Lands Tribunal for Scotland

OPINION

Higgins
v
North Lanarkshire Council

Mr James Higgins is the tenant of 8 Livingstone Place, Airdrie ("the House"). His landlords are North Lanarkshire Council ("the Council"). As his is a secure tenancy Mr Higgins has a right, by virtue of section 61 of the Housing (Scotland) Act 1987 ("the Act"), to purchase the House from the Council at a discounted price. In July 1998 he applied to do so; and on 14 August 1998 an offer to sell was duly served on him by the Council.

As the Council have pointed out, the offer simply describes the House as "that flatted dwellinghouse known as and forming Number Eight Livingstone Place, Airdrie, together with the whole garden ground and other ground exclusively enjoyed and used therewith …" And ex facie it therefore complies with section 64(1)(a) of the Act - which requires that the conditions of such an offer "shall have the effect of ensuring that the tenant has as full enjoyment and use of the house as owner as he has had as tenant." But it is admitted by the Council that the precise extent of the subjects they propose to sell is to be defined by reference to a plan ("the Deed Plan") which they have since submitted to Mr Higgins and he has rejected. In order to challenge the accuracy of the Deed Plan Mr Higgins has applied to the tribunal under section 71(1)(d) of the Act for a finding that the Council have "served an offer … to sell whose contents do not conform with" the requirements of the Act. If such a finding is made then the tribunal are, in terms of section 71(2)(b) of the Act, called upon to serve on the tenant an offer to sell "in proper form." In the circumstances of this case, that, in effect, amounts to an invitation to the tribunal to alter the Deed Plan so as to include within the subjects to be conveyed to Mr Higgins (in addition to the garden ground which the Council have already offered to sell to him) a strip of land ("the disputed land") between the House and 12 Livingstone Place. Mr Higgins avers that the disputed land was included in the lease granted to him. The Council deny that that is so.

At the hearing Mr Higgins was represented by Mrs McWilliams, solicitor. She led in evidence Mr Higgins; the immediately previous tenant of the House, Mr David McMeechan; and the present tenant of 10 Livingstone Place, Mrs Catherine Barbour. The Council were represented by Mr Parham of their legal department who led in evidence Mr James Smyth, assistant area manager in the Council's housing services department; and Mr Des Kearney, a cartographic technician also in the employment of the Council. We subsequently made an accompanied site inspection.

As that inspection confirmed, the houses in the immediate vicinity of the site are flatted properties in two storey blocks, each of which contains four houses. The House is an upper flat. The ground floor flat immediately below it is 6 Livingstone Place. And the two remaining houses in the block are 2 and 4 Livingstone Place. The neighbouring block to the north-east comprises 10/16 Livingstone Place. Between the facing end gable walls of those two blocks there lies an area of open ground affording access to the rear. The rear part of that ground is bisected by a substantial and recently erected timber fence. However that fence does not extend all the way to the public footpath at the front.

The garden ground surrounding each half block is allocated between the upper and lower flats. The scheme of allocation employed by the Council throughout the housing estate of which the site forms part is that, in regard to rear garden ground, one half attaches to the relevant lower flat; and the other to the relevant upper flat. Both halves of the rear garden are, in each case, accessed by means of pathways running from the public footpath at the front. Each such path is common as between the relevant upper and lower flats. To the side of each such path, and lying between it and the mutual boundary with the neighbouring block, is a strip of ground attaching to the relevant upper flat. All the remaining front garden ground attaches in each case to the lower flat. The result is that upper flats in neighbouring blocks each have a continuous strip of front and side garden ground, merging with their rear gardens. The mutual boundary fence between neighbouring blocks of houses thus divides the front, side and rear garden ground of each neighbouring pair of upper flats. Such fences were originally of chestnut paling. In some cases they have been erected (by the landlords) equidistant between each adjoining block. However, as will hereinafter appear, that is not the position in every case.

Livingstone Place is in part situated on the side of a hill. Consequently there are, on the gable end of the block of which the House forms part, short flights of steps leading up to the entrance doors of both 6 and 8 Livingstone Place. And to accommodate them it has been necessary to off-set the common access path, leading to the rear gardens of both those houses, from the gable end of the block by the width of the flights of steps. The main doors for 10 and 12 Livingstone Place, in the neighbouring block, are situated in the facing gable end: but are, in contrast, at ground level. And there is, therefore, no need for any steps similar to those at 6 and 8 Livingstone Place.

In the circumstances just described it would, prima facie, be reasonable to position the mutual boundary line dividing the front, side and rear garden ground attaching to, respectively, the House and the upper flat Number 12 Livingstone Place in one of two positions. It might either be positioned equidistant between the gable ends of the two adjoining blocks: or, alternatively, equidistant between the two access paths. In the latter position the result would be to leave two equally wide strips of useful garden ground on either side of the mutual boundary line, measuring (at the front and side) between the boundary line and the access paths; and (at the rear) between the boundary line and a line extending from the outer edge of the access path to the boundary with the garden of the lower flat. But if that were to be the chosen position of the boundary line then it would, of course, be closer to the gable end of the block of which 12 Livingstone Place forms part; and further away from the gable end of the block of which the House forms part; and that by the width of the flights of steps described (approximately one metre). As Mr Higgins pointed out in his evidence and as we saw on site inspection, that is the position between Numbers 14 and 16 and 18 and 20 Livingstone Place, where similar conditions occur. As the two gable ends are only about 6.5 metres apart the positioning of the boundary line is of critical importance: inasmuch as there is insufficient space to allow the occupants of both the House and 12 Livingstone Place to use their front and side garden ground as a driveway for a car.

The applicant claims that the garden ground leased to him with the House is greater in extent than that which the Council are prepared to sell to him. Put shortly, it is his case that the mutual boundary fence which existed when the House was let to him indicated that the boundary line between the front, side and rear garden attaching to the House and that attaching to 12 Livingstone Place was equidistant between the two access paths. But (as he has for some time been aware) that is not the boundary line shown on the plan attached to the conveyance of 12 Livingstone Place granted by the Council when, in 1998, they sold that house to its then tenant (and present owner), Mrs Myra Sloan. The Council maintain that the boundary line shown in that conveyance was correct and deny that the applicant presently tenants the disputed land: which (as will be evident from the foregoing) is, in effect, a strip of ground approximately one metre in breadth and running the whole length of the mutual boundary (as shown on the plan attached to the said conveyance) between the House and 12 Livingstone Place.

In his evidence Mr Higgins explained that the House was let to him in 1972. The tenant of 12 Livingstone Place at that time, Mr McMeechan (who resided there continuously from 1968 until 3 August 1994), corroborated Mr Higgins' evidence that the boundary between their respective gardens had originally been on a line equidistant between the two access paths.

However, in about 1984 or 1985, Mr McMeechan and Mr Higgins came to an arrangement whereby the fence was moved from its original position. Mr Higgins at that time had no car. Mr McMeechan did. He wanted to be able to park it off the road. The fence in its original position made that impossible without encroaching on the mutual access path. It was agreed therefore that the fence be moved, for the whole of its length and by about one metre, towards the House and away from 12 Livingstone Place. That increased the width between the gable wall of 10 and 12 Livingstone Place and the fence as re-erected from about 2.25 metres to 3.25 metres; and this gave Mr McMeechan sufficient room to drive his car along the strip of ground situated alongside the access path to his rear garden: where he then erected a garage. The garage no longer exists. It was removed by Mr McMeechan when he quit 12 Livingstone Place. However, according to Mr McMeechan, it was erected entirely on his ground and not in part on the ground he had taken over from Mr Higgins.

It was, as both Mr Higgins and Mr McMeechan confirmed in the course of their evidence, a condition of the verbal agreement they had come to that the fence would be moved back to its original position if Mr McMeechan should surrender his tenancy or if Mr Higgins should decide to purchase the House. Mr McMeechan believed that Mr Higgins had continued to be the tenant of the disputed ground (notwithstanding the fact that it had, temporarily, been transferred to his use under their agreement). That agreement was not notified to the Council.

On 2 August 1994, the evening before he vacated 12 Livingstone Place, Mr McMeechan faithfully implemented his agreement with Mr Higgins by restoring the fence to its original position. Mrs Barbour witnessed both occasions on which the fence was re-positioned by Mr McMeechan (and to that extent was thus able to corroborate his evidence and that of Mr Higgins). About a week before Mr McMeechan quit his tenancy, officers of the Council's housing management department routinely inspected 12 Livingstone Place. The purpose of such routine inspections is, as Mr Smyth testified, to determine whether any repairs are necessary; and if so whether they are the responsibility of the departing tenant. While it is, on such inspections, usual to examine boundary fences with a view to establishing their state of repair, it is not usual to check whether they may have been moved. And Mr McMeechan's evidence was that he made no mention of his arrangement with Mr Higgins to the Council's inspectors in the course of their visit.

The Council do not have a record of the boundaries of their tenanted properties. However, in 1989, the Council prepared a deed plan in connection with the sale of 10 Livingstone Place to Mrs Barbour. As 10 Livingstone Place is a lower flat, it does not have any common boundary with the House or with 6 Livingstone Place (the common boundary between each block of houses being mutual as between ground in the tenancy or ownership of occupants of upper flats only). But measurements taken on site by the Council in 1989 established the position of the boundary fence which (if the applicant's evidence is to be believed) Mr McMeechan had, by then, moved in accordance with his agreement with Mr Higgins. On that basis, it would follow that the 1989 deed plan, being based on observations made at that time, would not have shown the boundary fence in what Mr Higgins and Mr McMeechan say was its original position.

Mr Higgins did not, in 1989, make any representations to the Council concerning the accuracy of the deed plan then prepared for the reason that he did not share a common boundary with 10 Livingstone Place. However that is, in the light of Mr Smyth's further evidence that it is only proprietors or tenants whose properties have a common boundary with any tenanted house about to be sold who are supplied with a copy of any deed plan prepared in that connection, hardly surprising. Mr Higgins would have had no notification that his tenancy boundary was being "officially" recognised as something other than that which he claims was his "official" boundary when the House was leased to him in 1972.

