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Cite as: [2006] CSOH 66, [2006] ScotCS CSOH_66

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 66

OPINION OF LORD CLARKE

in the causes

SIMON STEPHEN

Pursuer;

against

THE MOST NOBLE SIR GUY DAVID INNES KER & OTHERS

Defenders:

________________

Pursuer: Campbell QC; Carruthers; Russel & Aitken

Defenders: Stuart; Turcan Connell WS

3 May 2006

Introduction

[1] These two actions came before me for debate on the Procedure roll. What I shall refer to as the first of the two actions relates to two notices to quit dated 12 May 2004 and served on the pursuer by the defenders on 13 May 2004 in relation to subjects known as Meikle Geddes, Nairn. The second action relates to two notices to quit dated 12 May 2004 and served on the pursuer by the defenders on 13 May 2004 in relation to subjects known as Broomhill Farm, Broomhill, Piperhill, Nairn.

[2 ] In both actions the pursuer seeks a declarator that he is a tenant of the subjects in question. He also seeks reduction of the notices to quit. There is factual dispute in relation to the first action as to whether there was, in the past, a written lease which governed the tenant's interest in the subjects. It was agreed between the parties that that factual dispute is of no materiality, in the present situation, since, on any view, the situation, as at 2004 was that the lease relating to the subjects was one based on tacit relocation. It is a matter of agreement that there was never any written lease in relation to the subjects to which the second action relates. The pursuer, in both actions, makes averments concerning the designation of the landlords in the notices to quit but I was advised that any such issue was no longer being pressed by him.

[3 ] The parties' representatives were agreed that both actions raise the same fundamental issues and that the actions could be resolved by a decision of the court in relation to those issues without the need for enquiry.

[4 ] In article 2 of the second action it is averred:

"The pursuer is the tenant of the farm. There is no written Lease. Some of the lands forming the farm have been farmed by the pursuer and his ancestors since around 1830. From about 4 January 1961 the farm was leased in the joint names of Margaret Jane Stephen and James Alexander Stephen and the survivor of them. That Lease was not constituted in writing. Margaret Jane Stephen was the pursuer's grandmother. James Alexander Stephen was his father. James Alexander Stephen died on 15 October 2000. His one half pro indiviso share in the Lease passed, by operation of the terms of his Will, to the pursuer. The farm was thereafter leased from the defenders jointly in the joint names of the pursuer and said Margaret James Stephen. That Lease was not constituted in writing."

Averments in virtually the same terms appear in Article 2 of the first action. In article 3 of both actions the following averments appear:

"Following upon the death of Mrs Margaret Jane Stephen the entire tenant's interest in the Lease vested in the pursuer by operation of the common law. When one tenant in a joint tenancy dies and the deceased's interest in that tenancy does not vest in a legatee or any other nominated beneficiary, the entire tenancy accrues to the surviving tenant."

It is, furthermore, averred in article 4 of both actions, as follows:

"Margaret Jane Stephen died on 4 August 2003. In terms of her Will she bequeathed her share of and her rights in the Lease of the farm to the pursuer. On 11 March 2004 her Executors transferred her share in the Lease of the farm to the pursuer. On 25 March 2004 the pursuer served a Notice in terms of section S12 of the Agricultural Holdings (Scotland) Act 1991 ('the 1991 Act') on the defenders intimating his intention to take up his late grandmother's interest in the Lease of the farm. On 13 May 2004 the defenders as Landlords served a document, described as a Notice to Quit upon the pursuer".

