Lands Tribunal for Scotland

OPINION

John Robb and Another
v
Tayside Joint Police Board (No. 3)

Introduction and Summary

[1] This is an application under section 65(2) of the Housing (Scotland) Act 1987, as amended (“the 1987 Act”) for determination of disputed matters relating to an offer to sell a dwellinghouse which is attached to a small police station. It is the third application by these applicants relating to their attempt to purchase the house. Mr Robb, who was a serving police officer, was entitled to occupy rent-free under applicable police regulations. The first application raised a difficult question as to whether there was in the circumstances a Scottish Secure Tenancy. That was decided in August 2008 in the applicants’ favour (LTS/TR/2007/12). The applicant had meantime retired, in January 2008. The respondents have accepted the Tribunal’s decision but there has been continuing disagreement about the terms of the sale. An earlier attempt to challenge conditions was held incompetent (LTS/TR/2009/07) as a result of the procedure followed. This application, in relation to the respondents’ Offer to Sell dated 4 September 2009, is clearly competent. The first issue in this application relates to the respondents’ attempt to hold the applicant liable for rent (or an equivalent payment) following his retirement and to make payment of that an essential condition of the sale. The other two issues relate to the extent of ground to be sold along with the dwellinghouse.

[2] In summary, the Tribunal has decided:-

(i) In relation to liability for rent, Condition 8 in the offer to sell, as redrafted, is upheld;

(ii) The exclusion of Area ‘A’, a drying green area to the rear of the house, is not reasonable and the respondents are ordered to serve an amended offer to sell accordingly;

(iii) The exclusion of Area ‘B’, part of a parking area in front of the house and police station (but with a servitude right of access over it) is upheld.

The Issues

[3] In their Offer to Sell dated 4 September 2009, the respondents offered to sell to the applicants the semi-detached dwellinghouse known as and forming Police House, Main Street, Bridge of Earn (“the subjects”), as delineated on a plan identifying the garden ground offered along with the house, together with a right of access over another area shown on the plan and consisting of a parking area within a small “lay-by” outside the police station and Police House.

[4] The applicants requested the respondents to vary the terms of the Offer to Sell in certain respects. The respondents refused to do so. In submissions at the conclusion of the hearing, the respondents defended Condition 8, redrafted as follows:-

“8. Rent at the sum of £550 per calendar month payable and due for the subjects of sale from 15 January 2009 will be payable up to the said date of entry. It is an essential condition of sale that all such outstanding sums due in respect of the subjects of sale shall have been paid in full by the said date of entry.”

[5] The issues for decision were:-

(i) Should Condition 8 (as redrafted) be struck out (“the rent dispute”)?

(ii) Should an additional drying-green area to the rear of the Police Station, referred to as Area ‘A’, be included in the subjects offered for sale?

(iii) Should part of the “lay-by” ex adverso the subjects, referred to as Area ‘B’, be included in the subjects of sale (as opposed to the offered right of access over the parking area)?

Procedure

[6] At the oral hearing of the application, the applicants were represented by Ms Keracher, Solicitor, of Messrs McCash and Hunter, Perth, who led oral evidence from the applicant Mr Robb. Affidavits by Grant Hamilton and Jeanette Mitchell, friends of the applicants, relating to the applicants’ use of the areas ‘A’ and ‘B’, were also lodged. The respondents were represented by Ms Newlands, Solicitor, who called Isobel McGarrol, Solicitor and Head of Legal Services, Tayside Police, Iain Bell, a retired Divisional Superintendent, and David Barclay, Chief Inspector, to give oral evidence. Both sides lodged documentary productions. A Joint Minute of Admissions was also lodged. The Tribunal subsequently carried out a site inspection. As well as agreeing various facts, the Joint Minute narrated that Section 24 of the Housing (Scotland) Act 2001 (“the 2001 Act”), relating to varying the terms of tenancies, does not apply to rent.

