This is an application by John Cunningham Williamson for a finding in terms of section 68(4) of the Housing (Scotland) Act 1987 that he has a right to purchase the house at 17 Thrush Avenue, Buckhaven. In support of the application he averred that he has always been and continued to be the tenant of the property. The respondents refused his application essentially on the basis that he had assigned his tenancy to his wife, Mrs Grace Williamson.
Prior to the present application the Tribunal had received an application on behalf of Mrs Williamson asserting that she was tenant in virtue of an assignation by Mr Williamson to her. The ground of refusal in that application, shortly put, was that, as an assignee Mrs Williamson did not have a right to buy. After some discussion of procedure it was decided that this issue of the purported assignation should be determined first and a hearing by way of proof was fixed for 23 February 2006. At that hearing the applicant was represented by Mr Andrew Webster, Advocate and the respondents by Mr Paul Motion, Solicitor. At the start of proceedings they advised the Tribunal that they had been able to enter a Joint Minute agreeing a large number of facts. No evidence was led. The hearing took the form of a debate.
Carter v McIntosh 1862 24D 925
Gallemos Ltd (in receivership) v Barratt Falkirk Ltd 1989 SC 239
Gatty v Maclaine 1921 SC(HL) 1
Gray v Low (1859) 21D 293
Kinninmont v Paxton (1892) 20R 128
McCutcheon v McWilliam 1876 3R 565
Smith v Place D’or 101 Ltd 1988 SLT (Sheriff Ct) 5
William Grant & Sons Ltd v Glen Catrine Bonded Warehouses Ltd & Others 2001 SC 901
Registration of Leases (Scotland) Act 1857
Gloag and Henderson, The Law of Scotland 11th edition
Stair Memorial Encyclopaedia Volume 13
The following material is derived from the joint minute or from productions accepted by the parties as admissible without the need to be spoken to.
1. In or about January 1984 Mr Williamson became tenant of the subjects. He lived there from that time with his wife until about January 1998.
2. In or about January 1998 Mr and Mrs Williamson separated. The separation lasted for only a matter of weeks. They have continued to occupy the subjects together since about April 1998
3. Whilst separated, Mr Williamson telephoned the landlords and followed up the call by writing and signing a holograph letter, all on 12 January 1998. The letter was in the following terms:
“Further to our telephone conversation today, I have left the marital home and I would ask that the tenancy of 17 Thrush Avenue be signed over to my wife Mrs Grace Williamson as she has been a joint tenant of the above address during the time of my having tenancy with SSHA now FSHA.
I request this is done with as little inconvenience as possible and that, as discussed, causing as little upheaval to my daughters also. I do this on the assurance that they will remain in the property and not be caused any upset by being asked to move. I hope you can oblige in this matter”.
4. During February 1998 an employee of the landlords contacted Mrs Williamson to make arrangements for the transfer of the tenancy into her name. The landlords’ standard procedures for this exercise included preparation of a “landlords’ checklist”, signature of an assignation of tenancy form, and a property handover inspection.
5. Mrs Williamson signed an “assignation of tenancy” form on 17 February 1998. She did so as “assignee”. A member of the respondents’ staff signed on their behalf consenting to the assignation. Mr Williamson did not sign the form. At the space for his signature the words “as per attached” appeared in type. The date given is 12 January 1998. We are satisfied that the letter of 12 January was attached and that it was treated by the respondents as equivalent to signature of their form.
6. After the assignation of tenancy form was signed and the completion of the landlords’ checklist procedure, the landlords amended their computer records. The records show that Mr Williamson’s tenancy started on 29 January 1984 and continued until 14 January 1998. The records bear to show that from 15 January 1998 Mrs Williamson was the sole tenant of the subjects.
7. By letter of 31 January 2002, solicitors acting for Mr and Mrs Williamson wrote to the landlords. The letter opened in the following terms:
“Thank you for your letter of 5 December 2001 upon which we have taken our client’s (sic) instructions.
