Scottish Court of Session Decisions

Stevenson v. Roy & Anor [2002] ScotCS 59 (5th March, 2002)

OUTER HOUSE, COURT OF SESSION
A1617/01	OPINION OF LORD DRUMMOND YOUNG in the cause JANE ELIZABETH STEVENSON, Pursuer; against THOMAS ROY and OLWYN ELIZABETH ROY, Defenders:   ________________

 

 

Pursuer: Party

Defenders: Macnair; Brodies, W.S.

 

5 March 2002

1. The pursuer has raised an action in which she concludes for declarator that she is entitled to occupy the dwelling house known as Nylow (formerly Rubislaw), King O' Muirs Road, Glenochil, Tullibody, Clackmannanshire, and for a consequential order ordaining the defenders to permit her to enter and occupy that house. The defenders are the present owners and occupiers of that house, which they acquired from the pursuer's husband by disposition dated 20 January 1995 and registered in the Land Register on 3 February 1995. The pursuer's averments in support of those conclusions, so far as material to the present procedure roll discussion, are as follows. The pursuer is married to Hugh Stevenson. Between 1977 and 1993 she lived in the property then known as Nylow, in Tullibody, with Mr Stevenson. That property is, she avers, the matrimonial home of herself and Mr Stevenson, and she claims that she is entitled to occupy the property as a non-entitled spouse, in terms of section 1(1) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. She has not exercised that right since 1993, when she was forcibly ejected from the house by Mr Stevenson while he was under the influence of alcohol. She had contributed funds towards the purchase of the property. On 22 December 1994, following the institution of divorce proceedings, Mr Stevenson's solicitor wrote to the pursuer's then solicitor to advise that Mr Stevenson had decided to sell the property, and to ask for the pursuer's consent to the sale under the 1981 Act as the property was the matrimonial home. The pursuer withheld her consent to the sale.
2. On 20 January 1995 the pursuer's solicitor advised her by telephone that the defenders had moved into the property. The pursuer asked how this was possible without her consent, and her solicitor replied that they must have leased the property. The pursuer thereafter visited the property, and was told by the first defender that he was "keeping an eye on the place" for Mr Stevenson. On 23 January 1995 Mr Stevenson's solicitor again wrote to the pursuer's solicitor to ask for her consent to the sale of the property. Once again the pursuer refused her consent. In October 1995, however, the pursuer's solicitor obtained a search report and copy disposition which indicated that Mr Stevenson had disponed the property to the defenders on 20 January 1995, the defenders' title having been registered on 3 February 1995. It was further discovered that an affidavit had been sworn by Mr Stevenson declaring that there was no non-entitled spouse with occupancy rights in the property; it appears that that affidavit was exhibited to the defenders' solicitors at the time of the sale.
3. The pursuer applied for legal aid in order to raise an action for declarator and enforcement of her occupancy rights in the latter part of 1996. Her application was refused at that time. In June 1997 she delivered a letter to the defenders to advise them that she was to take up her occupancy rights in the property and would enter at noon on 7 June 1997. The following day the defenders obtained an interim interdict against the pursuer to prevent her from occupying the property. Subsequently the pursuer obtained legal aid to raise the present action, which was initiated in September 1998. The pursuer makes extensive averments about other litigation that has taken place in relation to the house in Alloa Sheriff Court, but I do not consider that litigation material to the present issue.
4. The pursuer founds on the right conferred by section 1(1)(b) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, taken together with the provisions of section 6(1) of the Act. Section 1(1) is in the following terms:

"Where, apart from the provisions of this Act, one spouse is entitled... to occupy a matrimonial home (an 'entitled spouse') and the other spouse is not so entitled or permitted (a 'non-entitled spouse'), the non-entitled spouse shall, subject to the provisions of this Act, have the following rights --

...

(b) if not in occupation, a right to enter into and occupy the matrimonial home".

5. Section 6(1) is in the following terms:

"Subject to subsection (3) below --

(a) the continued exercise of the rights conferred on a non-entitled spouse by the provisions of this Act in respect the matrimonial home shall not be prejudiced by reason only of any dealing of the entitled spouse relating to that home; and

(b) a third party shall not by reason only of such a dealing be entitled to occupy that matrimonial home or any part of it".

6. The defenders have tabled a general plea to the relevancy of the pursuer's averments in the present action, and a further plea in the following terms:

"The pursuer's spouse having permanently ceased to be entitled to occupy the subjects, and the pursuer thereafter not having occupied the subjects for a continuous period of five years, the defenders should be assoilzied".

7. The latter plea is intended to introduce the defence accorded by section 6(3)(f) of 1981 Act; section 6(3) (as inserted by section 13(6)(c) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985) provides as follows:

"This section shall not apply in any case where --

...

(f) the entitled spouse has permanently ceased to be entitled to occupy the matrimonial home, and at any time thereafter a continuous period of 5 years has elapsed during which the non-entitled spouse has not occupied the matrimonial home".