In relation to both farms, the defenders, in fact, served two notices both dated 12 May 2004 and both were served on the pursuer on 13 May 2004. The first of the two notices in each case required the pursuer to remove on 15 May 2005. The second notice required him to remove on 28 May 2005. The pursuer seeks reduction of all four notices. It was explained to me, by counsel for the defenders, that two notices were served, in each case, because of some uncertainty about the ish date. This explanation is referred to by the defenders in answer 3 in each action. Nothing turns on that matter for the purposes of the present proceedings. It is, however, of importance to note certain of the terms of the notices. In the first action the notices are, in inter alia, in the following terms:

"... you are required to remove from ALL and WHOLE the interest of the late Margaret Stephen in the tenancy of ALL and WHOLE the farm and lands of Meikle Geddes, Nairn lying in the county of .... of which subjects you are now the tenant, pursuant to your Notice dated 25 March 2004, in terms of the Contract of Lease between The Right Honourable Frederick Archibald Vaughan, Earl of Cawdor and Margaret MacDonald or Stephen and William Duncan Stephen dated 29 April and 4 May, both 1909, of which you are now in right of the tenant's part, pursuant to your Notice dated 25 March 2004. This Notice is given in pursuance of sections 22(2)(g) and 25(2)(a), (b) and (d) of the Agricultural Holdings Act 1991, as amended. The tenancy has been terminated for the purpose of our clients using the land for agriculture only. This Notice is given without prejudice to the right of our client, the Landlords, to enforce any other Notice served upon you at the same time as this Notice. We would advise that, in giving this Notice, we are acting entirely for the Trustees of Cawdor Marriage Settlement Trust and are of the view that the effect of this Notice will be to bring the entire tenancy to an end, owing to the absence of the necessary consents for the operation of tacit relocation as at Whitsunday dated 2005." (emphasis added)

The second notice served in relation to the subjects to which the first action relates was in the same terms as the first notice apart from, as has been seen, the date upon which the pursuer was required to quit the subjects. In the second action the relevant notices are inter alia in the following terms:

"... you are required to remove from ALL and WHOLE the interest of the late Margaret Stephen in the tenancy of ALL and WHOLE the farm and lands of Broomhill, Piperhill, Nairn lying in the County of Nairn and within the administrative district of The Highland Council at the term of Whitsunday (15 May) 2005, of which subjects you are now the tenant, pursuant to your Notice dated 25 March 2004 in terms of the oral Lease of the said farm. This Notice is given in pursuance of Sections 22(2)(g) and 25(2)(a), (b) and (d) of the Agricultural Holdings Act 1991, as amended. The tenancy is being terminated for the purpose of our clients using the land for agriculture only. This Notice is given without prejudice to the right of our client, the Landlords, to enforce any other Notice served upon you at the same time as this Notice. We would advise that, in giving this Notice, we are acting entirely for the Trustees of the Cawdor Scottish Discretionary Trust and are of the view that the effect of this Notice will be to bring the entire tenancy to an end, owing to the absence of the necessary consents for the operation of tacit relocation as at Whitsunday 2005." (emphasis added)

Defenders' Submissions and Discussion

[5 ] In seeking dismissal of both actions, counsel for the defenders advised the court that the defenders' position was encapsulated in averments to be found in the first action at answer 3 page 18 which are to the following effect:

"Further explained and averred that said Notice terminates the interest in the tenancy of the late Mrs Margaret Stephen transferred to the pursuer in terms of his Notice dated 24 March 2004. In consequence, the entire tenancy comprising that interest and the interest previously bequeathed by the late James Alexander Stephen to the pursuer will terminate on the ish date"

In elaborating upon the point, counsel submitted that the defenders' position was founded on a proper approach to the operation of tacit relocation. The lease, in the subjects, prior to the death of Mrs Margaret Stephen, operated on tacit relocation from year to year. Upon her death, as I understood that the defenders' position as advanced by counsel, the lease could not thereafter be continued by tacit relocation because she could no longer provide the necessary consent, either expressly, or by implication, for the lease to continue for a further year. Counsel for the defenders submitted that the position was as follows. The lease had been held pro indiviso by the pursuer and his grandmother, Mrs Margaret Stephen. The pursuer had acquired his interest in the lease upon the death of his father, who had prior to his death been a joint tenant, along with the pursuer's grandmother. It was accepted, on behalf of the defenders, that on the death of his grandmother, the pursuer succeeded to her interest in the lease. As I understood the defenders' position they contended that this was so because of the operation of section 16 of the Succession (Scotland) 1964 which is, inter alia, to the following effect:

"16(1) This section applies to any interest, being the interest of a tenant under a lease, which is comprised in the estate of a deceased person and has accordingly vested in the deceased's executor by virtue of section 14 of this Act; and in the following provisions of this section 'interest' means an interest to which this section applies.