Our clients the Williamsons’ position is that they dispute that there was any assignation. They deny that any assignation took place and do not now wish for any assignation to take place.”
The letter went on to discuss the background and asserted that Mr Williamson had acted on the basis of advice from the respondents and we simply note that, in the present application, we are not concerned with any such argument.
8. On 12 February 2002 the landlords received a letter from the local MSP which stated, inter alia:
“Mr and Mrs Williamson advised me that they are seeking to purchase their home but are experiencing difficulties in this matter. Mr and Mrs Williamson temporarily separated early in 1998 and, following advice from FSHA, Mr Williamson assigned his tenancy to his wife. At that time Mr and Mrs Williamson were not advised of the consequences of this assignation ie that their Right to Buy would no longer be preserved”.
9. On 29 January 2003 solicitors for Mrs Williamson wrote to the respondents. The letter included the following:
“By virtue of the Assignation in favour of our client, her husband, Mr Williamson, assigned his whole right, title and interest over to our client”.
It further asserted that:
“The Assignation served to transfer Mr Williamson’s whole rights as Tenant to our client”.
The substantive thrust of the letter was that Mrs Williamson had a right to buy as tenant in these circumstances.
10. Mrs Williamson submitted an application to buy the property on 22 April 2003. That form made it clear that the Right to Buy could be shared with one or more members of the applicant’s family who were not tenants. The appropriate box on the form was completed showing Mr Williamson in that category. The application included a mandate consenting to details of previous tenancies being obtained. Mr Williamson signed that mandate. He also signed the last page of the application, signing in a box under an instruction “To be completed by each tenant wishing to buy”
11. The landlords refused that application and Mrs Williamson applied to the Tribunal for a finding that she had a right to buy. The form was completed by solicitors. Although they referred to themselves as agents for both Mr and Mrs Williamson, parties are agreed that Mrs Williamson was the applicant. The application to the Tribunal included the following Statement of Facts:
“In around January, 1998, the parties separated and Mr Williamson moved out of the property at Thrush Avenue into a property at 11 Kestrel Grove, Buckhaven, Fife. On 12 January, 1998, he telephoned and then wrote to the landlord asking that the tenancy be signed over to his wife, as joint tenant. This was incorrect as the tenancy was in his sole name and not the joint names of he and Mrs Williamson. Mr Williamson was then sent an Assignation of Tenancy form. The form was then completed and assigned Mr Williamson’s ‘whole rights, obligations and interest as a tenant’ in the property to Mrs Williamson from 15 January 1998. On 17 February, 1998, Mrs Williamson agreed to be bound by the terms of the tenancy embodied in the Tenancy Agreement. The said application was properly executed and effective. It is submitted on behalf of the Applicants (sic) that by virtue of that Assignation, Mr Williamson assigned his whole rights, title and interest over to Mrs Williamson in terms of the Assignation produced … It is submitted on behalf of the Applicants (sic) that the Assignation transfers Mr Williamson’s whole rights as a tenant to Mrs Williamson…”
By subsequent adjustment it was asserted:
“That secure tenancy was subsequently assigned to his wife, Mrs Williamson from 15 January, 1998 and as a direct result of that Assignation, Mr Williamson assigned his right to buy to Mrs Williamson”.
12. The current market value of the property is in the region of £65,000. If the applicant is a tenant, he will be entitled to buy with a discount of 50-60%.
By agreement of parties, Mr Motion addressed the Tribunal first. He said there had been a good assignation. The letter of 12 January was clear. No particular form of intimation was required: Stair, para. 366. There was no standard way of doing it: Kinninmont v Paxton. He understood it to be agreed that no issue arose under the Requirements of Writing (Scotland) Act 1995 but for completeness advised us that this was because the tenancy agreement in the present case was from month to month.
