DESCRIPTIVE RUBRIC

Landlord and tenant – Public sector housing – Tenants' rights – Right to purchase – Failure to serve timeous offer – Subsequent offer not acceptable to tenants – Application to 'Tribunal to make offer on behalf of landlord – Variation of conditions – Nature of obligation to exhibit writs – Obligation to deliver clear title – Significance of potential crofters claims – Bounding title – Obligation regarding sewerage – Obligation to re-instate in event of destruction of subjects – Landlords continuing obligation to maintain – Adjustment of valuation – Prevention of delay – Notice of Delay – Deduction of rent – Period of deduction of rent – Acceptance by Tribunal of implied reference to arbitrate – Crofters Holdings (Scotland) 1886 – Prescription and Limitation (Scotland) Act 1973 – Housing (Scotland) Act 1987, sections 62, 63, 66A, 71 – Lands Tribunal Act 1949, section 1(5)

Nicol v Shetland Islands Council
6 February 2001
LTS/TR/1999/3

The tenants applied to buy subject which were part of buildings formerly occupied as a school and school house and situated on open hillside to the east of the main road from Sumburgh to Lerwick. The former school had become a community centre. The old schoolhouse, tenanted by the applicants, included a walled garden, lying to the south of the house. Access to the subjects from the road was taken over ground owned by a third party and then over the former playground.

Although the landlords made clear that they did not dispute their obligation to make an offer to sell, various conveyancing problems were perceived. Attempts were made to resolve these by discussion. When the landlords eventually made a formal offer it was well out of time. The tenants did not find the conditions acceptable and proceeded by application to the Tribunal under section 71 of the Housing (Scotland) Act 1987, asking the Tribunal to make an offer to sell. The Tribunal made the offer on terms similar to those proposed by the landlords. The tenants were then able to object to these. Most objections were resolved prior to hearing and the matters left for the Tribunal were largely points of detail turning on their own facts. The main dispute arose from the description of the subjects in the foundation writ. They were described in terms of a quarter of acre of ground lying in a scattald and as "formerly marked off on the ground and as delineated on" a docqueted plan. The plan purported to show an area within the scattald with bare land between that area and the adjacent hill dyke on two sides. The subjects as occupied by the applicants were, however, contiguous with the only existing dyke on the south side. There was some evidence that the dyke had been moved. There was no way of identifying the ground as "marked off" but the subjects had been conveyed as a site for a public school and playground and a residence for teachers. Such facilities had been built. A dispute over access and parking was resolved by the landlords obtaining title to relevant ground and offering to convey this to the tenants. The landlords sought an increase on the price as assessed by valuation to reflect this additional piece of ground. The tenants had served a notice of delay in terms of section 66A and sought declarator that they were entitled to deduct from the price the whole rent following the date of service.

Held (1) that a title by reference to lines which cannot now be identified is not of the nature of a bounding title so as to limit rights established by prescription; (2) on examination of the detail of the titles, maps and subjects, the Tribunal was satisfied that title to the subjects occupied by the tenants had adequately been established by possession following the foundation writ; (3) it was established on balance of probabilities that the tenanted subjects formed part of school buildings as completed in 1882 and that, accordingly, no question of competing crofters rights under the Crofters Holdings Act 1886 could arise; (4) once a landlord had made a genuine offer to sell, even if on conditions not acceptable to the tenant, the right to deduct rent from the price stopped; (5) as the parties had agreed a valuation for the purposes of the proceedings and as the Tribunal would otherwise have had to arrange for a valuation to be made, it was now too late to seek an increase; and (6) in any event the evidence that the alleged change in the extent of the title offered, justified an increase was vague and unspecific.

Authorities referred to:

Brown v North British Railway Co 1906 8 F 534 at 542
Clark and Others v Shetland Islands Council LTS/TR/1981/599
East of Scotland Water Authority v Linginstone 1999 SC 65
Evans v Scottish Homes 1995 (LTS/TR/1994/16)
Fullerton v Monklands District Council 1983 SLT (Lands Tr) 15
Higgins v North Lanarkshire Council LTS/TR/1998/13
MacLeod v Ross & Cromarty District Council 1983 SLT (Lands Tr) 5
Reid v McColl 1879 6R 640
Ross & Cromarty District Council v Patience 1997 SC (HL) 46
Suttie v Baird 1992 SLT 133
Thomson v Stirling District Council 1995 SLT (Lands Tr) 4
Troup v Aberdeen Heritable Securities Co 1916 SC 918

Text books

Gordon, Scottish Land Law (Second Edition)
Halliday, Conveyancing Law and Practice, Second Edition
Burns, Conveyancing Practice, Fourth Edition
Cusine & Rennie, Missives, First and Second Editions


See full decision:  LTS/TR/1999/3