(2) Where an interest -

(a)

is not the subject of a valid bequest by the deceased, or

(b)

is the subject of such a bequest, but the bequest is not accepted by the legatee, or

(c)

being an interest under an agricultural lease, is the subject of such a bequest but the bequest is declared null and void in pursuance of section 16 of the Act of 1886 or section 20 of the Act of 1949,

and there is among the conditions of the lease (whether expressly or by implication) a condition prohibiting assignation of the interest, the executor shall be entitled, notwithstanding that condition, to transfer the interest to any one of the persons entitled to succeed to the deceased's intestate estate, or to claim legal rights or the prior rights of a surviving spouse out of the estate, in or towards satisfaction of that person's entitlement or claim; but shall not be entitled to transfer the interest to any other person without the consent of the Landlord".

Section 16(8) is to the following effect:

"Where an interest is an interest under an agriculture lease and is the subject of a valid bequest by the deceased, the fact that the interest is vested in the executor under the said section 14 shall not prevent the operation, in relation to the legatee, of paragraphs (a) to (h) of section 16 of the Act of 1886 or, as the case may be, subsections (2) to (7) of section 20 of the Act of 1949." (The equivalent of section 20 of the 1949 Act is now section 11 of the 1991 Act).

Section 12(1) of the 1991 Act provides as follows:

"A person to whom the lease of an agricultural holding is transferred under section 16 of the Succession (Scotland) Act 1964 (referred to in this section as 'the acquirer') shall give notice of the acquisition to the landlord of the holding within 21 days after the date of the acquisition, or, if he is prevented by some unavoidable cause from giving such notice within that period, as soon as is practicable thereafter and, unless the landlord gives a counter-notice under subsection (2) below, the leases shall be binding on the landlord and on the acquirer, as landlord and tenant respectively, as from the date of the acquisition."

As has been seen, at one stage in his pleadings, the pursuer avers that his grandmother's interest in the lease was bequeathed to him.

[6 ] Section 11(1) of the 1991 Act provides:

"Subject to subsections (2) to (8) below, the tenant of an agricultural holding may, by will or other testamentary writing, bequeath his lease of the holding to his son-in-law or daughter-in-law or to any one of the persons who would be, or would in any circumstances have been, entitled to succeed to the estate on intestacy by virtue of the Succession (Scotland) Act 1964".

