The applicant, Mrs Katherine Mortimer applied to the respondents seeking to exercise a right under the provisions of Section 61 of the Housing (Scotland) Act 1987 to buy the house at 70 Courthill Crescent, Kilsyth which she had tenanted. The respondents accepted the application and issued an offer to sell. The offer did not include a plot of ground at the front of the house (hereinafter referred to as the “ground”). This was because the ground had been improved and used by a neighbouring tenant in recent years. The formal nature of the respondent’s position appears below.
The applicant applied to the Tribunal for a finding in terms of Section 71(2)(b) that the respondents had served an offer to sell, but by excluding the ground, the contents of the offer were not in accordance with the provisions of Section 63(2) of the Act.
The Tribunal heard the application on 15 May 2002. The applicant’s son, Mr James Mortimer appeared and gave evidence on her behalf. The respondents were represented by their solicitor, Mr Harvey Baird. He led evidence from Mrs Marlene Gourlay, a housing officer employed by the respondents and responsible for the subject property for the last three years.
We were concerned to note that it was not intended by either party to lead the evidence of the neighbouring tenant, Miss Greer, as a witness. There is, of course, no formal requirement to lead such evidence and our procedures do not make specific provision for intimation to be made to parties other than the landlord. However, it is obvious that the person with the real interest as contradictor is almost invariably a neighbouring occupier. We sought and obtained assurance from Mr Baird and from Mrs Gourlay that Miss Greer had been made aware of the existence and nature of the present application. We were told that Mr Baird had given careful thought to the question of whether she should be asked to attend as a witness. He reached the conclusion that because of aspects of her general health, to which he referred, he decided not to do so. Mrs Gourlay said that she had discussed matters with Miss Greer. We were told that her attitude was that although she thought she had agreement with Mrs Mortimer, if Mrs Mortimer insisted on claiming the ground, she would leave the decision to the Tribunal. Miss Greer, herself, did not want to become involved in the process.
With some hesitation, we have decided that no further steps need be taken. We stress, however, that in the normal case we would expect to hear from all directly interested occupiers. Mr Baird plainly recognised this.
The following facts were admitted or proved:
At the hearing there were few matters of dispute between the parties concerning factual matters. One matter which was not agreed concerned the state of the land prior to the re-surfacing carried out by Miss Greer. Mr Mortimer referred to the asphalt surface as not being in bad condition, whereas Mrs Gourlay, apparently quoting Miss Greer, suggested that the land “was a bit of a jungle”. The other important matter related to the discussion between Miss Greer and Mrs Mortimer. Mr Mortimer had been told by his mother that she had given permission for Miss Greer to carry out work on the ground to improve the appearance. The work had been done while his mother was on holiday. She had not expected such a change. Mrs Gourlay said she understood from her conversations that Miss Greer had obtained permission to use the land. We heard no direct evidence of the discussion.
In answering questions from the Tribunal, Mrs Gourlay accepted that the disputed ground was included in Mrs Mortimer’s original tenancy. She also accepted that if Mrs Mortimer had applied to buy her flat in 1996 the council would have included that ground in its offer. Mrs Gourlay appeared to consider that Mrs Mortimer’s interest in the land had been “abandoned”. However, she could give no detail of any conversation with the applicant and her evidence of what Miss Greer told her of her discussion with the applicant was expressed in very general terms.
In submission on behalf of the applicant, Mr Mortimer accepted that the appearance of the ground had been improved by the stone chip surface, but he did not accept that his mother had agreed or intended to give up the tenancy of the disputed land. He submitted that Miss Greer could not be said to use the land. He pointed out that it required no maintenance in its current state and minimal action to keep tidy.
The submissions of Mr Baird for the respondents appear from the discussion below.
It was not seriously in dispute that in 1995 when the applicant became tenant, the ground was part of the tenanted subjects.