He submitted that, in any event, the applicant was personally barred from disputing the assignation. The letter showed his intention to assign. The respondents acted in reliance on it. He had represented to third parties that there had been an assignation. Plainly he and his wife thought there had been an assignation. Mrs Williamson openly regarded herself as tenant. The landlords had treated her as tenant. Mr Williamson was involved in her application. He had held out the assignation as valid. The landlords would be prejudiced if he was able to go back on that. They would lose the house from their housing stock at a discounted price and lose income from the rent. The respondents gave effect to his request to transfer in good faith. He should not be allowed to go back on it.
Mr Webster set out the background circumstances. He stressed that Mr and Mrs Williamson had lived in the house together for over 20 years. They had only been separated for a few weeks. At that time he had requested an assignation. That was the letter of 12 January. It was to be noted that in refusing his application to buy the respondents had purported to rely on an assignation of 17 February. Clearly Mr Williamson had not signed anything on that date. There were two questions for the Tribunal: had Mr Williamson ceased to be tenant by virtue of an assignation on 12 January; if not, was he personally barred from disputing the assignation?
Mr Webster invited close attention to the terms of the letter. He submitted that it showed future intention, not present intention. In any event, there was no indication of consent by the assignee at that time. There could be no concluded assignation on that date. He referred to the Stair Encyclopedia; Gallemos Ltd; and Carter v McIntosh. There had to be clear words indicative of a present intent to assign. He suggested that it was instructive to compare the requirements of the Registration of Leases (Scotland) Act 1857. This was relevant in the context of a lease. It showed the type of clear expression which was thought appropriate in relation to leases.
In relation to the argument based on personal bar, he submitted that nothing Mrs Williamson did or said had any bearing on the matter. There was no basis in the evidence for an assertion that Mr Williamson was party to her activities. This was not covered by the Joint Minute. He dealt fully with the various productions submitting that there was little or nothing from Mr Williamson which might support an inference of personal bar. In particular, in relation to Mrs Williamson’s application to buy, it was important to bear in mind that Mr Williamson might have derived a right from that application. He was entitled to take advantage of that. It was not inconsistent with the contention that he had a right in his own name.
Mr Webster submitted that before there could be any question of personal bar, it was necessary to show a causal connection between the actings relied on and some change of position by the respondents: Gatty v Maclaine and Grant & Sons v Glen Catrine. He stressed that there was no evidence that the landlords had changed their position in reliance on anything said or done by Mr Williamson after January 1998. They had relied on the letter. If they were wrong to do so there was nothing else. There was no causal connection between any subsequent actings by Mr Williamson and any conduct of affairs by the respondents.
The essential issue in this case is whether Mr Williamson, by his letter of 12 January 1998, effectively instructed a transfer of his interest in the tenancy of the subjects to his wife. It was not disputed that no particular form of words was required for such a transfer. Parties referred to the article on Landlord and Tenant in the Stair Encyclopaedia at paragraph 366: “No particular form of assignation is required provided that the intention to assign is unequivocally expressed”. It may be noted that the case of Kinninmont v Paxton cited, apparently in support of that proposition, does not vouch it explicitly. However, the statement is consistent with the dictum of Lord Justice Clerk Inglis in Carter v McIntosh: “But, if anything is settled in the law of Scotland, it is that no words directly importing conveyance are necessary to constitute an assignation, but that any words giving authority or directions which if fairly carried out will operate a transference, are sufficient to make an assignation”: page 933. A similar observation was made by Lord Justice Clerk Moncrieff in McCutcheon v McWilliam: “Any words which express a present intention to transfer are sufficient as an assignation, apart altogether from forms of style or the schedules of the recent statute”: page 571.
We are satisfied that the dicta in Gallemos add nothing to the present dispute. They must be read in context. The emphasis on the need for “words which may be construed as effecting an immediate transference” reflects no change of underlying principle. There is nothing to support the view that there was any intention to place an increased emphasis on immediacy. In the circumstances of that case there was a clear contrast between an immediate intention and a potential right to transfer.