In September 1994 the tenancy of 12 Livingstone Place (i.e. the upper flat in the adjoining block whose front, side and rear garden ground shares a mutual boundary with the House) was taken up by Mrs Sloan. Some six months or so later she is said by Mrs Barbour to have approached her to seek her opinion as to whether Mr Higgins would mind if the fence were again moved. Mrs Barbour encouraged her to approach Mr Higgins himself. Mr Higgins' evidence is that he then entered into a verbal agreement with Mrs Barbour on the same terms as he had with Mr McMeechan. The reason for her approach had, as with Mr McMeechan, been that she wanted to be able to park her car off the road. And, according to Mr Higgins, that is how the fence had come to be moved again by one metre along the whole of its length, as before. Mr Higgins accepts that he did not intimate his agreement with Mrs Sloan to the Council.

Mr Higgins' evidence that the fence had again been moved, this time by Mrs Sloan, along the whole of its length was corroborated by Mrs Barbour. However, as the garage that Mr McMeechan had erected had by then been removed and as no substitute garage has been erected since, it is not immediately obvious why Mrs Sloan should have wanted to take the trouble of moving the fence along the whole of its length. And the evidence that the whole fence had been moved by Mrs Sloan was put in doubt by Mr Smyth.

He visited the site in 1998 with two colleagues, one of whom was Mr Kearney. That visit had been arranged in connection with the application Mrs Sloan had (on 8 July 1998) made to purchase 12 Livingstone Place. However, according to Mr Smyth, Mrs Sloan had made some remark to the effect that there "might be a problem" about the fence. It is part of Mr Smyth's responsibilities to deal with boundary disputes between tenants. He therefore met (at separate times) with both Mr Higgins and Mrs Sloan on site. He recalled that Mr Higgins had confirmed to him that part only of the fence had been removed some two years previously as a result of an informal arrangement he had come to with Mrs Sloan. That accorded with what was plainly visible at the time of Mr Smyth's visit - namely that there was no fence then remaining for a distance of some 12 feet or so backwards from the front pavement. However he appears to have understood from his conversations with Mr Higgins and, more particularly, with Mrs Sloan that that was the only agreement they had come to. Accordingly he had no reason to suspect that the remaining fence, at the rear, was not in its original position.

Mr Kearney was not able to corroborate Mr Smyth's testimony in full because he had not been present when Mr Smyth had spoken to Mr Higgins and to Mrs Sloan. His job had been to prepare a deed plan for the pending sale of 12 Livingstone Place to Mrs Sloan. He had compared his measurements with those that had been used to prepare the 1989 deed plan and found them to be congruent with his own. It had been necessary to do this in case any changes had occurred in the interim 10 year period. He had noted one change - where a 4 metre length of fence (measuring from the front boundary) had been removed. Despite its removal, and having regard to the location of the remainder of the fence and its geometrical extension from tying-in measurements shown on the sketch used to prepare the 1989 deed plan, he had been satisfied that the boundary between the tenancies of the House and 12 Livingstone Place was, in 1998, the same as it had been in 1989.

Essentially Mr Kearney's evidence as to the correct position of the mutual boundary between the House and 12 Livingstone Place was, therefore, a matter of inference based on the proposition that the 1989 deed plan had been accurate. And the impression we have formed is that Mr Smyth too was greatly influenced by the 1989 plan when he came to the conclusion that the disputed land should be conveyed to Mrs Sloan. The evidence given by Mr Smyth, in so far as it was inconsistent with that given by the applicant and his witnesses, could perhaps have been corroborated by Mrs Sloan. And, given the importance (in the context of this application) of the position of the mutual fence at the time when 12 Livingstone Place was let to Mrs Sloan, it is evident that the Council would have been disposed to call her as a witness. Yet she was not among the witnesses led by the Council. When we commented on that fact we were told by Mr Parham that she was upset by the whole dispute; and for that reason had declined to take any part in the present proceedings.

In accordance with their usual practice, a copy of the plan that the Council intended to attach to the conveyance in favour of Mrs Sloan was shown to Mr Higgins. He then, for the first time, became aware that if he were to apply to purchase the House (as he shortly afterwards did) he was unlikely to be offered all the ground that he believed he tenanted. His solicitor wrote to the Council about the question of the correct boundary line: but the matter was not resolved to Mr Higgins' satisfaction and the Council proceeded with the sale of 12 Livingstone Place to Mrs Sloan.

Some attempt was made on the applicant's behalf to show that the Council had, even in 1989 (when the plan used in connection with the sale of 10 Livingstone Place had been prepared), well known that the mutual boundary line shown thereon had been incorrect. And that it had, therefore, been perverse for the Council to choose to attach what was, in effect, a copy of that plan to the conveyance in favour of Mrs Sloan. It was Mr Higgins' belief that Mrs Sloan had at one stage approached the Council to have the boundary fence repaired. As we understand it, that belief was based on something that Mrs Barbour had related to him. And in the course of her evidence Mrs Barbour did say that she had indeed been told by Mrs Sloan that she had been in touch with the Council about repairing the fence after it had been blown down in a gale. It was Mrs Barbour's understanding that Mrs Sloan was then told by the Council that before the fence could be repaired it would have to be returned to its original position. And that when told that Mrs Sloan had, for that reason, cancelled her request for the Council to repair the fence.

This passage of evidence was unsatisfactory. It was vague. It was hearsay. And it seems to us that it would not, in any event, have assisted the applicant to establish what he claims to be the correct position of the mutual boundary unless the episode spoken to by Mrs Barbour occurred in the relatively short period of time between Mr McMeechan restoring the fence and Mrs Sloan once more, allegedly, moving it. Even then it would not have assisted the applicant unless the Council had (in that period) made a site inspection. Moreover, it strikes us as unlikely that the Council, as landlords, would have been prepared to lay out any money on repairing the fence or that Mrs Sloan should have thought they would, as Mrs Barbour seemed to imply. We therefore prefer Mr Smyth's evidence in this regard. He was able to confirm from his file that Mrs Sloan had, before she had purchased her house, been in touch with his office regarding repairs to the fence. It had been explained to her that, while the Council would be prepared to repair or renew the fence, the cost of doing so would have to be billed to Mrs Sloan and Mr Higgins. We therefore accept that the Council's decision to show the mutual boundary in the way it has been depicted in the plan attached to the conveyance in favour of Mrs Sloan was arrived at in the manner to which Messrs Smyth and Kearney attested.

A number of physical alterations have been made to the House and to 12 Livingstone Place since the date of the present application. Firstly, Mrs Sloan applied to the Council, as superiors, for their permission to lay monoblocks on the front and side areas of garden ground conveyed to her. In granting their permission, and being aware of the ongoing dispute as to the correct position of the mutual boundary between the House and 12 Livingstone Place, the Council required Mrs Sloan to restrict the paving work she was to carry out to the boundary line for which Mr Higgins contends. Mrs Sloan has had monoblocks laid in accordance with the permission so granted. The disputed land thus presents itself as a strip of bare earth.

Secondly, Mr Higgins has removed the remainder of the original paling fence at the side of the block of which the House forms part and laid a number of concrete slabs between the mutual boundary as shown on the plan attached to the conveyance in favour of Mrs Sloan and the access path leading to the rear gardens of the House and 10 Livingstone Place. He cannot park his car on those slabs except with the indulgence of the proprietor for the time being of 10 Livingstone Place: because his car would then encroach on the common access path.

Finally, within the two months prior to the hearing, Mrs Sloan has at her own expense removed the remnants of the original paling fence and erected a substantial timber fence on the alignment of the boundary shown on her title plan. As already noted, that fence is to the rear and does not extend to the public footpath.

None of these changes are of assistance in determining the issue of fact upon which the parties are in contention. They do, however, give some indication of the importance attached by Mr Higgins and (despite her refusal to take part in these proceedings) by Mrs Sloan to the outcome of that issue.

The applicant firstly seeks a finding in fact that the disputed ground was let to him. The submissions made to us on the parties' behalf in that regard were brief. The applicant relied on the evidence of his witnesses. In reply, the Council pointed to the consistency between the professional surveys carried out in 1989 and 1998. At each of those dates it had appeared to be the case that the tenant of 12 Livingstone Place was in possession of the disputed land; and hence, to comply with the terms of section 64(1)(a) of the Act, it had quite rightly been conveyed to Mrs Sloan when she had applied to purchase that house.

It was not suggested on the Council's behalf that if the applicant and Mr McMeechan had indeed come to the agreement they claimed to have made, then the effect of that agreement might have been to terminate the original lease to Mr Higgins; so that he would thereafter have become the tenant of a lesser area of land, namely that which they had offered to sell to him. But it would have been difficult for the Council to take that line. For the applicant admits that his agreement with Mr McMeechan was not intimated to the Council (and to that extent he can thus be said to be the architect of his present difficulties). In any event, section 46 of the Act provides that "a secure tenancy may not be brought to an end except" in the events therein specified. None of those events would appear to fit the circumstances of the present case.

Likewise it was not suggested on the Council's behalf that, as Mrs Sloan was in de facto occupation of the disputed land for much of the time she was tenant of 12 Livingstone Place, Mr Higgins could not (in terms of section 64(1)(a) of the Act) be said to have had the "full enjoyment and use" of that land as tenant of the House and could not, therefore, demand such use and enjoyment as owner. To the contrary, it appeared to be conceded by them that if the applicant's evidence were to be preferred to theirs then he would be entitled to the finding in fact he seeks.

In our opinion, the evidence strongly favours the conclusion that the disputed land was let to Mr Higgins; and was not let to Mrs Sloan. Mr Higgins, Mr McMeechan and Mrs Barbour all came across as honest and reliable witnesses. Their evidence of an informal agreement in terms of which the original fence was moved by approximately one metre by Mr McMeechan and, more importantly, was moved back by him to its original position before 12 Livingstone Place was re-let to Mrs Sloan was consistent and compelling. It was not shaken in cross-examination. To reject it would be tantamount to finding that all three witnesses had conspired to fabricate their evidence. The matter at issue is hardly of sufficient economic importance to encourage such an extreme course. And neither Mr McMeechan nor Mrs Barbour appears to have any axe to grind.

Whereas the applicant offered direct evidence as to what had been let to him the Council did not. Instead they relied wholly on the fact that the fence had been observed to be in the same position at particular dates in both 1989 and 1998. We accept that such was indeed the case. And it seems that it was that fact which led them to conclude that they should convey the disputed land to Mrs Sloan.