[7 ] It appeared, from the submissions of counsel for the defenders, that whether by operation of the law of testate or intestate succession, it was accepted that the pursuer had succeeded to his grandmother's interest in the leases and the defenders as landlords had accepted that as being the position. But the fundamental point, upon which the defenders' case relied was that on succession there remained two distinct interests in the leases, the pursuer's own as an individual and his interest as successor to his grandmother. Because of that situation, tacit relocation was no longer possible at the ish date. The approach to the matter, it emerged, relied on what was conceived to be the law as set out in certain authorities. The first of these, to which I was referred, was the case of Coates v Logan 1985 SLT 221. The circumstances of the case were as follows. A tenant died on 14 August 1978 bequeathing his interest in the lease to his brother. By letter dated 5 September 1978 purported notification of acceptance of the bequest was given. By letter dated 28 June 1979 intimation was purportedly given that the tenant's executors had transferred the deceased tenant's interest in the lease to the brother by docket on the confirmation. The brother averred that he had been a tenant in common with the deceased in a lease, operating on tacit relocation, and originally granted in favour of the father, the deceased brother and the surviving brother. The landlords sought declarator that the lease was at an end, arguing that where there had been acceptance of the bequest but without timeous notice notification thereof the interest could not be transferred as part of the deceased tenant's intestate estate. The legatee and the executors of the deceased tenant argued that valid acceptance was only constituted when there was timeous notification of acceptance and thus, there having been no timeous notification of acceptance, the interest in the lease was validly dealt with as part of the deceased tenant's intestate estate. The legatee and the executors also argued that, even if the action was relevant, the legatee was entitled to be in possession because he had been a joint tenant with his deceased brother and, in any event, the executors were entitled to remain in possession, the interest in the lease not having been disposed of by them. The Lord Ordinary, Lord Ross, held that the executors, having purportedly transferred the interest in the lease by docket on the conformation, could not maintain that they were entitled to remain in possession of the lease and that the bequest having been accepted but no notification thereof having been given, the legatee had no right to possess nor had a person claiming right by transfer to him of the interest as part of the deceased's intestatestate. The court granted decree of declarator that the tenancy had come to an end. It was clearly an essential element of the court's decision in that case that there had been no timeous notice given to the landlord that the deceased's bequest of his interest in the lease had been taken up. But the case was relied upon by the defenders, in the present case, for the court's discussion regarding tacit relocation. It is important, however, when considering that discussion to have in mind the facts of case around which the discussion revolved. In the Coates case the landlord brought the action of declarator against the first defender, the brother of the deceased tenant and the executors of the deceased tenant. The defenders averred that "by missives dated 13 and 22 June 1932 the pursuer's predecessors in title agreed to let the said holding to Robert Logan and his two sons, namely the deceased and the first defender." Robert Logan died on 10 December 1942. The defenders' pleadings were silent as to what had happened to the share of Robert Logan in the lease, on his death, on 10 December 1942. Senior counsel for the defenders, however, maintained that the death of one of three joint tenants had no effect on the other two, and that the lease did not come to an end when one died. Having noted that submission Lord Ross, at page 225, second column said:

"In my opinion, what senior counsel for the defenders contended is correct during the currency of a lease. Thus it is well settled that if one of two joint tenants becomes bankrupt during the currency of the lease and so abandons of the lease, that does not terminate the right of the joint tenant but that the surviving tenant is entitled to continue in his possession of the subjects let (Young v Gerard; Buttercase & Geddie's Tr. v Geddie)."

His Lordship continued:

"In my opinion, however, the position is different where the lease is one which requires to be continued by tacit relocation. Tacit relocation is based on the implied consent of all parties to a lease. As Lord President Clyde said in Smith v Grayton Estates Ltd at page 41:

'Tacit relocation is not an indefinite prolongation of a lease. It is the prolongation each year of the tenancy for a further one year if the actings of the parties to the lease show that they are consenting to this prolongation. For as in all of contracts a tacit relocation of reletting must be based on consent. In the case of tacit relocation the law implies that consent if all the parties are silent on the matter. Hence where there are joint tenants, tacit consent by both of them is necessary to secure the prolongation and to enable tacit relocation to operate. Silence by both is necessary to presume that both the tenants wish the tenancy to continue for another year'.

In the instant case, as senior counsel for the defenders accepted, since the missives relied on were silent as to the duration of the lease, at best for the defenders the lease could be construed as a lease for one year only. It follows that the defenders must rely on tacit relocation in this case. In my opinion, however, there could be no tacit relocation here unless all of the original tenants under the lease or their successors continued in existence. Thus, when the lease first case to be renewed by tacit relocation, tacit consent of the three joint tenants could only be implied so long as they remained in existence. Once Robert Logan died, however, the position was different. If his interest had been taken up by his heir, tacit consent of all three joint tenants might still be implied. But there is no averment as to what happened to his interest, and accordingly, one cannot assume that the heir ever took it up. If the heir did not take up Robert Logan's interest before the term of the lease expired, Robert Logan's interest would lapse and there would not therefore be any room for tacit relocation (Wilson v Stewart). In the instant case, there is no averment as to what happened to the interest of Robert Logan after his death, and we can only assume that it lapsed. That being so, there could be no question of tacit relocation of the lease since the tacit consent of all parties interested in the lease, or their successors, could not have been obtained." (emphasis added)

