Scottish Court of Session Decisions

Stevenson v. Roy & Anor [2003] ScotCS 147 (21 May 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kirkwood Lord Hamilton Lady Cosgrove	A1617/01 OPINION OF THE COURT delivered by LORD HAMILTON in RECLAIMING MOTION in the cause JANE ELIZABETH STEVENSON Pursuer and Reclaimer; against THOMAS ROY and OLWYN ELIZABETH ROY Defenders and Respondents; _______

 

 

Act: Party (Pursuer and Reclaimer)

Alt: MacNair, Q.C.; Brodies (Defenders and Respondents)

21 May 2003

1. In 1975 the pursuer married Hugh Stevenson. From about 1977 until 1993 they lived together in a dwellinghouse built on a site at King O'Muirs Road, Glenochil. Although the pursuer had, so she told us, contributed funds to its construction, the title to the property was in the name of Mr. Stevenson alone. In 1993 Mr. Stevenson ejected the pursuer from the dwellinghouse. Thereafter she instituted proceedings for divorce from him. According to her averments in this action, she considered at that time applying as a non-entitled spouse for an exclusion order (under section 4 of the Matrimonial Homes (Family Protection)(Scotland) Act 1981) in respect of the dwellinghouse but received legal advice that it would be better to leave matters relating to the property to be resolved in the divorce proceedings.
2. In or about January 1995, before the divorce proceedings were resolved, Mr. Stevenson sold and disponed the dwellinghouse to the defenders in this action. On 3 February 1995 their interest as proprietors of the subjects was registered in the Land Register for Scotland. The relevant entry in the proprietorship section bears the note -

"There are in respect of the subjects in this title no subsisting occupancy rights, in terms of the Matrimonial Homes (Family Protection)(Scotland) Act 1981, of spouses of persons who were formerly entitled to the said subjects".

3. In this action the pursuer avers that, in the course of the transaction by which the defenders acquired the property from Mr. Stevenson, the latter swore a false affidavit to the effect that there was no non-entitled spouse with occupancy rights in the dwellinghouse. She also avers that the defenders were at the relevant time aware that Mr. Stevenson was married to her and that she had not consented to the sale of the property; and that they were accordingly not in good faith in accepting the affidavit sworn by Mr. Stevenson. The defenders deny any bad faith.
4. A diet of proof in the divorce action had been set for a date in February 1996. Although it appears that there were some discussions at or about that time between the parties to that action in respect of the pursuer's financial claims therein, no settlement or determination of these was made. The proof in the divorce action was, it seems, discharged and that action some months later abandoned by the pursuer. She and Mr. Stevenson remained and remain married to each other.
5. Early in June 1997 the pursuer, at her own hand, intimated to the defenders that she intended, in furtherance of her occupancy rights, to enter the dwellinghouse on the following Saturday. This proposed course of action was met by the defenders instituting proceedings against her in Alloa Sheriff Court. Interim interdict was granted prohibiting her from taking such action.
6. Some time thereafter the pursuer obtained advice from different solicitors. Ultimately, in October 1998, the present action was raised by her. In it she seeks declarator that she is entitled to occupy the dwellinghouse; she also seeks certain ancillary orders enforcing her claimed occupancy rights. Shortly after the raising of this action Mr. Stevenson made an application under section 7 of the 1981 Act to the sheriff at Alloa seeking an order dispensing with the present pursuer's consent to the sale to the present defenders. These defenders, who had been the proprietors and actual occupiers of the dwellinghouse since early in 1995, sisted themselves as minuters in those proceedings, likewise craving dispensation with the present pursuer's consent. On 10 November 1998, on the unopposed motion of the present defenders, this court sisted the present action pending disposal of the application in Alloa Sheriff Court.
7. As at January 2000 the Sheriff Court proceedings were still in dependence. Part of the delay in disposing of those proceedings may have been caused by the dependence of certain criminal proceedings against Mr. Stevenson's solicitor arising out of the transaction of sale. In the latter part of January 2000 there was due to occur the fifth anniversary of the date on which Mr. Stevenson had permanently ceased to be entitled to occupy the dwellinghouse. The pursuer, who had been ejected from it in 1993, had not at any time thereafter actually occupied it. On 6 January 2000 Lord Cameron of Lochbroom, sitting as a Lord Ordinary, heard in this action a motion by the pursuer to recall the sist and to grant certain interim orders designed to protect the pursuer's interests against the passing of a date which might be relevant for the purposes of section 6(3)(f) (referred to below) of the 1981 Act. The Lord Ordinary made no order in relation to the motion