The Council accept that they do not have reliable records to show what, for the purposes of any lease they may grant, are to be the "official" boundaries between two adjoining properties. No plan defining the boundary here in question was provided when the House was let to Mr Higgins. In the absence of any such plan, the applicant's evidence (especially when it has been so convincingly corroborated by Mr McMeechan, who - unlike the Council's witnesses - was able to speak from first hand as to the true position at the outset of the lease) is to be preferred to that which the Council contributed. Likewise there is first hand evidence that what was let to, and first occupied by, Mrs Sloan did not include the disputed land. All that the Council are able to say is that they can find no internal record of the fence being in any other position than that which they observed in 1989 and 1998. However the observed position of the fence at those two dates is entirely consistent with the evidence given on the applicant's behalf.

We appreciate that the fact that the position of the fence appeared to be consistent over a period of some nine years must have given the Council some confidence when they came to their decision to convey the disputed land to Mrs Sloan. We likewise appreciate that it is impossible for the Council to notice for themselves any boundary alterations privately arranged by tenants inter se. However it was, very fairly, conceded by Mr Parham that there had been some evidence available to the Council in 1998 that the boundary fence had been altered. It is not clear from the evidence whether Mr Higgins mentioned his informal agreement with Mrs Sloan to Mr Smyth in the course of his site visit in 1998. Nor is it clear from Mr Smyth's evidence what, if anything, Mrs Sloan may then have said to him to tip the balance in her favour. However we have before us credible evidence that Mr Higgins came to an agreement with Mrs Sloan; one term of which was that the disputed land would be returned to him if and when he should decide to exercise his right to buy the House. Given that that is so it is difficult to resist the conclusion that Mrs Sloan must have suppressed that agreement when she met Mr Smyth on site. That may well be enough to explain Mrs Sloan's unwillingness to take part in the present proceedings; and so afford the applicant an opportunity to test by cross-examination anything that she might be able to contribute to the matter at hand. Moreover, the fact that the Council withheld their permission from Mrs Sloan to pave the disputed land suggests that they are now not entirely sure that they came to the right decision in that regard.

In all the circumstances the applicant is, in our opinion, entitled to the finding of fact he seeks. We are satisfied that the disputed land was let to him and was not let to Mrs Sloan. She did not occupy it as the Council's tenant. And the Council therefore, in our opinion, erred in conveying it to her.

It was, however, submitted on the Council's behalf that in the event we should find (as we do) that the contents of the offer to sell served by them on Mr Higgins do not conform with the requirements of section 64(1)(a) of the Act yet it would not be appropriate to go on to grant an order requiring them to serve on Mr Higgins an offer to sell to him, inter alia, the disputed land. Firstly, it was said, the tribunal had a discretion in the matter. Section 71(2)(b) provides only that the tribunal, having determined as a matter of fact that a public sector landlord has failed to serve an offer to sell which complies with the requirements of the Act, "may" then order that landlord to serve an offer in proper form. In the circumstances of the present case the tribunal should not, it was submitted, exercise its discretion in favour of Mr Higgins. Secondly, as Mrs Sloan had a registered title to the disputed land it was not, it was submitted, competent for the tribunal to order the Council to offer it to Mr Higgins. That proposition should be regarded as having been correctly decided by the tribunal in Brown-v-Scottish Homes 5 May 1994 (unreported). On behalf of the applicant it was submitted that, having regard to the decision subsequently reached by the House of Lords in Ross and Cromarty District Council v Patience 1997 SLT (HL) 463, the tribunal should not follow Brown-v-Scottish Homes; and should grant the order craved.

It is logical to consider first the issue of competency - whether we have a discretion not to grant the offer craved is a question that will arise only if we should decide it is competent to grant such an order. Brown v Scottish Homes is certainly in point. In that case the secure tenant contended that the offer she had received from her landlords did not comply with the Act: in that it did not include an area of drying green. As here, the landlords had already conveyed the drying green to another former tenant. They admitted, with the benefit of hindsight, that they had erred in so doing. But argued that as they had long since conveyed the drying green to someone else it was no longer in their power to sell it to the true tenant; and that they should not, therefore, be ordered to do so. In agreeing that that was so the tribunal referred to the following observations made by Lord McCluskey in delivering the decision of the Inner House in City of Glasgow District Council-v-Doyle 1993 SLT 604 (at page 610):-
"We have given some consideration to a possible situation that could arise, but which the respondents maintain has not arisen here. It could happen that when the local authority landlord came to make a statutory offer to sell to a particular tenant that it was, in law, incapable of offering to sell the whole subjects which had been let. Part of them might have been destroyed in some way or indeed part might have been conveyed in error to an adjacent tenant who declined to reconvey the part that should perhaps not have been conveyed to him. In such circumstances, we envisage that the local authority landlord might offer to sell the house let with its garden, etc, but append in clear, explicit and unambiguous terms a condition that the subjects to be conveyed were the subjects let less such part as it was not in their power to convey, specifying the part. On a strict view, this would not be an offer to convey the dwellinghouse as defined in section 82 [of the Tenants' Rights, Etc (Scotland) Act 1980]; but such a situation appears to be casus improvisus. In that situation, recognising that lex non cogit ad impossibilia, we consider that the machinery contained in section 2 of the [1980] Act might well be apt to enable the 'reasonableness' of such a condition to be assessed by the Lands Tribunal for Scotland."
And this passage was particularly relied on by the Council in their submissions to us.

Two points may be noted at this juncture. First, while the statutory provisions referred to in the foregoing passage from Doyle were later repealed, they were (in the 1987 Act) replaced by similar provisions. In so far as there are differences between the two statutory formulations, we accept that those differences would have been unlikely to cause the Court in Doyle to revise its views. Second, as the tribunal in Brown recognised, the passage quoted is, clearly, obiter.

In coming to the opinion it did in Brown the tribunal also placed some reliance on the decision of the Second Division in Ross and Cromarty District Council-v-Patience 1995 SLT 1292. The issue in that case differed from the issue with which we are concerned in the present case. It was whether a right of pre-emption reserved to a superior was elided when a tenant exercised his right to buy in terms of section 61 of the Act. By a majority the Second Division, affirming the Lord Ordinary, came to the view that it was not. The tribunal in Brown relied in particular on the following part of Lord Morison's opinion (at pages 1299/1300 of Patience):-

"The extent and nature of heritable property which can be transferred on a sale is exclusively governed by the heritable title of the person who owns it. A heritable proprietor is not in a position to sell anything beyond or different from that which is contained in his title. … Similarly, the 'offer to sell' which a landlord is obliged to make in terms of section 63(2) of the Act after service of an application to purchase, can only be understood as referring to an offer which the landlord is in a position to make as title holder in accordance with the provisions of his title. Section 61(2)(b), which makes it a condition of the tenant's right to purchase a house that the landlord is 'the heritable proprietor of the house', reflects the fact that the section is dealing with the landlord's ownership of the house only to the extent that his heritable title affords him that capacity."

And Mr Parham, in his submissions to us on behalf of the Council, again laid particular emphasis on this part of Lord Morison's opinion.

The decision of the Second Division in Patience conflicted with a number of cases previously decided by the tribunal. In Brown-v-Scottish Homes the tribunal made reference to one of those cases, namely Morrison v Stirling District Council 1987 SLT (Lands Tr.) 22. There the view taken by the tribunal had been that, although certain land pertaining to the house in question had been sold to a neighbouring tenant, the landlord must nevertheless include it in the offer to the applicant (Mr Morrison). Having so ordered, the tribunal in Morrison commented: "The Council may, by their actings [i.e. by having already conveyed away the land in question], have put themselves in some difficulty over implementing that offer. [The tribunal has], however, no jurisdiction to reduce or vary the terms of the Feu Disposition granted to the [neighbour] which if agreement cannot be reached can only be a matter for the Court." However, in the light of the foregoing extracts from Doyle and from Patience, the tribunal in Brown went out of its way to say, quite specifically, that the approach taken in Morrison and followed in other cases could no longer be regarded as correct.

Here, in effect, we are being asked by Mr Higgins to revert to the stance taken by the tribunal in a series of cases decided prior to Brown-v-Scottish Homes. That being so, it is, we think, appropriate to review those cases, beginning with Popescu v Banff and Buchan District Council 1987 SLT (Lands Tr.) 20.

In Popescu (which was decided very shortly before Morrison) the applicant objected to a condition which her landlord had included in the offer to sell to her the house she occupied as a secure tenant. That condition would have required her to accept that the title to be conveyed would be subject to a right of access over the back garden of her house in favour of a neighbouring property previously let, and then sold, by the same landlord to another tenant. The tribunal found, on the evidence, that no such right of access had existed when the house had been let to Mrs Popescu. Nor had the lease been subsequently altered. As tenant Mrs Popescu had thus had the exclusive right to the back garden. The Act therefore required that the same exclusive right be conveyed to her. As here, the District Council submitted that the tribunal could not order that the offer to sell be amended. For, it was said, such an order "would lead the council to committing an ultra vires act i.e. [it would require them to] convey something to Mrs Popescu which, by reason of the earlier conveyance to [the neighbouring former tenant] they were unable to do." However the tribunal decided that that was not the effect of their order. Rather the effect of that order was "to ensure that the eventual bargain for the sale of [the house let to Mrs Popescu would be to give her] a right to buy that which, in terms of … the Act, she is entitled to purchase." The tribunal went on to observe that: "The Council may, by their actings, have put themselves in some difficulty over implementing that bargain and, if they fail or refuse to do so, Mrs Popescu will have whatever legal remedies are available to her." (This passage, already familiar from Morrison (supra), can be found repeated like a mantra in many of the later cases we propose to review). The tribunal in Popescu accepted that they had no jurisdiction to reduce the Feu Disposition already granted to the neighbouring tenant "if indeed such a course is the appropriate way for the council to proceed as it may be if they are unwilling to negotiate a discharge of the offending access right."