[8 ] Without embarking on any consideration of the soundness, or otherwise, of that approach, it will be immediately apparent that the present cases are distinguishable, on their facts, from the position in the case of Coates since it is not suggested, in the instant cases, by the defenders, that the interests of Mrs Stephen have lapsed. On the contrary, in answer 5, in both actions, the defenders aver:

"Explained and averred that following the death of the said Margaret Jane Stephen and the giving of Notice dated 25 March 2004 by the pursuer to the Landlords under Section 12 of the 1991 Act the pursuer succeeded to said Margaret Jane Stephen's interest in the joint tenancy".

[9 ] Counsel for the defenders referred me next to the case of Smith v Grayton Estates Ltd 1960 SC 349. In that case one of two joint tenants of an agricultural holding, held on tacit relocation, served on the landlords, within the prescribed period, a written notice intimating his intention to remove from the holding. The other tenant wished to maintain the lease and did not consent to the notice being given. The First Division held, in that case, that since tacit relocation was based on the implied consent of all the parties to a lease, a notice of removing of one of two joint tenants was enough to exclude tacit relocation and to terminate the lease. Lord President Clyde at page 355, after having acknowledged that there was little authority on the matter in the decided cases, explained the reasons for his decision as follows:

"In my view, therefore, at common law, the effect of the notice by one of these two tenants is to stop the running of tacit relocation and to terminate this lease at Martinmas 1959. The alternative construction of the notice by one of two joint tenants involves the consequence that the tenant who desires to terminate the tenancy, and has given notice to that effect, must none-the-less be deemed to have consented to its prolongation from year to year until such time as the other tenant agrees also to give a notice. Such a result is neither in accordance with principal nor equity."

Lord Sorn at page 356 said this:

"The doctrine of tacit relocation is based on implied consent, silence being taken for consent in this particular context. That being so, it seems to me that tacit relocation needs the consent of all the parties, through their silence, whose consent would be necessary to the making of a new lease on the same terms. It is in fact a relocation or a renovation of the lease in principle. That situation did not obtain in the present case in view of the notice given by one of the tenants, and that is enough for the decision of the case. It was suggested that the notice was ineffective because it was not given jointly by the tenants as joint tenants; and that only a joint notice could affect a joint tenancy, but this I am not able to agree with. The landlord has been dealing with a joint tenancy, and a notice from one tenant that he is not willing to go on is in effect a notice that there is no longer such consent as is necessary to keep a joint tenancy in existence."

Later his Lordships said:

"I think it is satisfactory that we have reached this conclusion, because the result of the opposite view would put joint tenants into a curious relationship with each other. Not only would each tenant be bound for the currency of the lease, but after the lease had expired, each would continued to be bound for an indefinite period until one could persuade the other to unite in giving a joint notice of removal."

[10 ] While the defenders accepted that the interest of the Mrs Stephen in the tenancies had passed to the pursuer, this, they contented, had occurred under section 12 of the 1991 Act and when the defenders served notices in terms of section 25 of the 1991 Act, counsel for the defenders submitted the interests of Mrs Stephen, which had passed to the pursuer, were brought to an end. After the notices were served the joint tenancies ended and there could be no tacit relocation.

[11 ] Section 25(1) of the 1991 Act is to the following effect:

"This section applies where notice to quit is duly given to the tenant of an agricultural holding who acquired right to the lease of the holding -

(a) under section 16 of the Succession (Scotland) Act 1964; or

(b) as a legatee, under section 11 of this Act."

Section 25(2) of the 1991 Act goes on to provide as follows:

"Notice to quit is duly given to a tenant to whom this section applies if -

(a) it complies with section 21 of this Act; and

(b) it specifies as its effective date -

(i) where, when he acquired right to the lease, the unexpired period of the lease exceeded 2 years, the term of outgo stipulated in the lease;

(ii) where, when he acquired right to the lease, the unexpired period was 2 years or less, the term of outgo stipulated in the lease or the corresponding date in any subsequent year, being a date not less than one nor more that 3 years after the said acquisition;

(c) where he was a near relative of the deceased tenant from whom he acquired right, it specifies the Case set out in Schedule 2 to this Act under which it is given; and

(d) where he was not a near relative of the deceased tenant from whom he acquired right , he acquired right to the lease after 1 August 1958".