Mr Motion stressed that he took from the decision in Kinninmont v Paxton no more than the proposition that there was no requirement for any specific form of words. The case is not direct authority for the main proposition but is of some interest in showing that a broad approach may be justified. The letter to the landlord in that case said: “As I intend giving up those premises at Canal Loading Wharf, and have secured another tenant, I will take it as a great favour if you could arrange with him from this date for a three years’ and a half year’s lease”. The pursuer, who claimed to have right to be treated as an assignee, had apparently sought some more formal letter from the assignor to himself to show the concluded agreement. The Sheriff took the view that this showed that the pursuer did not consider himself bound. The Second Division did not agree. On the whole evidence they thought the agreement to arrange for the pursuer to be substituted as tenant was clear.
Despite the careful analysis by counsel and his emphasis on words of possible futurity used in the letter, we have been unable to find any justification for holding that it was anything other than the expression of an unequivocal intention that Mr Williamson’s interest in the tenancy be transferred to his wife without delay. It unequivocally authorised the landlord to carry out steps to operate a transference.
The letter must be construed in context. Mr Williamson was not intimating an intention of giving up the premises. He had already left the premises. He wanted to ensure that the family interest was protected. There was no reason for any gap between intention and effect and an obvious reason for there being no gap. He wanted to be sure that the family could stay in their home and not be at any risk of being put out. His letter cannot reasonably be construed as a proposal which the landlord could ignore or delay implementing. There was no condition, express or implied, about his request. His use of the words “I would ask” instead of a more direct “I ask” can readily be explained as an attempt to be formal or polite. We can see no other explanation. There is no room for doubt that the letter is a request to the landlord to transfer his interest in the tenancy to his wife.
It may be said that the net effect of the letter was well summarised in the applicant’s own pleadings in this case: “On 12 January 1998 he telephoned and then wrote to the landlord asking that the tenancy be signed over … into his wife’s name.”
That request could not, of itself, effect the transfer. In terms of the lease agreement, the consent of the landlord was required. There is no doubt that the consent of the assignee was also required. However, the fact that such consents were required to give effect to his clear instruction does not deprive that from validity. There is no doubt that the landlord and assignee did consent. The landlords acted upon the letter and fairly carried out the instruction implicit in it. They consented and they obtained the formal consent of the assignee. After completion of the landlords’ checks and completion of their documentation, they treated the transfer as valid.
It may be noted that the landlords’ formalities and the completion of the “assignation of tenancy” document can properly be seen as aspects of the landlords’ private machinery for checking the detail of transfer. It cannot be said that the letter of 12 January was written in the expectation of any distinct, subsequent, formal stage. Indeed, the request that it be done with “as little inconvenience as possible” points to a desire to exclude unnecessary administrative formality.
We did have a concern about the reference in the letter to the wife as being a joint tenant but we have concluded that Mr Webster was right to make little of this point. The reference was an error. It was an error which might have been expected to play a significant part in his assessment of what to do in the circumstances. If Mrs Williamson was truly a joint tenant, the applicant’s concern to protect his family from risk of eviction was unfounded. However, there is no basis upon which we could conclude that the decision to have the tenancy transferred was in any sense reliant on that mistake. On the contrary it would tend to make it clearer, if anything, that Mr Williamson was dealing with his own interest in the tenancy. It was that which he wished to have signed over to his wife.
We reach our conclusion with some regret. It is unfortunate that the couple may lose a right to buy their home because of what was properly described by Mr Motion as the “honourable conduct” of Mr Williamson at a time of domestic discord. The respondents indicated that they were not unsympathetic to his position but that they are of the view that they have no discretion in the matter. They cannot dispose of their housing stock by giving it away at a discounted price if there is no legal right to such discount.
On the view we take of the effect of the letter, it is strictly unnecessary to deal with the respondents’ submissions based on the plea of personal bar. However, it is appropriate to indicate briefly our views on the arguments presented. We note for completeness that no argument was addressed to us based either on the possibility of treating the various communings as simply part of the evidence bearing on the instruction to transfer or as providing a basis for a plea of waiver. The plea of personal bar was presented on a fairly broad basis.