In Brown v City of Glasgow District Council 18 January 1990 (unreported), the offer to sell excluded the use of a front path and restricted the use of the front part of the applicant's driveway. The tribunal found that the applicant (Miss Brown) had enjoyed the mutual use of the front path and exclusive use of the front part of the driveway for 50 years; and ordered that an offer reflecting these findings be issued. As in Popescu, that put the landlords in some difficulty: because they had already conveyed to a neighbouring tenant rights which were inconsistent with the order which the tribunal considered they were bound to make. The landlords' position was that they had no knowledge of the arrangement described by the applicant. They thought it must have been an informal arrangement inter tenants. When the conveyance in favour of the neighbouring tenant had been granted they had followed what, they said, was the usual pattern adopted by them for four in a block properties. They had had to cope with a number of administrative difficulties. Tenancy agreements did not always spell out the exact ground arrangements and over the years occupiers tended to make their own mutual arrangements, sometimes with and sometimes without the approval of the council. When the council's staff carried out their survey in connection with the prior sale the occupiers of the two houses had not been "available for comment." As 30% of offers made to tenants were not accepted the council's practice had been to delay the preparation of deed plans until an acceptance had been received. The plans were drawn to reflect what was seen on survey. No attempt was made to contact the parties. In view of the number of cases involved at the time that procedure would, they said, have been too cumbersome. The draft plan for the preceding sale had been sent to the neighbouring proprietor: but not, apparently, to Miss Brown. The "usual arrangement" would in all cases be adopted unless there was evidence that the council's housing department had consented to some different arrangement.

While the tribunal in that case evinced some sympathy with the "administrative problems" experienced by the council in connection with "Right to Buy" transactions, they also said that that only served to underline certain comments which had been made by the tribunal in Morrison, namely that "simple enquiry at the stage when the title plan was being prepared would surely have avoided the problem with which we are now faced." And, besides repeating the mantra first heard in Popescu, the tribunal in Brown v City of Glasgow District Council went on to comment that the order they were making did "not prevent the council negotiating a discharge of the offending access right" (a step which the council had already appeared to contemplate).

In Logie v Renfrew District Council 20 March 1991 (unreported), the council had, in a preceding disposition to a neighbouring tenant, conveyed away one half of the width of a driveway running between the two houses. It was conceded that the whole width of the driveway was needed to allow the applicants to manoeuvre cars in and out of their rear garage. They wanted to have the offer which had been made to them amended so that they would be offered a one half pro indiviso share of the whole length of the driveway; and submitted that the council should rectify the mistake made, they averred, when one half of the driveway had previously been conveyed away. As it was clear that the applicants had, as tenants, enjoyed a right of access over the whole driveway, the tribunal agreed that the offer should be in such terms as would entitle them to the same right as owners. It was recognised that this would require corrective action vis a vis the previously granted title; and thus that the landlords would require to seek the neighbours' co-operation. And the tribunal concluded its decision by repeating the mantra first coined in Popescu and Morrison.

The cases so far reviewed are similar to the present one in that the tribunal's finding in each case depended on section 64(1)(a) of the Act; and in that a break-off disposition inconsistent with that finding had already been granted. But there are also a number of cases decided prior to Brown-v-Scottish Homes in which the tribunal had occasion to consider the problem which was at the centre of Patience, namely the problem implicit in the fact that the landlords' title may in some way bear to prohibit the sale by them to their secure tenant.

The first such case was Naylor v Glasgow District Council 12 January 1983 (unreported). There the title of the house in question included a condition to the effect that the subjects conveyed to the local authority were "to be held by them as an open and unbuilt-on space for the benefit of the community." In the light of that condition it was suggested that it would be incompetent for the local authority to sell the house to Mr Naylor as a private house. The tribunal observed: "Part I of the 1980 Act in providing for compulsory sales of council houses, contains no equivalent provisions to those contained in the compulsory purchase legislation removing such restrictive conditions. The applicant's solicitor submitted that if his client's application was otherwise successful, the title restriction was simply a matter which would have to be sorted out. As presently advised, we think that this is so and do not consider that in this case the title conditions necessarily impede us from reaching a decision in Mr Naylor's favour if, in the end of the day, we should so decide."

The foregoing passage from Naylor is, clearly, obiter. (The case was decided on another ground, namely that the applicant had, on the facts of the matter, no "Right to Buy"). However this part of Naylor was referred to with approval by the tribunal in Walker v Strathclyde Regional Council 22 March 1989 (unreported). There the local authority's title reserved to the superior a right of reversion in the event that any part of the property should cease to be used for educational purposes. The regional council's written pleadings put forward the proposition that, assuming Miss Walker should be found entitled to purchase the schoolhouse let to her, they could not, standing the right of reversion, thereafter grant her a good title. It was therefore suggested by the council that, in the event of the tribunal finding that Miss Walker did have a right to buy, the tribunal should at the same time discharge the superior's right of reversion: thus clearing the way for a title to be granted. The council made no reference to this part of their pleadings in the course of the subsequent hearing: but the tribunal agreed with a submission made in reference thereto by Miss Walker's solicitor, namely that "the title position [is] irrelevant in an application under the Housing Act. [The Act] does not address the possibility that there may be title restrictions … which raise the question whether it was competent for the selling authority to grant a title in cases where a secure tenancy has been established and they are bound by the [Act] to sell the house in question. … It may be, in the end of the day, that where one is faced with title restrictions of this kind, an application could properly be made to the tribunal under section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970, but our jurisdiction under that Act is quite different from our jurisdiction under the 1987 Act and we have no doubt that we are unable to consider variations of land obligations when dealing with an application under the latter. Equally, as presently advised, and as the tribunal have already indicated in Naylor, we are of the view that the existence of such a title condition does not necessarily impede us from reaching a decision in favour of an applicant seeking to purchase his or her house under the 1987 Act …"

To this we would add that (1) Parliament would no doubt have been mindful that the tribunal had powers under the 1970 Act to vary or discharge title conditions which might, on the face of it, stand in the way of a statutory sale when it awarded the tribunal the further jurisdiction under which the present proceedings arise; and (2) the 1970 Act empowers the tribunal in an application made under section 1 thereof to award compensation (in certain circumstances) to the party who is in benefit of the sort of title condition here in contemplation.

An example of a case in which the tribunal did, in the exercise of its jurisdiction under section 1 of the 1970 Act, discharge a land obligation in order that a sale to a secure tenant could proceed is to be found in Strathclyde Regional Council v Barcaldine School Board and Others 23 September 1992 (unreported). In that case land had been feued to the education authority so that they might build on it a school and a teacher's house. The feuing conditions specifically prohibited any other use. The head teacher to whom the school house had been let (a Miss MacDonald) applied to buy it in exercise of the right accorded to secure tenants by the Act. The regional council, as statutory successors to the original feuars, had come to the view that there was no valid ground for refusing her application: but were faced with the "difficulty" of which the foregoing cases speak, namely that to give Miss MacDonald a good title to the house it would be necessary for them to obtain either a waiver or a discharge of the relevant feuing condition. The individual who had, it seemed, inherited the superior's estate was not prepared to meet the cost of making up a title to the superiority. He had indicated he would have wished to maintain the existing title restriction and would not, therefore, have granted a waiver: but lacking any formal title decided not to oppose the application to the tribunal. However a number of potentially affected proprietors did. They feared that the ending of the restriction on use and the sale to Miss MacDonald were part of a plan to close the local school and to transfer its pupils to one some distance away. They considered that the education authority should not have conceded that Miss MacDonald had a right to buy the school house under the Act. The tribunal, however, took the view that that was a matter for the education authority alone to decide; and (although the tribunal had no power to review such a decision) set forth its reasons for believing that the grounds upon which it had been suggested by the objectors that the tenancy was not secure were invalid. More importantly for present purposes, the tribunal in deciding to vary the feuing condition under section 1(3)(a) of the 1970 Act said this: "… the only change founded on by the council is an alleged change in [circumstances, namely the enactment (subsequent to the imposition of the title restriction)] of the legislation which has given the tenant a statutory right to buy the house and has imposed on the council a statutory duty to provide her with a clear title. … The introduction of [that] legislation can … reasonably be regarded as a change in circumstances which are material to the obligation. If the tenant has a statutory right to buy the schoolhouse, as [we] are satisfied that she has, and if she wishes to buy it, as she does, it would be unreasonable and inappropriate … that the council should be prevented by the obligation from giving her a good title, as it is their statutory duty to do."

The Barcaldine School Board case does not, however, sit easily with the earlier case of Banff and Buchan Distict Council v Earl of Seafield's Estate 1988 SLT (Lands Tr.) 21. There the council had applied to the tribunal under section 1 of the 1970 Act for the discharge of inter alia a right of pre-emption in favour of the superior affecting an area of land on which a number of local authority houses had been erected. That application was refused in so far as it had been made under section 1(3)(c) of the 1970 Act because, it was held, the pre-emption did not impede some reasonable use. The tribunal reasoned that a sale could not be regarded as a "use." The application was also refused in so far as it had been made under section 1(3)(b) of the 1970 Act because, it was held, a pre-emption could not be regarded as "unduly burdensome." That was on the view that, as Parliament had, only a short time prior to the application, clarified the statutory provisions relating to rights of pre-emption, it was clear that the legislature did not consider such rights to be unduly burdensome.

The reason which had led Banff and Buchan District Council to make their application was that if their tenants were to apply to them to buy their houses they might, standing the provisions of the Tenant's Rights legislation, have no option but to sell those houses. The tribunal observed that the legislature "has imposed on each housing authority a statutory obligation to sell to a secure tenant … but without regard to the fact that title conditions may impose a barrier to any such sale. We are not certain in fact whether pre-emptive provisions in the feu charter actually impose such a barrier … But the council's solicitor, without presenting any detailed argument, indicated that in his view there were at least doubts. Even if the [right of pre-emption], in the context of council house sales, [does] cause problems, we cannot accept that this is reason enough simply to discharge the [pre-emption] under paragraph (b) [of section 3(1) of the 1970 Act], for that would deny the superior any benefit on any sale whatever. The estate factor confirmed, however, that the estate were not at all concerned with sales under the [Act] and indeed had granted a blanket waiver to [the council's predecessors as housing authority] to solve any such problems." And, in the light of that explanation from the estate factor as to the estate's attitude, the tribunal decided that it would be appropriate to vary the right of pre-emption: to the effect that it would not apply "where the tenant or occupier of any dwelling-houses … erected on the feu have a statutory right to acquire the same."

In MacDonald v Strathclyde Regional Council 1 March 1889 (unreported), the landlords submitted inter alia that it was impossible for them to sell the school house occupied by the tenant because the land on which it had been built had been gifted to their predecessors in title on condition that it be used only for the erection of a school and residence for a teacher. The tribunal pointed out that there was no evidence that the superiors would insist upon that condition. Indeed the landlords had admitted that in similar circumstances in other cases the superiors had been prepared to waive their right. And so, the tribunal said, " … for all that has been disclosed [in evidence, the superiors] might have no objection to the sale. If the tribunal find that a tenant has a right to purchase, then in general it is for the landlord to make that right effectual by obtaining any necessary consents. … If [a waiver] is refused [by the superiors], then an application for the discharge or variation of the restriction can always be made to the tribunal under section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970."

