2)).’ It was so held in the Epsom Grand Stand case ( (1919) W.N. 170), where premises let as a public-house, but of which about seven rooms were used as a private

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residence, were held to be a dwelling-house within the meaning of the statute; and in Callaghan v. Bristowe ( (1920) W.N. 308) a similar result was reached in the case of a motor garage with living rooms on the upper floor. It was thus decided that premises which served a purpose besides that of a dwelling-house were still to be regarded as a dwelling-house and within the protection of the Act. These cases were decided on the terms of the Act of 1915, which are repeated in the present statute. But the Act of 1920 contains this further declaration, viz.—That its application ‘shall not be excluded by reason only that part of the premises is used as a shop or office, or for business, trade, or professional purposes.’ What was previously matter of judicial interpretation is now enacted by statute. It seems to me that the premises here in question fall directly within the provision quoted and that the whole must be regarded as a dwelling-house within the meaning of the Act. It was said for the pursuer that the circumstances here were distinguishable from those to which the Act had been held applicable, in respect that the defender's house and shop are separate or at least easily separable. The reports do not show whether this argument would have been available in the cases above referred to, as no sufficient details are given. But it would seem to be in any view an unsubstantial ground of distinction. The broad fact is that the premises whether physically separable or not were let as unum quid. The case I think is just such a case as is provided for in the sub-section above quoted, which impresses the character of dwelling-house upon the whole subject of the let. If this view be sound the pursuer's case fails on relevancy, for he does not aver that the premises are required for his own occupation. All he says is that he desires possession of the shop. On the question of competency I have little doubt that—whether under or apart from the statute—a landlord is not entitled to warn a tenant to remove from a part of the subjects let. No authority was cited for such a proceeding, and it would seem on principle to be indefensible. There is, moreover, authority in England for holding that a partial notice is incompetent— Bebington v. Wildman, 28th January 1921, 37 T.L.R. 409. I am of opinion therefore’ that the application must be dismissed.”

The pursuer appealed to the Sheriff ( Fleming, K.C.), who on 11th December 1922 refused the appeal.

Note.—“I agree with the Sheriff-Substitute in holding (1) that the whole subjects let are to be regarded as a house let as a separate dwelling, and (2) that it is incompetent to warn a tenant out of part only of the tenancy. I need add nothing to what he has said.…”

[The Sheriff then dealt with a point under the statute with which this report is not concerned.]

The pursuer appealed, and argued—Due notice of removal prevented the operation of tacit relocation—Bell's Prins., sec. 1265. Provided that the landlord made his intention to alter materially the terms of the lease sufficiently clear to the tenant, to whom the choice of going or staying was given, it was not an absolute necessity that the notice given should be a formal notice of removal— M'Farlane v. Mitchell, 1900, 2 F. 901, 37 S.L.R. 705. An informal notice by a tenant had also been considered sufficient to interrupt the process of tacit relocation— Gilchrist v. Westren, 1890, 17 R. 363, 27 S.L.R. 273. The landlord had here in most explicit terms renounced the lease to the tenant, in which case there was no possible room for the operation of tacit relocation.

Argued for the defender—Any notice terminating a contract should refer to the exact subject of the contract. The notice in the present case, being a notice to remove from a portion of a building let as a whole, failed to fulfil that requirement, and was accordingly really no notice at all. That being so, there was no interruption of tacit relocation and the pursuer's action ought to be dismissed.