8. For the defenders, it was submitted that, on the pursuer's averments, section 6(3)(f) was directly applicable to the present case. The entitled spouse, Mr Stevenson, had permanently ceased to be entitled to occupy the house when he sold it to the defenders in January 1995. Thereafter, there had been no occupation by the non-entitled spouse, the pursuer, for a period of five years. Counsel submitted that the raising of an action during the period of five years after the sale of the property was not sufficient to interrupt the time-bar in paragraph (f). The paragraph referred to occupation, and it was clear that what was intended was actual occupation rather than a notional right to occupy. The terms of paragraph (f) should be contrasted with other provisions where the raising of proceedings was expressly declared to interrupt a time-bar; the obvious example was section 6 of the Prescription and Limitation (Scotland) Act 1973.
9. The pursuer submitted that section 6(3)(f) of the 1981 Act did not apply where a non-entitled spouse with subsisting occupancy rights interrupted the five-year period referred to in that paragraph by raising a claim to assert those rights. In the present case, the pursuer had attempted to re-occupy the matrimonial home and had been prevented from doing so by the interim interdict obtained by the defenders in June 1997. She had then raised the present action in September 1998. That was within the five-year period referred to in section 6(3)(f), which began in January 1995. Consequently the raising of the present action was sufficient to interrupt the five-year period.
10. It is not in dispute that the pursuer has not occupied the former matrimonial home since 1993; she avers "I am entitled to occupy the said property as a 'non-entitled spouse'. I have not exercised that right since 1993 when I was forcibly evicted from the matrimonial home". Nor is it in dispute that the property in question was sold by Mr Stevenson, the entitled spouse, on 20 January 1995, or that the present proceedings for enforcement of the pursuer's right of occupancy under the Act were raised in September 1998, within five years of the sale of the property by Mr Stevenson.
11. The critical issue is accordingly whether the five-year period referred to in section 6(3)(f) of the 1981 Act, which began on 20 January 1995, was interrupted by the raising of the present action, which was designed to assert the occupancy rights of the pursuer as non-entitled spouse. If the five-year period was not interrupted in that way, it is quite clear that it has now expired, with the result that the defence in section 6(3)(f) is available to the defenders.
12. In my opinion the period of five years referred to in section 6(3)(f) is not interrupted by the raising of proceedings to assert the non-entitled spouse's occupancy rights. Three main reasons exist for this conclusion. First, the terms of section 6(3)(f) are quite clear: section 6 does not apply in any case where the entitled spouse has permanently ceased to the entitled to occupy the matrimonial home, "and at any time thereafter a continuous period of 5 years has elapsed during which the non-entitled spouse has not occupied the matrimonial home". The words quoted refer to the fact of occupation, not the right to occupy. Thus what is in issue is whether occupation has occurred. Raising an action to assert the right to occupy has no bearing on that matter; the right to occupy is not the same as the fact of occupation.
13. Second, had it been intended that the period referred to in section 6(3)(f) should be interrupted by the raising an action asserting the right to occupy, different wording would have been expected. For example, the paragraph might have referred to a period of five years "during which the non-entitled spouse has not occupied or in legal proceedings claimed the right to occupy the matrimonial home". Alternatively, if some sort of prescription of the rights of the non-entitled spouse had been intended, the paragraph might have been modelled on section 6(1) of the Prescription and Limitation (Scotland) Act 1973; this provides as follows:

"If... an obligation to which this section applies has subsisted for a continuous period of five years --

(a) without any relevant claim having been made in relation to the obligation, and

(b) without the subsistence of the obligation having been relevantly acknowledged,

that as from the expiration of that period the obligation shall be extinguished".

14. "Relevant claim" is defined in section 9 as a claim made in court or arbitration proceedings or a claim in a bankruptcy or corporate insolvency. The absence of any reference to the interruption of the five-year period by the raising of proceedings is in my opinion highly significant; without such a reference, all that paragraph (f) refers to is the fact of occupation.
15. Third, it is significant that the 1981 Act creates a right to occupy a matrimonial home, rather than a right of shared ownership in the matrimonial home or a right to a share of the proceeds of sale of the matrimonial home. In other words, the Act is concerned to ensure that a non-entitled spouse has a home available, rather than to confer any wider rights. If a non-entitled spouse has not occupied a matrimonial home for as long as five years, it is obvious that she must have had some other home available to her. Failure to occupy for five years cannot possibly be characterised as a temporary absence, and some other accommodation must have been available, on a reasonably permanent basis, during such a period. If the non-entitled spouse has found another home, however, it would be wholly unreasonable to entitle her to evict the purchasers of the former matrimonial home. If there is any genuine need for the non-entitled spouse to occupy the former matrimonial home, that is obviously a matter of urgency, and five years is quite long enough to allow such a spouse to enforce her right to occupation and to take actual occupation. If she has not done so by the end of the five-year period, there is nothing unreasonable in the conclusion that her rights under section 1 and 6(1) are at an end.
16. Apart from the raising of the present proceedings, the pursuer founded on her attempts to re-occupy the matrimonial home without recourse to court proceedings. If the raising of court proceedings is not enough to interrupt the five-year period in section 6(3)(f), it is clear that unsuccessful attempts to effect physical reoccupation will not suffice either.
17. For the foregoing reasons I hold that section 6(3)(f) is applicable to the present case, it is accepted that pursuer has not occupied the former matrimonial home since her husband sold it in January 1995. The result is that the pursuer has no right under sections 1(1) and 6(1) of the 1981 Act to occupy the former matrimonial home. I will accordingly sustain the defenders' first and second pleas in law and dismiss the action. Although the defenders' second plea in law refers to absolvitor, my decision follows a discussion on the procedure roll, and in those circumstances I consider that dismissal is the appropriate disposal of the action.