Authorities referred to:-

Housing (Scotland) Act 1987
Housing (Scotland) Act 2001
Pollock v Dumbarton District Council 1983 SLT (Lands Tr) 17
Neave v Dundee District Council 1986 SLT (Lands Tr) 18
Brookbanks v Motherwell District Council 1988 SLT (Lands Tr) 72
City of Glasgow District Council v Doyle 1993 SLT 604
“Housing (Scotland) Act 2001 – Guidance on Tenant Participation” (Scottish Executive Development Department)

The Facts

[7] On the basis of parties’ agreement, the evidence and submissions and our site inspection, we found the following facts relevant to the issues to have been established.

[8] The subjects comprise a substantial semi-detached dwellinghouse and garden ground on the west side of Main Street, Bridge of Earn, the other part of the building being a small, intermittently manned, police office. The police house and the police station have the appearance of one combined property, built around 100 years ago. The house is an attractive, two storey, stone and slate villa with a brick rear extension. The adjoining single storey police station is also of stone with a slate roof. They are connected by an internal doorway which is now locked. They are accessed from a short “lay-by”. In front of both buildings are two areas of well maintained garden ground, separated by a netting fence, with the police house set back from the “lay-by” by some 3 metres and the police station set back by some 7 metres. The front garden of the police house is separated from the “lay-by” by a fence, pedestrian gate and double gates leading into the driveway. The only door to the police station is situated on the front (east) elevation. On the south side, there is an area of gravelled ground about 4 metres in width between the south elevation of the police station and the boundary with the neighbouring house. A timber fence, in line with the front elevation of the police station, crosses this gravelled area and in practical terms prevents access from the front to the gravelled area and also to the rear garden ground beyond.

[9] The applicants have resided in the house since 2002. The applicant Mr Robb was a serving police officer with the respondents until his retirement in January 2008. In terms of applicable police regulations he occupied rent-free until his retirement, but not beyond that date. There was no written tenancy agreement. Prior to his retirement, Mr Robb indicated his wish to purchase the house but the respondents believed that he did not have the right to do so and refused his request. The Tribunal decided that he held a Scottish Secure Tenancy of the subjects and was accordingly entitled, along with Mrs Robb, to purchase the house. The respondents accepted this decision. The relevant Offer to Sell, following some earlier procedure which did not come to fruition, was dated 4 September 2009 and included Condition 8. The first sentence of this condition (subsequently re-drafted during the hearing, as narrated above) then read as follows:-

“Any sums in lieu of rent payable and due for the subjects of sale, from the Purchaser’s date of retirement from Tayside Police on 12 January 2008 will be payable up to the said date of entry.”

[10] The respondents’ policy on ‘Police Authority Housing’ states in relation to retired officers:-

“If an officer is permitted to retain a police authority house on retiral the continued occupancy is only permitted on an agreement to purchase and NOT on a rental basis and is subject to the approval of the Police Authority.”

[11] Had it not been for the application to purchase, the applicants would have been expected to vacate the house upon Mr Robb’s retirement.

[12] By letter dated 15 September 2008, the respondents advised the applicant Mr Robb that they would not be appealing the Tribunal’s decision, the property would be valued and a plan of the tenanted subjects prepared. This letter also stated:-

“I will contact you again to let you know what is proposed in regard to outstanding rental due since the date of your retirement”

[13] By letter dated 18 December 2008, the respondents advised the applicant Mr Robb as follows:-

“As previously intimated to you, whilst you continue to reside in the Police House you are liable to pay rent on the property. You will be aware that your entitlement to rent-free accommodation provided by the Board ceased when you retired from service. Rent has been assessed as £550 per month and this is payable from the date of retirement on 12 January 2008 until the date of entry, if you choose to accept the offer to sell which I understand was sent to you earlier this week. When I know the agreed date of entry I will raise an invoice for the rent due, alternatively if you wish to make an arrangement for interim payment please let me know and we could agree a sum to be paid.”