"in respect that the present action is sisted in terms of section 7(4)(b) of the Matrimonial Homes (Family Protection)(Scotland) Act 1981 and that the application in the Sheriff Court has not yet been concluded".

8. In July 2000 the pursuer's solicitors withdrew from acting for her. They intimated that withdrawal to the defenders' solicitors and on 26 July 2000, on the defenders' unopposed motion, a Lord Ordinary pronounced an order recalling the sist and ordaining the pursuer to intimate whether or not she insisted in her action. She intimated that she intended to insist in it. She has continued to act and to appear on her own behalf since then. Although the sist was not, it seems, formally re-imposed, no further orders were made in the process until an interlocutor of 6 July 2001 by which the defenders were ordained to lodge defences. By that time the Sheriff Court proceedings under section 7 had come to an end. A proof in those proceedings had been fixed for 6 and 7 June 2001 but on the first day the application was dismissed on the motion of the applicant (Mr. Stevenson) and the minuters (the present defenders). The respondent (the present pursuer) was found entitled to her expenses in that process from 6 January 2000.
9. The defenders in the present action have tabled pleas in law which include the following:

"1. The pursuer's averments being irrelevant et separatim lacking in specification the action should be dismissed.

2. 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".

On 9 January 2002 the case was sent to procedure roll on these pleas. Argument was heard by the Lord Ordinary from counsel for the defenders and from the pursuer personally on 1 February 2002 when his Lordship made avizandum. On 5 March 2002 the Lord Ordinary sustained these pleas and dismissed the action. Against that interlocutor the pursuer has reclaimed.

10. The Matrimonial Homes (Family Protection)(Scotland) Act 1981 makes provision for, among other matters, rights of occupancy of spouses in a matrimonial home. A situation the statute addresses is where one spouse is entitled to occupy a matrimonial home (an "entitled spouse") and the other is not so entitled (a "non-entitled spouse"). In such circumstances the non-entitled spouse has, subject to the provisions of the Act, the following rights:

"(a) if in occupation, a right to continue to occupy the matrimonial home;

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

home" (section 1(1)).

Section 3 makes provision for regulation by the court of rights of occupancy of a matrimonial home, including provision for the court declaring, on the application to it by either spouse, the occupancy rights of the applicant spouse and enforcing such rights. Section 6(1) provides:

"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 of a 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".

Section 6(3) provides:

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

As originally enacted, five situations were then identified in any of which the disapplication had effect. The last of these (lettered (e)) is, as subsequently amended by the Law Reform (Miscellaneous Provisions)(Scotland) Act 1985 and the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990, in the following terms:

"the dealing comprises a sale to a third party who has acted in good faith, if there is produced to the third party by the seller -

(i) an affidavit sworn or affirmed by the seller declaring that the subjects

of sale are not or were not at the time of the dealing a matrimonial home in relation to which a spouse of the seller has or had occupancy rights; or

(ii) a renunciation of occupancy rights or consent to the dealing which

bears to have been properly made or given by the non-entitled spouse".

11. As originally enacted, the 1981 Act made no provision for the prescription, limitation or other cutting-off of occupancy rights. However, by section 13(6)(c) of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1985, there was added to the list of situations in section 6(3) of the 1981 Act the following:

"(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".