Counsel for the defenders accepted that the declarators sought i.e. that the pursuer is the tenant of the relevant subjects, would have been appropriate as at 11 May 2004, prior to the notices to quit, but not thereafter. The argument, as I have it noted it, was that, "The notice terminated the interest which had passed to the pursuer. There could, in that situation, be no agreement to lease because the contract no longer existed." The matter was put another way, by counsel for the defenders, in the following terms, "There were joint tenants interests and one of these has been terminated by notice and therefore tacit consent could not be given regarding that terminated interest. In effect, the interest of one of the joint tenants no longer existed."

Counsel referred to Gill "Law of Agricultural Holdings in Scotland" (3^rd Edition) at paras 14-17 and 14-18 where, inter alia the effect of the decision in Smith v Grayton Estates is discussed.

[12 ] In conclusion, counsel for the defenders submitted that there were no relevant averments supporting the pursuer's case and invited me to sustain the defenders' first and second pleas-in-law in both actions and to dismiss them.

The Pursuer's Submissions and Discussion

[13 ] In reply, junior counsel for the pursuer, invited me to sustain the pursuer's second, fourth and fifth pleas in both actions and to grant decree in terms of first three conclusions in each action.

[14 ] Junior counsel submitted that the pursuer's case was based, in the first place, on the following proposition. By operation of common law, timeous intimation by a previous joint tenant, to a landlord, of his willingness to continue with a current lease operates to secure the tenancy in the remaining tenant in a case where the other joint tenant has become legally disabled or has died. The key to this approach, it was contented, was the indication by the remaining tenant that he wished to continue the lease after the other tenant became, by legal disability or death, unable to continue. The approach was vouched by the proposition stated in Gill op. cit. at para 14.7 which is to the following effect, "In such a lease the extinguishment of the interest of one joint tenant during the contractual currency does not extinguish the rights of the others". In the present case, the pursuer had shown his willingness to continue with the tenancies after the death of his grandmother, by continuing to farm the subjects. He had, however, gone further by serving a section 12 notice on the landlords. The serving of that notice was "a prudent thing" for the pursuer's solicitors to do but it was now accepted, on behalf of the pursuer, that the pursuer had not acquired his grandmother's interest in the tenancies by virtue of section 16 of the Succession (Scotland) Act 1964 and, therefore, strictly a section 12 notice was not necessary. Reference was made to the case of Young v Gerard (1843) 6D347. Counsel also referred to Buttercase & Geddie's Trustee v Geddie (1897) 24R 1128 in which the court, following Young v Gerard, held that, in a joint tenancy, the bankruptcy of one tenant did not, by operation of law, terminate the lease of the other. The case of Coates, it was submitted could be distinguished from the present cases because the decision in that case, in relation to the question of tacit relocation, turned on the absence of averments as to what had happened to the interest of one of the joint tenants on his death. Reliance by the defenders on section 25 of the 1991 Act was, it was submitted, misconceived. The intention of parliament was that section 25 was directed at acquiring new sole tenants, not to persons, in the position of the pursuer, who already had right in the tenancy of the subjects before acquiring any interest of his grandmother. The policy of the act should not be read in such a way as to deprive persons, such as the pursuer, of rights of possession which they previously had.

[15 ] Junior counsel for the pursuer went on to make a further submission to the effect that if the court was not with him in his submissions thus far, the pursuer's case was supported by having regard to human rights law. Reference was made to section 3 of the Human Rights Act 1998. The court should interpret the provisions of the domestic legislation, in such a way, as not to infringe the pursuer's property and possessory rights which were protected by article 1 of protocol 1 of the European Convention on Human Rights. Reference was made to James v United Kingdom (1986) 8 EHHR 123. The approach put forward by the defenders, it was submitted, involved the pursuer being deprived of possessory rights, without compensation, which offended against Article 1 of Protocol 1.

