Landlord and tenant – Tenants Rights – Right to purchase – Validity of assignation – Housing (Scotland) Act 1987
The applicant sought a finding that he had a right to buy the house he occupied with his wife. It was not disputed that he had been the secure tenant of the subjects from about 1984 until 1998 when he and his wife separated. The separation lasted only a matter of weeks and they continued to occupy the subjects together thereafter. However, whilst separated the applicant, after discussion of his position by telephone with the landlords had written to them narrating that he had left the marital home and saying: “I would ask that the tenancy … be signed over to my wife”. The letter went on to provide some further detail and requested that the transfer be done with as little inconvenience as possible. Following receipt of the letter an employee of the landlords contacted Mrs Williamson to make arrangements for the transfer of the tenancy into her name. She completed the assignation of tenancy form, signing as assignee. Mr Williamson did not sign the form but the letter was appended to it and treated as equivalent to his signature. The landlords then amended their records to show that from January 1998 Mrs Williamson was the sole tenant of the subjects. There was no further discussion of the matter until about 2001. On one occasion the applicant’s solicitor wrote to the landlords denying that there had been any assignation. However, all subsequent correspondence proceeded on the basis of an assertion that Mr Williamson had assigned the tenancy to his wife. The arguments were directed to establishing the proposition that Mrs Williamson had a right to buy. Ultimately both spouses applied to buy the house and both made application to the Tribunal. It was plain that these had to be treated as alternatives and it was arranged that the question of whether there had been a valid assignation required to be dealt with first. It was contended by the respondents that even if the letter was not, in itself, sufficient evidence of an intention to assign, the applicant was personally barred by subsequent correspondence from disputing that position.
Held (1) the letter in its context was adequate evidence of an unequivocal intention to assign. This had been accepted by landlord and assignee. There was, accordingly, a completed assignation; (2) there was no basis for a plea of personal bar. The subsequent correspondence might have been a valuable adminicle of evidence supporting the original assignation. However, it was plain that, throughout, the landlords had never acted in reliance on the correspondence or actings of the applicant. They had relied on his initial letter. If it had not been valid there was no reason why the applicant should be barred from relying on it.
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
See full decision: LTS/TR/2005/1