[14] The rental figure of £550 per month was based on advice obtained by the respondents from independent surveyors in September 2008 as to the market rental value of the subjects, a matter on which no issue was taken.

[15] Area ‘A’, not included in the offer to sell but identified by the applicants as, they claim, an area included in their tenancy, is a grassed area extending to about 64 m2 to the rear of the police station. Area ‘A’ has been used by the applicants and Mr Robb’s predecessor as a drying green or recreational area. It is bounded by a stone wall to the south west, and, to the north, by an undefined line extending from the north corner of the police station to an angle in the wall on the western boundary of the combined subjects. The boundary to the east would be the rear elevation of the police station and an undefined line separating Area ‘A’ from the gravelled area on the side of the police station referred to above and extending southwards to meet the garden fence at the southern boundary.

[16] Area ‘A’ has been used along with the rest of the rear garden ground solely by the resident police officer and his family at least since 1996, without objection or challenge by the respondents. This use has been unconnected with the police officer’s duties. The respondents have not made or requested any use of Area ‘A’ since the applicants took up residence in the house. The applicants have since the start of the lease in 2002 maintained the rear garden ground, including Area ‘A’ as the police house garden. They have cut the grass in Area ‘A’. Although the respondents at one stage arranged for grass cutting and garden maintenance of all their police stations and houses to be undertaken by Perth and Kinross Council, it was more recently agreed that the appellants could continue to do this work in the police house garden, including Area ‘A’, with the council maintaining the ground to the front of the police station. Gardening equipment is kept in a small storeroom located on the north wall to the rear of the police station and accessible only from the police house garden (and not from Area ‘A’).

[17] Yellow road-markings in the “lay-by” highlight the pedestrian access to the police station and also identify a space for a disabled driver’s vehicle. There is space for parking 3 vehicles in the “lay-by” although there is very limited space to pass parked vehicles. A tarred drive, with partial bell-mouth and metal gates, leads from the “lay-by” along the north elevation of the house to a double (tandem) garage positioned just to the rear of the house. Mr Robb is in the practice of parking his car on the drive, inside the gates, where there is space for two vehicles, but his wife normally parks in the “lay-by”.

[18] That part of the “lay-by” which is owned by the respondents, i.e. between the line of the pavement and the front gardens of the police station and house, was not included in the offer to sell but was identified as an area over which the respondents proposed to grant a right of access in favour of the police house, to enable its owners to access its driveway. The applicants, however, have identified as Area ‘B’ that part of the “lay-by” ex adverso, i.e. directly in front of, the front garden of the police house, which they submit should be included in the offer to sell. Area ‘B’ bisects the disabled parking space.

[19] The population of Bridge of Earn and the surrounding area is expanding, with a relatively large amount of house building.

Applicants’ Submissions

[20] The rent dispute. In summary, Ms Keracher advanced four reasons why Condition 8 was not ‘reasonable’ in terms of Section 64(1) and should be struck out:-

(i) The condition was too vague and ambiguous (c.f. Pollock v Dumbarton District Council). After Ms Newlands presented the redrafted condition, Ms Keracher accepted that this removed the vagueness to an extent, but still relied on the fact that there was no clear or agreed tenancy agreement and rental figure.

(ii) The imposition of rent being an ‘increase in rent’, there had been no compliance with Section 25(1) and (4) of the 2001 Act, as there had been no valid ‘notice’ and no consultation. The tenancy arrangements had accordingly not changed. Reference was also made to para 71 of ‘Housing (Scotland) Act 2001 – Guidance on Tenant Participation’. The September 2008 letter was not sufficiently specific.

(iii) The payment required under Condition 8 amounted to an obligation to make a payment which the tenant would not have been obliged to make had he not exercised the right to purchase, and was accordingly prohibited by section 75(1) of the 1987 Act: c.f. Brookbanks v Motherwell District Council.

(iv) The condition did not relate fairly and reasonably to the sale (Pollock, supra). Even if the applicants should pay rent, that was not a matter to be determined in this application.