Parties' Replies

[16 ] In reply, counsel for the defenders emphasised the phrase, used in the proposition relied upon by the pursuer, from Gill op. cit. at para 14-7 namely, "during the contractual currency". The defenders were not submitting that there was any extinguishment of the pursuer's rights during the currency of the lease. The Section 25 notices took effect at the ish when tacit relocation was required.

[17 ] As regards the pursuer's argument based on the ECHR it was submitted that Article 1 of the First Protocol was not engaged in the circumstances of these cases. The rights of the pursuer were rights of possession under the leases and subject to the law in relation to such leases. The convention gave the pursuer no greater rights than under domestic law Carson v Secretary of State (2003) 3 All ER 57 per Laws, LJ at page 587 para 18. Under our common law, and domestic legislation, the landlord had the right to terminate a tenancy, in certain circumstances, and to require the removal of a tenant. One of these provisions was section 25. A tenancy, even when on tacit relocation, was always subject to a termination by valid notice. Reference was made to Lancashire County Council v Joseph Taylor (unreported) 7 April 2004. There were provisions for compensation under the domestic legislation. The position advanced by the pursuer revealed no basis for a complaint what involved a contravention of the pursuer's human rights.

[18 ] Senior counsel for the pursuer, in a very brief reply, adopted junior counsel's submissions. Senior counsel stressed that the pursuer's position, in law, would have been the same, in principle, if Mrs Stephen had not been a relative of the pursuer. Section 25(1) was not applicable because the pursuer had acquired a right to the tenancies before any right of his grandmother had been vested in him.

Decision

[19 ] Both sides were in agreement that the precise questions raised in these actions are novel and are not directly covered in previous authorities.

[20 ] In the first place, it appears to me, that it is of some importance to remind oneself as to the juristic nature of a "joint tenancy" in the circumstances of these cases. In Gill op. cit. at para 3-12 matters are put this way:

"The expression 'joint tenancy' refers in the strict sense to the indivisible right of tenancy held by a body of trustees or by the members of an unincorporated association. In such cases there is accretion of the right to survivors.

In contrast, in a tenancy in common held by a number of tenants pro indiviso the share of each tenant descends to his successor, either be it by bequest or by transfer, unless there is a survivorship destination. This case is invariably referred to as a lease to joint tenants."

In Provost, Magistrates & Councillors of Banff v Ruthin Castle Ltd 1944 SC 36 Lord Justice Clerk Cooper at page 68 drew the following distinction:

"Property may be vested in two or more person either jointly or in common. Where property is held jointly their owners have no separate estates but only one estate vested in them pro indiviso, not merely in respect of possession but also in respect of the right of property. The right of a joint owner accresces on his death to the others and cannot be alienated or disposed of either inter vivos or mortis causa. Instances of this mode of holding are found in the ownership of trustees, the rights of members in the property of a club, and joint liferents.

In the case of property held in common each proprietor has a title to his own share which he may alienate or burden by separate act. On the death of one of the common owners whose share will pass under his will or transmit to his heirs."

(See the references by Lord Ross to this case in the case of Coates at page 225).

It is the second of the two situations described by Lord Justice Cooper which, in my judgment, reflects the position in the present cases. The legal consequences of that being so are set out in Paton and Cameron, Landlord and Tenant pages 60 to 61 as follows:

"As the tenant's obligations in the lease are obligations ad facta praestanda it follows that in the absence of a provision to the contrary each of the joint tenants is liable in solidum for implement of all the obligations, including payment of rent; and this also applies to obligations arising as a result of tacit relocation. The fact that one of the two lessees does not occupy the subjects does not exempt him from liability for the non-observance of conditions by the other. Each joint tenant is entitled to insist on joint possession and management, although the subjects are partly agricultural and partly mineral. Each tenant has a distinct right to his pro indiviso share which he can transmit by assignation to a third party, if assignation is not excluded; and if he dies intestate, his interest in the lease passes to his own executors, unless there is provision to the contrary. On the other hand a lease may be granted in favour of two lessees and the survivor, and in this event the predecessor's share will accrue to the survivor."