In Henderson v City of Glasgow District Council 1 May 1991 (unreported) the land on which the tenant's house had been built had been gifted to the landlords' predecessors in title subject to a right of reversion in favour of the superior (i.e. a provision that it should not be in the power of the local authority to sell any part of the feu until it should first be offered to the superior at a nil consideration). The landlords made it clear that they were not relying on this as a ground of their refusal to sell the house to the tenant. But it had been indicated by the superior that he was likely to exercise his right of reversion. And the tribunal acknowledged that its decision that the tenant did indeed have a right to buy "does leave the council with this difficulty. The Act however in imposing compulsory sales on local authorities ignores the fact that there may be title problems which have to be overcome. If in considering an application [to buy] under the Act we find in favour of the applicant we cannot then alter our decision because we know that the selling authority cannot readily implement our order without the co-operation of a third party."

Following the determination of Mr Henderson's application under section 68(4) of the Act, he again applied to the tribunal - this time for a finding in terms of section 71(2)(a) of the Act that the landlords, having been duly served with an application to purchase the house in terms of section 63(1), had failed in terms of section 71(1)(c) to issue timeously an offer to sell. In these circumstances the tribunal directed their clerk to issue such notices and undertake such other steps as might be required to complete the procedure provided for in section 63 of the Act except for the service of an offer to sell; and thereafter to make a report to the tribunal before finally issuing such an offer. The District Council then wrote to Mr Henderson indicating their preparedness to sell the house and enclosing an offer to sell. However that offer sought to introduce into the contract of sale to be concluded between the landlords and their tenant a condition reflecting the superior's right of reversion. Mr Henderson thereupon intimated to the tribunal his dissatisfaction with that term of the offer; and the tribunal, having considered their clerk's report, went on (in terms of section 71(2)(b) of the Act) to serve on Mr Henderson an offer to sell not subject to the condition to which Mr Henderson had objected. The District Council appealed to the Court of Session on the grounds that the tribunal had erred in law et separatim had acted unreasonably et separatim had failed to take into account a material consideration in failing to include in the offer to sell a condition which would have enabled the landlords to fulfil the obligations incumbent upon them in terms of the right of reversion. The arguments deployed on the council's behalf are recorded at length in the decision of the Inner House issued on 15 January 1997 (unreported) and will be familiar to anyone who has read the reports of the successive stages of Patience. The Inner House decided that, in the circumstances described, the tribunal could not be criticised for following through the procedure it had adopted; and the appeal was refused. That decision was not, so far as we can ascertain, referred to in the arguments adduced before any of the courts which were, successively, called upon to consider Patience.

Before turning to consider the effect of the decision reached (subsequent to the decision of the tribunal in Brown v Scottish Homes) by the House of Lords in Patience, it should be noted that of the tribunal cases reviewed above Naylor, Banff and Buchan District Council v Earl of Seafield's Estate, MacDonald and Walker were all cited to the Second Division in Patience. The two judges who were there in the majority found them to be of no assistance. The Lord Justice Clerk (Ross) for example said: "Although there were some observations in these cases suggesting that a condition to the effect that the sale was subject to a right of pre-emption or the obtaining of a waiver, the question was not really addressed in these cases, and nothing which is said in these decisions causes me to alter the view which I have already expressed [namely that section 61 of the Act could not be construed so as to deprive the superior of his right of pre-emption; and accordingly the tenant was excluded from qualifying under section 61]." On the other hand Lord Murray (dissenting), in commenting on the tribunal cases cited to the Court, said: "The Lands Tribunal had consistently held that a right of pre-emption did not elide a tenant's right to purchase, but because of their restricted jurisdiction in the matter they had been unable to pursue the full consequences of their decision in principle, apart from making pragmatic suggestions."

It respectfully seems to us that Lord Murray's summary of the cases cited to him is, though concise, accurate. It also seems to us that the further cases reviewed above show that, prior to its decision in Brown v Scottish Homes, the tribunal had been consistent in its view that neither a right of pre-emption nor a right of reversion nor even a prior conveyance granted by a housing authority in breach of its obligation to convey to a secure tenant precisely that which had been let to him elided such a tenant's right to buy. It is certainly clear that, Brown v Scottish Homes apart, the tribunal had always been willing in such circumstances to make an order of the kind that Mr Higgins here seeks, if the facts of the matter appeared to warrant it.

However, the Council would have us say that Brown v Scottish Homes was correctly decided; and that the decision of the House of Lords in Patience does not contradict it. It may be true that Patience is not directly in point inasmuch as it relates to a particular right of pre-emption contained in the title of a particular housing authority. But it appears to us that Lord Clyde in delivering the decision of the House in Patience was quite consciously and deliberately looking to lay down principles of far wider application than that.

That is, in our opinion, immediately clear from the mere fact that the House of Lords were persuaded to take on board the housing authority's appeal in Patience. For, after their success in the Second Division, the superiors had granted a gratuitous waiver of their rights to the house occupied by the secure tenant, thereby removing the particular cause of dispute in the case. The housing authority nevertheless persisted in their appeal. And the House of Lords had, therefore, to determine as a preliminary point whether the appeal was competent. In that regard it was, as Lord Clyde puts it, "evident that although [the] issue between the appellants and the [superiors] was no longer live in respect of the particular tenancy …, there remained a live and real problem in relation to other houses let on secure tenancies by the appellants which lie within lands which may be affected by such a clause of pre-emption as existed in the present case. Moreover the problem of the apparent conflict between such a pre-emption clause and the right to acquire given by statute to a secure tenant is a point of practical importance to local authorities in Scotland and requires resolution. This House determined that the appeal was competent and, since the [superiors] then decided not to argue the case before this House …, an amicus curiae was appointed by the Lord Advocate to secure a balanced presentation of the argument."

It is, of course, clear (as Lord Clyde's speech in the House of Lords points out) that the question which had to be decided in Patience was "whether this clause [i.e. a clause reserving to the superiors a right of pre-emption in the precise terms narrated in the appeal] applies to the process which Parliament has provided under the [Act] for the acquisition of his dwellinghouse by a secure tenant." And in part the reasoning underlying the House of Lords' decision in Patience can be said to rely upon the construction placed by their Lordships on the terms of that particular clause of pre-emption. It was, for example, pointed out that it was proper to construe the deed in which that clause appeared as at the date on which it had been granted. So construing that deed, it was "inconceivable that at that date the parties could have contemplated that council tenants would be given a statutory right to acquire their homes and that the public sector landlord would be obliged to sell … their houses to them." Moreover, as Lord Clyde also points out, the Act gives a secure tenant a right to "purchase" and obliges the landlord to "sell." It follows that "the statutory purchase which is achieved by the procedure [laid down in the Act] is not a consensual sale." However, as the clause of pre-emption which figured in Patience required that the feuars should not "sell or dispone the feu" and as those words must be taken to connote a "consensual sale" and a "voluntary conveyance" it could not have been "the intention of the parties [to the particular deed] that the feudal grant could be annulled [by virtue of the irritant clauses therein] by a sale of the subjects in question which the landlord was bound under statute to carry out."

This latter argument at least would seem to apply to most, if indeed not all, conventional rights of pre-emption. And it is clear that the decision of the House of Lords in Patience is intended to apply far beyond the particular clause of pre-emption which figured in that case. For having dealt with the construction of that clause Lord Clyde turned next "to the question which occupied the greater part of the hearing. That is whether on a proper construction of the provisions of the [Act] the secure tenant can exercise his right to purchase his dwellinghouse regardless of a right of pre-emption in the title of the landlord. [As had been recognised by the Lord Ordinary in Patience, that] involves a stark choice between holding on the one hand that all rights inconsistent with the right to purchase [our emphasis] are superseded by the legislation, and on the other hand that the legislation may only operate when no such rights exist."

Lord Clyde noted a suggestion made by the amicus curiae that there might be imposed in the landlord's offer to sell to the secure tenant a condition "reflecting the qualification on the landlord's title." But that suggestion (which is consistent with the obiter dictum of Lord McCluskey in Doyle quoted above) did not find favour with Lord Clyde. It had already been dismissed by the Second Division in Patience: because, as the Lord Justice Clerk had there pointed out, the conditions of sale under section 64 of the Act must be conditions consistent with the sale taking place. In approving the Second Division's reasoning on this particular matter and in dealing with another line of argument introduced by the amicus curiae (based upon section 81A of the Act) Lord Clyde added that: "The necessity to obtain the consents required under the statutory scheme [as for example under section 81A] is part of the whole statutory process and the acquisition is necessarily dependent on such consents being obtained. [But] the necessity to obtain the consent of a third party outwith the statutory scheme remains outside the scope of section 64 [i.e. the section dealing with 'conditions of sale' and requiring, as the Lord Justice Clerk had put it, that such conditions must be conditions consistent with the sale taking place]. … The matter accordingly comes to be one of making the stark choice which the Lord Ordinary identified."

Having, with the assistance of counsel, carefully reviewed the Act and its predecessor Acts, Lord Clyde (at page 466) then said: "… the clear purpose of Parliament in this legislation was that every tenant in the public sector who fell within the scope of the particular requirements specified by Parliament should have an unobstructed [our emphasis] right to purchase the house he occupies and become the owner of it. I am satisfied that to that end [our emphasis] it was intended that a tenant's right to buy was not to be impeded by a third party's right of pre-emption." The last sentence of this part of Lord Clyde's speech is, of course, addressed to the case of a right of pre-emption: because that was, in Patience, the particular matter at issue. However it is, in our opinion, abundantly clear (from the context and from the words which we have, above, emphasised) that the case of a right of pre-emption has been dealt with by Lord Clyde as but one facet of the principle underlying the Act. As he puts it later in his speech: "…the general intention [of the Act is] that the tenant's right is to prevail over any impediment." In short, it is evident to us that Lord Clyde (and the four other Law Lords who agreed with him) faced up squarely to the "stark choice" identified by the Lord Ordinary. And having done so must, therefore, be taken to have accepted, as a matter of principle, that all rights inconsistent with a secure tenant's right to purchase fall to be regarded as having been superseded by the provisions of the Act. That being so, we think there must be considerable doubt as to whether the tribunal in Brown-v-Scottish Homes would have arrived at the decision it did if it had had before it the decision of the House of Lords, rather than that of the Second Division, in Patience. For it is plain that the tribunal in Brown-v-Scottish Homes were influenced by the Second Division's decision; and, in particular, by the remarks there made by Lord Morison as quoted above.