12. Section 7 makes provision for the court, on the application of an entitled spouse or any other person having an interest, to make in certain situations (including where consent by the non-entitled spouse to a dealing is claimed to have been unreasonably withheld), an order dispensing with the consent of the non-entitled spouse to that dealing. Section 7(4) provides that, where any such application is made and an action is or has been raised by a non-entitled spouse to enforce occupancy rights, "the action shall be sisted until the conclusion of the proceedings on the application". Thus a court before which such an action for enforcement of occupancy rights is brought cannot proceed with it until the application for dispensation with consent is concluded.
13. As the Lord Ordinary noted, it was not in dispute that the pursuer had not occupied the dwellinghouse at any time since 1993. Nor was it in dispute that, on disposing of the property in or about January 1995, Mr. Stevenson had ceased to be entitled to occupy it. Accordingly, on the face of the undisputed facts, a situation satisfying section 6(3)(f) had occurred, with the consequence that, as from a date in or about January 2000, the pursuer's occupancy rights in respect of the dwellinghouse were no longer capable of being exercised.
14. The pursuer's primary contention before the Lord Ordinary was that the five year period referred to in section 6(3)(f) had been interrupted by the raising of the present action in October 1998. The Lord Ordinary rejected that contention on three grounds. These in summary were, first, that the terms of section 6(3)(f) were quite clear as referring to the fact of occupation, not the right to occupy; second, that the terms of this provision were to be contrasted with possible alternative wording, including such as was to be found in section 6(1) of the Prescription and Limitation (Scotland) Act 1973; and third, that there was nothing unreasonable in the conclusion that, if a non-entitled spouse had not in fact occupied a matrimonial home for more than five years, her rights under sections 1 and 6(1) of the 1981 Act were at an end (see 2002 S.L.T. 445 at paras. [12] - [15]). The Lord Ordinary also rejected a contention by the pursuer based on her extrajudicial attempt in 1997 to reoccupy the dwellinghouse (see para. [16]). For these reasons he dismissed the action.
15. Before us the pursuer again appeared in person and maintained her written grounds of appeal, which to some extent she elaborated orally. She emphasised that her case proceeded on the basis that she was offering to prove that the defenders had been in bad faith. The legal principle that "off side goals are disallowed" applied here as elsewhere. The Lord Ordinary had erroneously disregarded the sheriff court proceedings which were closely related to this action and whose dependence had required this action to be sisted. She argued that the Lord Ordinary had failed to recognise that under section 1(1) of the 1981 Act a non-entitled spouse had occupancy rights not only when in occupation but also when not in occupation. His approach proceeded on an erroneous assumption that to exercise rights the non-entitled spouse had to be in actual occupation. The right to occupy and being in occupation were, she argued, effectively the same thing. The fact that a non-entitled and excluded wife had found alternative accommodation did not preclude her from claiming her occupancy rights in the matrimonial home, even though litigation to secure those rights took years to complete. The delay had not been of her making. Occupancy rights were of the nature of real rights in land. The raising of this action had interrupted the running of the 5 year period specified in section 6(3)(f). The action should be allowed to proceed to proof. She also provided certain information on the procedural history of this action and of the application in Alloa Sheriff Court, as summarised earlier in this Opinion. She suggested that the application had been a delaying tactic on the part of those with contrary interests to herself.
16. Mr. Macnair for the defenders submitted that the Lord Ordinary had reached the correct conclusion for the correct reasons. The statutory provisions were unambiguous. The Lord Ordinary's first and second reasons were plainly right. His third reason arose for consideration only if there was any ambiguity about the statutory provisions - which there was not. The statute unambiguously cut off a non-entitled spouse's occupancy rights if the entitled spouse had permanently ceased to be entitled to occupy the matrimonial home and at any time thereafter a continuous period of five years had elapsed during which the non-entitled spouse had not occupied it. The statutory provisions were designed to provide family protection in a context where the non-entitled spouse either was in actual occupation and threatened with eviction or had relatively recently been in such occupation and required the security of a home. Five years was an ample period for that purpose. No question of any personal bar could arise, for which, in any event, there was no plea in this action.