Miss Greer obtained the tenancy of No. 68 in 1996 and shortly thereafter, by agreement with Mrs Mortimer, had use and enjoyment of the ground in the manner described above. It is plain that there was no formal change of tenancy involving the landlords. We accepted both Mr Mortimer and Mrs Gourlay as credible witnesses. However, there was no evidence that there had been any discussion about the respective rights in the ground. The available evidence supports no more than a conclusion that Miss Greer recognised the rights of Mrs Mortimer and asked for permission to tidy up the site and make it look better. Although this tidying may have gone further than Mrs Mortimer expected, the use made of the ground thereafter was consistent with that permission. The view that the request was made in terms of improving the appearance of the place is also given some support by the evidence that Miss Greer's concern with visual amenity extended to the painting of the common path. There can have been no thought that she had acquired any proprietary rights in that path.
Mr Baird did not seek to contend that there was evidence of an agreement to change the extent of the two tenancies. He accordingly did not require to address the question of whether, and in what circumstances, such an agreement might be effective without the knowledge or involvement of the landlord. Although he put to Mr Mortimer the proposition that the applicant had abandoned her rights in the land, he did not make any such positive case in submission. In any event, we consider that the evidence would not have supported it.
At the end of the day, the sole argument advanced was that in terms of section 64 the tenant was only entitled to such subjects as she had "full enjoyment and use of" at the date of the application to buy. It was suggested that this was a deliberate recognition by Parliament that the extent of the subjects comprised in a particular tenancy would often be unclear and, accordingly, that a test of enjoyment and use at the date of the application had been introduced deliberately as the measure of the right.
We are unable to accept this submission. We consider it clear that the primary measure of the tenant's right is to be found in section 61. This gives the tenant a right to "purchase the house". The "house" is defined in section 338. It includes "any yard, garden, out-houses and pertinents belonging to the house or usually enjoyed therewith". We heard no submission based on this definition and in the circumstances we must follow our established practice of addressing the fundamental question of what subjects were included in the tenancy: see for a recent example, Higgins v North Lanarkshire Council 2001 SLT (Lands Tr) 2. That is quite a different question from the question of use at the date of application.
We are satisfied that section 64 is not intended as a qualification of the extent of the tenant's rights under section 61. It is, on the contrary, intended to prevent any restriction of such rights by way of limiting condition.
Mr Baird prayed in aid the Reference by Cumbernauld and Kilsyth District Council 1993 SLT Lands Tribunal 51 at 55 and the observation by Lord Elliott that: "In the opinion of the Tribunal, the present occupation of garden ground by Mr Peter Brodie and Mr Mulholland determines the extent of their tenancies". We are satisfied that this observation must be taken as directed at the particular facts of that case. In context it clearly was not intended as a general proposition of law. Indeed, immediately after the passage cited Lord Elliott went on to explain why the extent of occupation could be taken as determining the extent of the tenancy in that case. In particular he pointed out that there could be no question of Mr Brodie being said to have occupied the garden "as the result of any private arrangement". That was a case where he had occupied the ground in good faith for a period of over 30 years from the beginning of his tenancy.
We are aware that there are many informal arrangements by public sector tenants for use of neighbour’s ground. Such arrangements are not unknown between proprietors. A history of use may well be of great importance as a part of the evidence bearing on the extent of title either as tenant or proprietor. However it is not definitive. Where, as here, there is clear evidence of the extent of the subjects initially tenanted and an understandable reason for the arrangements made for use, we cannot treat that use as the measure of right. Mrs Mortimer is entitled to purchase the subjects comprised in her tenancy. We are satisfied that the ground in question was part of these subjects and the evidence does not demonstrate that it ever ceased to be.
It is appropriate to add that although Miss Greer is at risk of loss of the benefit of the work carried out on the ground, it is not to be assumed that Mrs Mortimer will want to risk upsetting her neighbour by changing the use without good reason. In any event it must be pointed out that Miss Greer has now had the benefit of improved visual amenity for several years.