Mr Higgins' solicitor, in the course of her submissions to us, laid some emphasis on the introductory words of section 61(1), videlicet "Notwithstanding anything contained in any agreement, [a secure tenant shall have a right to buy his house at a discount]." As we understand that submission, it was to the effect that those words were wide enough to encompass the agreement reached between the Council and Mrs Sloan, as a result of which the disputed land had come to be conveyed as part of the house at 12 Livingstone Place. And, in the light of the decision of the House of Lords in Patience, the tribunal could safely ignore that agreement; and so order that the offer to sell to Mr Higgins should be amended to include the disputed land.

In answer to this submission, the Council's solicitor contended firstly that the purpose of the opening words of section 61(1) was simply to prevent the landlord from coming to an agreement with the secure tenant whereby the tenant renounced his statutory right to buy. That proposition is certainly in accord with the dictum of Lord Keith at pp 20-21 of Cooper's Executors v City of Edinburgh District Council 1991 SC (HL) 5 where he said: "Despite the apparent width of these words [i.e. the opening words of section 61(1)], they must, I think, be construed as relating to agreements between the landlord and the tenant who would otherwise have the right to purchase. The object is to prevent landlord and tenant contracting out of the right to purchase." It does not, however, accord with what Lord Clyde says in Patience regarding the interpretation of this part of section 61(1). As he (agreeing in this regard with the opinion expressed by Lord Ross when the Second Division ruled on Patience) points out, Lord Keith's observation was not intended as a statement of general principle. For Cooper's Executors related to an agreement between the landlord and the deceased tenant (Mr Cooper); and that explains why Lord Keith's observation was framed under reference to the landlord and the tenant. Specifically Lord Clyde in Patience says "… [it] seems to me that the significance of the observation lies in the reference to the substance [our emphasis] of the agreement rather than the parties to it. The substance of the agreements referred to in section 61(1) is the obviation of the right to purchase. That the parties to the agreement may be others than simply the landlord and the tenant may be seen in the example which [Lord Keith] gives to show the error in the argument presented on behalf of the council [in Cooper's Executors] where he refers to an agreement to sell to the tenant or to members of his family under section 14(1) of the [Act]. Moreover comparison with corresponding phrases in other sections of the Act confirms to my mind that while, as [Lord Keith] observed, the substance of the agreement must be one which strikes at the statutory right to purchase, the agreement need not involve both the landlord and the tenant."

In the present case, the agreement to which the applicant's solicitor has directed us is, in our opinion, just such an agreement. It is not an agreement between landlord and tenant: but that, in the light of the foregoing remarks of Lord Clyde, does not matter. The substance - or, at least, the effect - of the agreement between the Council and Mrs Sloan as a result of which the disputed land came to be conveyed to her as part of the house at 12 Livingstone Place is to impede the sale of that land to Mr Higgins. And it is implicit in what we have already said that, in our view, Mrs Sloan intended that the effect of her agreement with the Council should be to defeat what she well knew to be Mr Higgins' right to purchase inter alia the disputed land.

However the applicant may not be helped in this case by his reference to the agreement between the Council and Mrs Sloan. For that agreement has, on the face of it, been superseded by the disposition subsequently granted in implement thereof; as a result of which Mrs Sloan is presently shown in the Land Register to be the registered proprietor of the disputed land. And it was, secondly, contended by Mr Parham that it was primarily this factor which put it beyond the power of the tribunal to order the Council to offer to convey the disputed land to Mr Higgins. As had been pointed out by Lord Morison in Patience, by reason of section 61(2)(b) the secure tenant's right to purchase applied only to a house let under a secure tenancy where the landlord was the "heritable proprietor." Here the Council had formerly been the heritable proprietor of the House and of the disputed land. But it was no longer the heritable proprietor of the disputed land. And the tribunal had, therefore, been right to say in Brown v Scottish Homes that as the landlord had ceased to be heritable proprietor of the land there in dispute the right to purchase could not apply because the landlord was no longer within section 61(2)(b). The decision of the House of Lords in Patience did not lessen the authority of Brown v Scottish Homes: because Patience related only to rights of pre-emption.

It will be evident from what we have already said in relation to Patience that we do not accept that the principle underlying the House of Lords' decision does not apply to anything other than a right of pre-emption. To the contrary, that principle - namely that "all rights inconsistent with [a secure tenant's] right to purchase are superseded" by the Act - was stated in what are, in our opinion, deliberately wide terms.

However, the Council invite us ignore what was said by Lord Clyde in Patience; and rely on certain remarks made by Lord Morison in the court below. The particular remarks we were referred to were those set out at page 15 above. For completeness we should perhaps record that those remarks were immediately preceded by Lord Morison with the following passage:-

"In my opinion this argument [that the Act overrides a right of pre-emption] ignores the system of land tenure regulating the purchase and sale of heritable property in Scotland. It must be assumed that the legislature had this system in mind when enacting the provisions in the terms in which they did and in particular in expressing the transaction between landlord and tenant as one of sale by the landlord as heritable proprietor of the house."

This passage is, however, in our opinion, already undermined by the House of Lords' analysis that the Act sets out a procedure whereby the statutory purchase achieved is not an ordinary - or consensual - sale. And it seems to us that Lord Morison's opinion is utterly irreconcilable with that of the House of Lords. Indeed Lord Morison's position regarding the import of the term "heritable proprietor" is explicitly referred to by Lord Clyde at page 468 of Patience and responded to in the following terms:-

"Some weight was attached by the majority of the judges in the Second Division to the consideration that the landlord was in terms 'the heritable proprietor.' The argument then runs that since the statute recognised that the landlord was holding property under a feudal title the statute should be understood as intending that the obligation and the conditions in the feu rights should be preserved. Certainly the identification of the heritable proprietor is an element in the qualifications relating to the landlord in section 61(2). [As Lord Clyde had earlier pointed out: 'The qualification for a secure tenancy depends, inter alia, on the identity of the landlord. The landlord must be one of the [public sector] bodies mentioned and referred to in section 44(2) of the [Act]']. But this identification of [the landlord's] status does not in my view operate to import the necessary preservation of a right of pre-emption contained in the feudal title. So also in the later sections 76, 77 and 84A it does not seem that Parliament is concerned with the quality of content of the title but only with the status of the titleholder.

I find it difficult to believe that Parliament would have intended that the provisions carefully made to secure to the tenant the right to purchase and the restraints of disposal by the public sector landlord could all be overcome by a superior's right of pre-emption."

While that conclusion is, naturally in the circumstances of Patience, directed to a title containing a pre-emption, it seems to us to be a natural and reasonable extension of the same line of reasoning to say that once the landlord's status has been identified then the landlord is bound by the provisions of the Act. And therefore that, in the present case, once it has been ascertained that the Council are one of the public sector bodies mentioned and referred to in section 44(2) of the Act and are the heritable proprietors of the House, then it follows that they are bound by inter alia section 64(1)(a) of the Act; and so bound to offer Mr Higgins a title which includes all that was let to him. That is, in our opinion, consistent with what Lord Clyde identified as the clear purpose of the Act, namely "that every tenant in the public sector who falls within the scope of the particular requirements specified by Parliament should have an unobstructed right to purchase the house he occupies and become the owner of it."

Consistently with the same line of reasoning, it is not, in our opinion, to be supposed that a landlord who is obliged by the Act to sell a house can escape his obligation to sell the whole of what was included in the lease to a secure tenant by contracting to sell it, or some part of it, to a third party. We refer in that connection to the following further passage in Lord Clyde's speech (at page 466):-

"It is evident that a sale to someone in the private sector would, in the absence of any express provision, otherwise extinguish the security of the tenure. … But section 46 of the Act, which lists the only ways in which a secure tenancy can be brought to an end, does not include a unilateral disposal to a third party by the landlord without the agreement of the tenant, and the tenant would not be expected to give such consent since he is seeking to acquire the house for himself. Under section 81A, provision is made for the preservation of the right to purchase despite a sale to a private sector landlord. But here, by virtue of para. 5 of Schedule 6A, the consent of a majority of the tenants is required for the disposal to proceed. That a minority may lose the benefit of the secure tenancy does not in my view detract from the general proposition that the landlord cannot unilaterally dispose of the property …".

It does not, we think, detract from the generality of this statement that it refers to "the property" rather than to what we have in the present case, namely part only of the property let to Mr Higgins. Applying that statement here, it was not, in our opinion, in the power of the Council to convey the disputed land to Mrs Sloan without Mr Higgins' consent. And if that is so then Mr Higgins may not (as we shall point out later in this opinion) be without a remedy, despite the fact that the Council are no longer heritable proprietors of the disputed land.

The Council also seek to rely on the observations made by Lord McCluskey in Doyle, as recorded at page 14 above. We have already pointed out that those comments were obiter; and have expressed our doubts as to whether the tribunal in Brown-v-Scottish Homes would have arrived at the decision it did if it had had before it the decision of the House of Lords in Patience. It should perhaps also be pointed out that Lord McCluskey concludes his remarks by acknowledging that there is machinery in the Act whereby an aggrieved tenant can ask the tribunal to assess the "reasonableness" of a condition in an offer to sell such as that which the Council are, in effect, proposing in this case - namely a condition reflecting the fact that they have already sold off part of the subjects originally let to Mr Higgins. (In that connection it may be noted that Lord Morison in Patience agreed with the Lord Ordinary that the obiter in Doyle was incorrect. The condition suggested there would, he said, "not be a competent condition.")