If that be a correct description of the legal situation which applied, while the pursuer and his grandmother were tenants under the leases, and I consider that it is, the pursuer's primary proposition, in support of his case, that on his grandmother's death her interest in the leases automatically accresced, as it were, to him, by operation of law, is unsound. After her death, Mrs Stephen's interest in the leases vested in her executors. They had the power to transfer that interest to the pursuer. The defenders accept that her interest was transferred to the pursuer by Mrs Stephen's executors. The question which then arises, it seems to me, is this - who, at that point in time (i.e. upon the transfer of the grandmother's interest to the pursuer) were the parties to the leases. The answer to that question is that the parties to the lease were the pursuer and the defenders. There were no longer joint tenants. There was one single tenant. The nature and terms of the leases otherwise remained the same. The position is distinguishable from the position of the case of Coates where there had been no transfer of the deceased's joint tenant's interest to the surviving tenant. For that reason I do not consider that that decision is decisive of the present cases. For the operation of tacit relocation of the lease, from the tenant's side, once the pursuer had become the sole tenant, there was only one person, with one interest, to give consent to the continuance of the lease, as tenant, i.e. the pursuer. The position of the defenders, advanced in these cases, in my judgment is, accordingly, misconceived in suggesting that because, at the ish, Mrs Stephen was no longer surviving there could not be relocation. To talk, in the terms of the defenders' notices, of the pursuer being required "to remove from ALL and WHOLE the interest of the late Margaret Stephen" in the leases, seems to me to be a legal nonsense. The legal position is that the whole, undivided and unshared interest in the leases, as tenant, vested in the pursuer when Mrs Stephen's executors transferred her interests to him, this not being objected to by the defenders and it being expressly acknowledged on their behalf, before the court, that this had been validly done.

[21] On the foregoing analysis of matters, section 25 of the 1991 Act has no application to the circumstances of these cases. The opening words of section 25(1) provides that it applies

"where notice to quit is duly given to the tenant of an agricultural holding who acquired right to the lease of the holding -

(a) under section 16 of the Succession (Scotland) Act 1964; or

(b) as a legatee, under section 11 of this Act."

In the present cases, the pursuer already had right to the leases of the holdings as against the landlords under the leases. It seems to me that the provisions of section 25 are designed to cover the position where a stranger, as it were, to the lease acquires for the first time an interest in it by succession, whether on intestacy or by bequest and to provide the landlord with some protection in that situation. It does not follow that these provisions are appropriate, or necessary, where there is in existence a joint tenancy and the surviving tenant becomes the sole tenant. It follows, therefore, that I am of the opinion that the sole basis for the defenders seeking to contend, before the court, that these leases have been validly terminated is unsound. I am of the view that the leases remained capable of being continued by tacit relocation and any termination of them required to be effected by the law in relation to leases held on tacit relocation.

[22 ] [I should, perhaps, add that I have, in any event, some doubt as to whether the notices in question, even if they had potentially applied to the present situations were, having regard to their wording, in appropriate form, having regard to the provisions of section 25(2). But there was, I must stress, ever no discussion about these matters before me].

[23 ] Lastly, having regard to the views I have formed of these cases, I do not require to deal with the pursuer's case, made however lightly, under reference to the ECHR. I would simply say that, had I otherwise been against the pursuer's position, I would have had no hesitation in reaching the conclusion that this argument was completely misconceived for the reasons advanced by counsel for the defenders.

[24 ] There was some inconclusive discussion before me about the proper disposal of these actions, particularly with regard to the form of the conclusions as they presently stand, in the event of my rejecting the defenders' arguments. I shall, accordingly, have these cases put out by order for discussion as to their disposal in the light of my foregoing opinion.