We are in no doubt that before a plea of personal bar based on acquiescence could succeed, the landlords would have to show that the actings, relied on as demonstrating acquiescence, caused some change in their position. This is clear from the careful examination of the subject by all three judges in William Grant & Sons Ltd v Glen Catrine Bonded Warehouse Ltd: see pages 923 A-B; 938F; 942E. The respondents’ submission in this case started from the proposition that they acted in reliance on the letter. We have no doubt that was so. But we are not satisfied that this could be a basis for an argument based on personal bar. If the letter was an effective authorisation no more was required. If it was not effective in itself, what was there to bar the appellant from pointing this out? On the other hand, if they had, in fact, relied on the letter, in what sense could they properly be said to have relied on something else. Nothing had occurred to displace that first reliance.
In the present case, the matter might be tested, in the first instance, by assuming that the letter had simply narrated that there had been a domestic quarrel and had asked for assurance that the family would not be put out of the house. The respondents might, in error, have treated this as equivalent to an instruction to transfer the tenancy. By the plea of acquiescence they would seek to establish that Mr Williamson was barred from challenging that error. At what point might that have been said to happen? What was it the respondents did after that point which might lead to such a bar?
It is clear that Mr Williamson asserted, explicitly or implicitly, on several occasions that he had in fact assigned the tenancy. The letter from his MSP is one example and his direct involvement in Mrs Williamson’s application to buy the subjects is another. He signed her application form. We are entitled to infer that he was aware of its whole contents, although that inference would have been open to rebuttal. However, there is nothing to suggest that the respondents changed their position in reliance on any such assertions. On the contrary, it seems clear that they relied throughout on the initial letter as sufficient basis for their belief that there had been a valid assignation. We think this follows from the terms of the letter of 31 January 2002 from F T and D C Wallace which, although not part of the narrative of facts set out in the Joint Minute, was accepted as a document admissible in evidence without being spoken to. As we have seen, that letter denied that there had been a valid assignation. The respondents’ letter of 5 December 2001, to which it was a response, was not produced. However, it is clear from the terms of the solicitors’ letter that the respondents were, at that stage, already relying on their understanding that there had been a valid assignation. There is no clear evidence that anything said or done by Mr Williamson thereafter caused them to alter their position. It may be inferred that they did not accept the explicit assertion made on his behalf that there had been no assignation. We are satisfied that nothing in the actings, writings or communications after January 2002 can be relied on as a basis for a plea of acquiescence because there is nothing to suggest that the respondents acted on such material as opposed to their reliance on the initial arrangement.
There is nothing in the Joint Minute covering the period prior to January 2002 which could provide a basis for such a plea. Mr Motion sought to take something from the fact that the parties had been living together again from about April 1998 and invited the inference that Mr Williamson must have been aware that his wife was treated as the sole tenant thereafter. We might speculate as to what Mr Williamson would have said had he been cross-examined on this topic. However, we are not prepared to draw any inference from the limited material available to us at present.
We think the same analysis would follow even if we had been dealing with a letter in more ambiguous terms. Had that been the case, evidence of the telephone conversation referred to in the letter or of Mr Williamson’s subsequent communings might have been admissible. The approach taken in Kinninmont gives support for the view that the whole circumstances could have been looked at. However, for the reasons set out above we think it plain that the respondents relied on the letter and not on any of the subsequent communings agreed in the Joint Minute. For completeness, it may be added that the Mr Webster’s comment that in the respondents’ Answers they relied on an assignation of 17 February, adds nothing. The particular reference was to material in Mrs Williamson’s application. There is no doubt that the respondents in fact relied on the letter at all relevant stages. In short, had it been necessary to determine this case on the basis of personal bar, we would have been unable to support the respondents’ position.
It was a matter of agreement that if the tenancy had been validly transferred to Mrs Williamson, the present application would fall to be refused.