In our view, Lord McCluskey's reliance on the brocard lex non cogit ad impossibilia is less than persuasive. In the commercial world parties can and do contract to buy and sell that which the seller does not immediately own. The seller simply takes the chance that he will be able to buy what he contracts to sell; and will be able to perform on the due date. Here, especially in the light of the principled decision reached by the House of Lords in Patience, we believe that the preferable view is that the Act imposes on the landlord a clear obligation to sell a defined quantity (videlicet, all that has been let to the secure tenant who seeks now to exercise his right to buy). Indeed Lord McCluskey in Doyle, by his use of the words "On a strict view," recognises that that is so. And if that be correct then, in our opinion, the Act must be acknowledged to impose on the landlord a reciprocal obligation not to sell any part of what has been let to the secure tenant to any third party. That view is implicit in what the tribunal has previously said in e.g. Morrison (supra) and Brown v City of Glasgow District Council (supra) about the need for the landlord to make enquiry when a title plan is being prepared. Moreover it is, we think, clear that the Council themselves well understand and subscribe to this reading of the Act. For they have in place a procedure that is intended to avoid land at the margins of one let being sold accidentally to the wrong tenant. The administrative difficulties in giving effect to our reading of the Act have been well rehearsed in previous cases. And essentially all that appears to have happened is that, in this particular case, the Council have failed to carry out their own procedures with sufficient rigour. Instead they chose to accept Mrs Sloan's version of events; and failed to draw out the evidence that Mr Higgins was readily able to produce to this tribunal.

Lord McCluskey's dictum in Doyle includes the suggestion that the theoretical situation he there posed (which is the actual situation in the present case) was casus improvisus. But it would not be necessary to make any special provision for it in the Act if it was a situation to which the general law provided an answer. And it appears to us that Lord McCluskey's dictum ignores what is sometimes referred to as "the rule against offside goals." As summarised in the Stair Memorial Encyclopaedia Volume 18 para. 695 (at page 695) that rule is to the following effect: " … a real right granted in breach of a pre-existing contract or other obligation is voidable at the instance of the creditor in that obligation if the grantee knew of the obligation or if the grant was not for value. [The second case posited - that of the grant not being for value - is not relevant in the present case and is not, therefore, further considered in what follows.] In the metaphor employed by Lord Justice-Clerk Thomson in Rodger (Builders) Limited v. Fawdry 1950 SC 483 at 501, the 'goal' (the real right of the grantee) is 'offside' (voidable at the instance of the creditor in the obligation) [although soccer purists would, no doubt, point out that an offside goal is void, not voidable]. This is an exception to the usual rule that a purchaser or other grantee takes property free from the personal obligations of his author (Stair Institutions I, 14, 5)."

As para. 695 (op. cit.) goes on to say: "The paradigm example of [the] operation [of the rule against offside goals] is in cases of double sale. Thus Lord Kinloch in Morrison v. Somerville (1860) 22D 1082 at 1089:

'[It has] been long firmly settled in the Law of Scotland, that, wherever an individual becomes bound to sell to one party, and another, in the knowledge of that obligation, takes a second right, this second right is ineffectual and reducible in a question with the first purchaser. The principle is an obvious and equitable one. In granting a second right, the seller is guilty of fraud on the first purchaser. Against the seller himself the transaction would be clearly reducible. But, in taking the second right in the knowledge of the first, the second disponee becomes an accomplice in the fraud, and the transaction is reducible against both alike. … '

… From its origins as an equitable solution to the problem created by double grants of the same right, the offside goals rule has gradually been extended both in scope and in importance. … Legal analysis has not always managed to keep pace with these changes, and if the law itself may now be stated with reasonable confidence, there is less confidence about the reasons for the law and the principles underlying it. The early authorities usually attributed the offside goals rule to fraud. The granter had defrauded some third party and the grantee, through his knowledge of the fraud, had become a participant with the result that the fraud was pleadable against him. The dictum by Lord Kinloch quoted earlier is an example of this view. Sometimes too the offside goals rule was seen, not perhaps very convincingly, as a development of the law of personal bar. Later authorities, however, are more reticent, and the major changes effected by the Trade Development Bank cases [i.e. Trade Development Bank v Warriner and Mason (Scotland) Ltd 1980 SC 74; Trade Development Bank v David W Haig (Bellshill Ltd 1983 SLT 510; and Trade Development Bank v Crittall Windows Ltd 1983 SLT 510] have been introduced almost without explanation. Any attempt to identify a principle capable of explaining all the different manifestations of the rule is to some degree hazardous, but it is thought that the original analysis based on 'fraud' remains correct, provided that 'fraud' is not confined to its narrow modern meaning (see e.g. Petrie v. Forsyth (1874) 2 R 214 at 223 per Lord Gifford). In current legal language the principle is expressed more accurately by saying that what is required is the breach by the granter of an antecedent obligation which was binding upon him. Thus the situation envisaged is that a granter undertakes, expressly or by implication, that he will not make a particular grant; nonetheless he makes the grant; and the grantee, … knowing of the obligation …, is affected by it. It is thought that this analysis is sufficient to explain all the examples of the offside goals rule which are currently recognised, and that it is likely to control and determine the future development of the rule.

In order for the rule against offside goals to operate it appears that all of the following must be shown, namely:

  1. that there was an antecedent contract or other obligation affecting the granter;
  2. that the grant was in breach of a term, express or implied, of that obligation; and
  3. … that the grantee knew of the antecedent obligation prior to the completion of his own right …"

At para. 696 (op. cit.) it is noted that: "The granter must be subject to a pre-existing obligation not to make the grant. The source of the obligation is unimportant …" At para 698 (op. cit.) it is further noted that: "The rule … is not confined to the case of double grants but applies more generally wherever a grant is made in the face of an obligation prohibiting its making." Amongst the categories of cases where the rule has been recognised as applying are, as para. 698 goes on to instance, rights of pre-emption and options to purchase. In regard thereto it is noted that: "It has been held that if the current owner sells without regard to the right of pre-emption, the title of the purchaser is voidable at the instance of the creditor in the right (see e.g. Matheson v. Tinney 1989 SLT 535 etcetera). … It may be taken that the rule is the same in the case of options to purchase (Davidson v Zani 1992 SCLR 1001)."

The rule against offside goals necessarily involves some element of bad faith on the part of the grantee if his title is to be successfully attacked. At para. 699 (op. cit.) it is noted that: " … Stair required of the grantee 'certain knowledge, by intimation, citation, or the like, inducing malam fidem, whereby any prior disposition or assignation made to another party is certainly known'. It is thought that this is still the law and that a grantee is in bad faith only where he has clear knowledge, at least in general terms, of the antecedent prohibition of the grant. In the case of heritable property however, a grantee is deemed to know the contents of relevant deeds or entries in the Sasine or Land Register (Trade Development Bank v Warriner and Mason (Scotland) Limited (supra)). Once a party knows of an antecedent prohibition, he is not entitled to assume without enquiry that it is no longer in force nor is he entitled to rely on the assurances of the granter (Lang v Dixon 29 June 1813 FC; Rodger (Builders) Limited v Fawdry (supra); Trade Development Bank v Warriner and Mason (Scotland) Limited (supra))."

There appears to be ample room for the rule against offside goals to operate in the circumstances of the present case. The first requirement outlined above is that there be an antecedent contract or other obligation affecting the granter (that is, here, the Council). In our opinion, based on the ruling of the House of Lords in Patience, the effect of the Act taken as a whole, and sections 61 and 64(1)(a) of the Act in particular, is that the Council came under an obligation to sell the House (and, with it, the disputed land) to Mr Higgins from the moment they let it to him as a secure tenant, provided only that he should at some future date apply to purchase it. From that it must, we think, follow that the Council came under a corresponding obligation not to sell the House (including, on the basis of our finding that it is part of the House, the disputed land) to anyone else. This is consistent with Lord Clyde's insistence, in Patience, that the secure tenant's right to buy must be "unimpeded" and, indeed, with the whole tenor of the House of Lords' decision in Patience emphasising as it does the primacy of the secure tenant's right to buy. On the basis of the passages from the Stair Memorial Encyclopaedia quoted above, it is not necessary to impute any fraud to the Council in order that the rule against offside goals may apply - and we are, of course, satisfied that there has been no fraud on the part of the Council in this case. But the granting by the Council of a disposition in favour of Mrs Sloan that included the disputed land amounted to a breach of the obligations imposed by the Act on them. And accordingly the second requirement for the application of the rule against offside goals appears to have been met. As for the third requirement of that rule, namely that the grantee (that is, here, Mrs Sloan) knew of the antecedent obligation prior to the completion of her own right, it can hardly sit in the mouth of the grantee to deny that the Act imposes certain obligations on the Council vis a vis properties let to their secure tenants when she herself has benefited from the self-same obligations. And, on the basis of the evidence presented to us in the present case, it is (as we have already put it) difficult to resist the conclusion that she suppressed the agreement she had evidently come to with Mr Higgins regarding the disputed land when she met Mr Smyth on site; and so caused him to come to the conclusion that the disputed land should be conveyed to her.

It does not, in our opinion, assist the Council in any way that their decision to convey the disputed land to Mrs Sloan was innocently arrived at. It is enough that they have in so conveying that land breached their obligation to convey it to Mr Higgins. And it is, we think, implied in the mantra adopted by the tribunal in the decisions reached prior to Brown-v-Scottish Homes that if the landlords should make a mistake of this kind then it will be up to them to correct that mistake. That, for the avoidance of doubt, is certainly our approach.
At para. 700 of Volume 18 of the Stair Memorial Encyclopaedia it is stated that: "The remedy usually pursued by the creditor in the antecedent obligation [where the rule against offside goals applies] is reduction of the prohibited grant." Reduction is, however, a necessary preliminary only where the title to be overridden has been recorded in the Sasine Register. Where, as here, the relevant title (in this case Mrs Sloan's title) is registered in the Land Register, it seems more likely that if we were to make the order that Mr Higgins seeks (i.e. an order requiring the Council to serve on him an offer to sell inter alia the disputed land) then the Council would, failing any agreement on the part of Mrs Sloan to reconvey the disputed land to them (or directly to Mr Higgins - see para. 700 of Volume 18 of the Stair Memorial Encyclopaedia), be able to look to the provisions of the Land Registration (Scotland) Act 1979 to put themselves in a position to comply with such an order.

Section 25(1) of the 1979 Act provides that:-

"… an appeal shall lie, on any question of fact or law arising from anything done or omitted to be done by the Keeper under this Act, to the Lands Tribunal for Scotland."

And section 9 provides inter alia that:-

9. (1) … the Keeper may, whether on being so requested or not and shall, on being so ordered by the court or the Lands Tribunal for Scotland, rectify any inaccuracy in the register by inserting, amending or cancelling anything therein.