17. The issue in this case is essentially one of statutory construction. The context in which it arises is the creation by statute of certain rights of occupancy which may impinge on the enjoyment of proprietorial rights. The rights conferred under section 1(1) of the 1981 Act on a non-entitled spouse, namely, (a) if in occupation, to continue to occupy the matrimonial home and (b) if not in occupation, to enter into and occupy it, are both expressly "subject to the provisions of this Act". Section 6(1)(a) provides that the continued exercise of the non-entitled spouse's rights "shall not be prejudiced by reason only of any dealing of the entitled spouse relating to that home" - which would include its sale and disposition. But that provision is made subject to section 6(3) which provides for a number of situations in which section 6 is not to apply. These, since 1985, have included the passage of time provision contained in section 6(3)(f). The statute (as amended) accordingly envisages that, in the circumstances identified by section 6(3)(f), any occupancy rights conferred on a non-entitled spouse by the Act will no longer be capable of being exercised. Section 6(3)(f) clearly contemplates a situation where the non-entitled spouse is not in actual occupation and the right under section 1(1)(b) may be applicable. In contrast to familiar provisions in the Prescription and Limitation (Scotland) Act 1973 relating to prescription of rights and to limitation of actions, this provision does not envisage that the passage of the five years will be interrupted by the commencement of legal proceedings or by any other form of assertion of the rights in question. It must be assumed that the provision was intentionally so framed. There is a clear distinction between the assertion of a right to occupancy of a matrimonial home and the actual occupation of that home. The pursuer's submission that these were in effect the same must be rejected. While the existence of good faith by a purchaser may itself disapply section 6(1), the existence of bad faith does not, on the face of the statutory provisions, exclude or interrupt the running of time under section 6(3)(f). We see no way (and none was suggested) in which it could be construed otherwise. The existence of enforceable occupancy rights may impinge on the enjoyment of property rights; but where the occupancy rights are no longer enforceable, they no longer impinge on the property. On a plain application of the statutory provisions to the undisputed facts of this case, the pursuer has now no enforceable rights of occupancy in respect of the dwellinghouse in question. A proof would not assist matters. This reclaiming motion must accordingly be refused.
18. We would add that certain aspects of this case have caused us some concern. The pursuer alleges that the defenders have acted in bad faith. That is denied and is not proved; but this decision proceeds on the basis that proof of bad faith would not assist the pursuer or any other non-entitled spouse where the circumstances specified in section 6(3)(f) were met. That provision does not, as we have held, envisage that the running of time is interrupted by the raising of proceedings. Nor is any discretion conferred on the court to extend the time in any circumstances. The risk to the effectual vindication of occupancy rights by the passage of the time required to bring to final completion (including after any appeal or appeals) any defended action is compounded by the requirement made by section 7(4) that any such action must, in the event of an application being made under section 7 to dispense with consent, be sisted until the conclusion of the proceedings on the application. Such proceedings, even if themselves brought and pursued bona fide, could substantially extend the period within which the action could be brought to a final conclusion. Our attention was drawn to a recommendation contained in Part XI of the Scottish Law Commission Report on Family Law (Report No. 135), published in 1992, to the effect that the existing five year period might be reduced to one of two years (paras. 11.11 and 11.23). The carrying through of any such recommendation would, in the absence of other provision, appear to exacerbate matters. The authors of the Report, in reviewing the existing law at para. 11.6, appear to assume that the protection afforded by section 6(3)(f) is "against a delayed assertion of occupancy rights if, for example, there has been a false affidavit or forged consent" (emphasis added). That assumption would appear to be misplaced. In any reform it will, of course, be necessary to have regard to the legitimate interests of purchasers; but, if consideration is being given to reform in this area, the consequences of delay for which a non-entitled spouse is not responsible should also be borne in mind.