(3) If rectification under subsection (1) above would prejudice a proprietor in possession -

(a) the Keeper may exercise his power to rectify only where -

(iii) the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession; …"

However rectification is only one of two possible remedies available to a person who has succeeded in showing that there is an inaccuracy in the register. The other is indemnification in accordance with section 12 of the 1979 Act which provides inter alia that:-

12. (1) … a person who suffers loss as a result of -

(b) the refusal or omission of the Keeper to make … a rectification [of the register under section 9 of the 1979 Act];

shall be entitled to be indemnified by the Keeper in respect of that loss."

The inter-relationship between these various provisions of the 1979 Act has caused some judicial puzzlement - and in Short's Trustee v Keeper of the Registers of Scotland 1996 SLT (HL) 166 their Lordships (in particular Lord Jauncey) roundly condemned what they perceived to be deficiencies in the drafting of that Act and the consequent difficulties of interpreting it. However, the key to a proper understanding of that inter-relationship lies in the reports of the two expert committees, chaired by Lord Reid and by Professor Henry, which preceded the 1979 Act. The Henry Committee report, which set out a detailed scheme for the introduction and operation of registration of title in Scotland, drew both on the earlier Reid Committee report and the (English) Land Registration Act 1925. In Short's Trustee at page 171 Lord Keith refers to and quotes "paragraph 154 of the Henry report" (although that reference should be to paragraph 154 of the Reid Committee report) as follows: "… under registration of title … all registered interests become indefeasible except in the rare case in which rectification of the register is allowed (see paragraphs 114 and 115); even in that case the state guarantee will ensure full compensation to the owner, and any other person who suffers loss by reason of any rectification, and any person who suffers loss because the register is not rectified will also be entitled to compensation." Paragraph 115 of the Reid Committee report cross-referred to above reads: "In deciding who is to be compensated, it becomes necessary to decide what weight should be attached to true ownership of the properties. In England we understand that only very exceptionally is the Register rectified in the face of possession; whether or not he has a valid title, the person in possession is normally allowed to remain, and compensation is paid to the other claimant. We take the view that the same rules should apply in Scotland." And in Short's Trustee Lord Keith, consistently with these paragraphs of the Reid Committee report, thus concluded that: "The intention [of Parliament] must therefore have been that [reduction of a disposition] should only lead to rectification of the register if the case fell within the limited parameters of section 9(3)(a) …" Put another way, the policy underlying the 1979 Act is that rectification of the register should be a relatively rare event.

It is, of course, clear that the applicant in the present case is, ultimately, looking to have the disputed land conveyed to him by the Council; and, therefore, for the Council to take whatever steps may be necessary to rectify the register in so far as it shows that land as being included within Mrs Sloan's title. Meantime, however, the issue we have to decide is whether it is competent for us to require the Council to offer to enter into a contract with Mr Higgins in terms of which they will become obliged to convey the disputed land to him, notwithstanding that that land is, to our knowledge, included in Mrs Sloan's title. On balance we have come to the conclusion that it is.

The practical effect of the order we are asked to make would be to require the Council either to negotiate with Mrs Sloan for a reconveyance of the disputed land or to approach the Keeper with a view to having the register rectified. It is true that we cannot be sure what action Mrs Sloan or, alternatively, the Keeper may then choose to take in the light of our finding that the disputed land ought not to have been conveyed to Mrs Sloan. As she can be said to be in present possession of the disputed land it would not, ordinarily, be possible for the Keeper to rectify the register against her. Here, however, he might well take the view that there is an inaccuracy in the register; which has been caused wholly or substantially by the fraud or carelessness of Mrs Sloan; and that section 9(3)(a)(iii) of the 1979 Act therefore applies. It is likely that in this regard "fraud" must be taken to have what para. 695 of Volume 18 of the Stair Memorial Encyclopaedia (supra) calls "its narrow modern meaning." And that the standard of proof required to show fraud will, consequently, be high (see for example Kaur v Singh and Others 1997 SCLR 1075). But section 9(3)(a)(iii) offers the alternative ground of "carelessness" and it may be that the standard of proof required to satisfy that alternative will be a lesser one. At any event it does not seem to us to be by any means outwith the realms of possibility that the Keeper would be prepared, in the circumstances presented by this case, to rectify the register on one or other of these grounds; in which event he would, of course, be entitled to deny any indemnity payment to Mrs Sloan. It is also possible that the Keeper might elect instead to uphold Mrs Sloan's title and, perhaps, pay compensation to Mr Higgins. In that event it would be open to the Council (effectively on behalf of Mr Higgins, should he be dissatisfied with the Keeper's decision) to invoke either the jurisdiction of the court or of the tribunal under section 9(1) of the 1979 Act.

It is, therefore, impossible to predict with total certainty what the outcome of any action taken by the Council such as that outlined above might be. But it is, in our opinion, enough that in hoc statu the Council (and, therefore Mr Higgins) are not without the possibility of a remedy. On that view of matters we think it is appropriate (and in keeping with the tribunal's decisions prior to Brown-v-Scottish Homes reviewed above) to grant the order which the applicant seeks. We consider those cases to have been correctly decided. We specifically adopt the same view as that expressed by the tribunal in Popescu (supra), namely that the intended effect of the order we are asked to make is not, as apprehended in Doyle, to require the Council to commit an ultra vires act: but rather to ensure that the eventual bargain for the sale of the House by the Council to Mr Higgins will give him the right to buy all that he is, in our opinion, entitled to purchase. We reiterate that had Brown v Scottish Homes come before the tribunal after Patience had been decided by the House of Lords it is unlikely that the tribunal would have decided it as it did. However that may be, we decline in this case to follow the decision of the tribunal in Brown-v-Scottish Homes.

It remains for us to consider the submission made on the Council's behalf that we should not, in the event of our deciding it is competent to make the order craved by Mr Higgins, exercise what was described as the discretion available to us in terms of section 71(2)(b) of the Act to make such an order. A similar submission was made in Brown v City of Glasgow District Council (supra). There it was also said on the landlords' behalf that if the tribunal should order that an amended offer be made that could place them in a difficulty that could only be settled "in another court." Although these submissions are recorded, they do not appear to have been specifically disposed of by the sole member who sat in that case when he decided, following Popescu, in favour of the tenant.

Here we have no note of any argument being deployed by Mr Parham in support of his bare submission. It was simply based on his reading of section 71. A similar contention was put forward in Livingstone v East of Scotland Water Authority 1997 SLT (Lands Tr.) 28; and was backed up by detailed submissions (recorded ibid. page 31). The tribunal in that case (at page 45) disposed of those submissions in the following terms:-

"The word 'may' … in section 71(2) of the [Act] is apt to suggest that the tribunal should, having made a finding order, thereafter have a degree of discretion available to it. ... Where any degree of discretion is intended it becomes necessary, as a matter of drafting, to use the word 'may.' It would, for example, have made no sense to say in section 71(2)(a) that the tribunal 'shall' (i) … exercise any discretion, … But where a case falls clearly within the provisions of paragraph (a) of section 71 … the tribunal must, for the reasons stated by Lords Cairns and Blackburn in Julius v Bishop of Oxford, [1880] 5 App. Cas. 214 [videlicet, 'where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised'] proceed to give the tenant the remedy which section 71(2) has been designed to provide: unless there is any substantial reason to the contrary."

The order deriving from the present application will, of course, be made under section 71(2)(b) of the Act (and not section 71(2)(a) as was the case in Livingstone). However the same reasoning must, in our opinion, again apply. Indeed any discretion implied by the word "may" in paragraph (b) can, in our opinion, apply at most to the period of time within which we may order the landlord to serve an offer to sell on the tenant. Paragraph (b) sets that time frame at a maximum of two months; and we can (and will in this case) substitute some lesser period. But, having come to the conclusion we have regarding the competency of the order craved, it would (we consider) be perverse not to make such an order.

The foregoing disposes of the present application: but in keeping with the tribunal's tradition, noted by Lord Murray in Patience, of offering what he called "pragmatic suggestions", the following further points occur to us:-

(1) Matters of valuation are not, of course, for the tribunal (McLeod v Ross and Cromarty District Council 1983 SLT (Lands Tr.) 5). However, it may be for consideration by the landlords whether the valuation of the subjects set out in the original offer (as assessed by the District Valuer) should hold good in the amended offer we are ordering them to make. The answer will, presumably, lie in the assumptions made by the District Valuer when he arrived at his valuation; and it strikes us as unlikely that he would have been focused on the precise extent of the subjects of sale as, necessarily, we have been. However if he should be of the view that the marginally greater extent of the subjects of sale must, because it permits the parking of a vehicle off the public highway, be reflected in a higher price therefor, there may then arise a question as to the price paid by (or to be refunded to) Mrs Sloan. As already noted, there appears to us to be insufficient space to allow the proprietors of both the House and 12 Livingstone Place a parking facility. However it may just be that a practical solution can, in some way, be worked out so as to permit such a facility to both.

(2) While we have, above, indicated what, following upon our order, seem most likely to be the steps open to the Council to bring about the end result Mr Higgins seeks, we do not suggest that those necessarily represent the only possible solutions. One of the "difficulties" to which the tribunal's old mantra presumably alluded was the fact that there was not then any possibility of the tenant pursuing an actio quanti minoris - he could not, following the conclusion of missives on the terms ordered by the tribunal, insist on a conveyance of the house while excusing the landlord from providing a title to the disputed land and instead pursuing a claim for damages. However section 3 of the Contract (Scotland) Act 1997 now permits a damages claim where previously the pursuer would have been put to a choice between resiling or accepting the tendered title. This may leave the way open for a negotiated settlement of some kind.

(3) We have already commented on the lack of rigour on the Council's part in following through the procedure they had adopted, presumably in reaction to the tribunal's warnings in Morrison and elsewhere, in order to avoid the sort of problem they will now have to confront as a result of our order. It may be a counsel of perfection to say that no housing authority should proceed with a statutory sale until such time as the boundaries of the sale subjects have been agreed in writing by each of the secure tenants who has a potential interest - that could, we appreciate, lead to unacceptable delays where one or other of such tenants proves to be uncooperative. But it seems to us that the position of the Keeper of the Registers is somewhat different; and that he need not (and arguably should not) register the boundaries shown in a conveyance by a housing authority in favour of one of its erstwhile secure tenants without first insisting on proof of the assent of neighbouring tenants.

We were asked by the parties to reserve the question of expenses; and shall accordingly make no order in that regard meantime.