[21] Area ‘A’. Ms Keracher relied on Section 64(1)(a) of the 1987 Act. The applicants had used this area since moving in, as a drying green and for recreational purposes, as had the previous tenant. Conditions could not be used to interfere with the underlying intention of the legislation that the subjects should be offered exactly as let. (City of Glasgow District Council v Doyle, particularly at 609). This was an exclusive drying green. The applicants had cut the grass. C.f. Neave v Dundee District Council.The respondents had never used this area.

[22] Area ‘B’. Reliance was again placed on Section 64(1)(a). The applicants had not only exercised access over this piece of ground, but had exercised a right to park. If only a right of access were offered, the applicants would not be able to enjoy the rights they had as tenants.

Respondents’ Submissions

[23] The rent dispute. Ms Newlands accepted that an essential condition, in the offer to sell, of payment of any rent which might be due and payable, while leaving that dispute to be decided by someone else, could not stand. She accordingly produced the redrafted condition and accepted that she would require to persuade the Tribunal that the respondents were entitled in the circumstances to rent or at least a payment equivalent to rent and that this should be a condition of the offer. She accepted that the respondents might be in breach of duties under section 23 of the 2001 Act, which obviously presupposed knowledge that there was a secure tenancy, but pointed out that that would not have been possible in the circumstances. Section 25 empowered the landlords to increase the rent; the letter of December 2008 could be construed as ‘notice’, to take effect in January 2009, there being no prescribed form of notice. The letter was clear: any reasonable person would realise that it referred to these subjects and this tenancy. Reference was also made to Sections 40 and 41 of the 2001 Act. The letter of September 2008 amounted, in the circumstances, to consultation on the proposal to charge rent. There was no issue about the amount. Ms Newlands then referred to Section 64(1)(a)-(c) of the 1987 Act. Reasonableness was to be judged from both sides’ point of view: Keay v Renfrew District Council. She had met the objections of vagueness or ambiguity with the redrafting. The requirement to pay rent was reasonable. Non-payment of rent was a ground for refusing to sell. There was clearly a valid connection between rent and the sale. There being no issue as to the amount, the letter of December 2008 made the condition reasonable. The condition was not covered by Section 75 of the 2001 Act, as the respondents had no authority to allow the applicants, following Mr Robb’s retirement, to occupy rent-free. Had he continued to occupy, at least for this length of time, without seeking to purchase, rent would still have been sought: it was the retirement, not the application to purchase, which had led to the obligation to pay rent. This was a matter which could be decided by the Tribunal because of its relationship to the purchase.

[24] Area ‘A’. Ms Newlands submitted that the drying-green had not been used exclusively by the applicants. It had also been available for use by the respondents, although this had not arisen whilst the tenant was a police constable. Had there been a written lease, nothing would have stopped the respondents using this area, e.g. to store items. The applicants’ right to occupy had not been increased by the respondents’ failure to do so. There was traditionally one unit, all of which was available for operational issues. In allocating the ground to be sold, the respondents had considered the needs of the applicants and the operational needs. There was a real possibility of development on the site. On a practical level, the applicants had been allocated sufficient garden. This condition was reasonable.

[25] Ms Newlands was not required to respond in relation to Area ‘B’.

Tribunal’s Consideration: the rent dispute

[26] The Tribunal’s discretion in proceedings brought under section 65(2) of the 1987 Act is not open-ended. It has to be exercised in the light of the statutory provisions in relation to the right to buy. In particular, we require to consider whether Condition 8, as redrafted, satisfies the requirements of section 64(1) (there being no suggestion of any issue arising under any of the other provisions of Section 64). We also require to consider whether it offends against Section 75.

[27] Section 64(1). We remind ourselves of the accepted general approach to Section 64(1) with its provisos, as decided in Keay v Renfrew District Council. A proposed condition requires to be reasonable in the circumstances. Reasonableness is to be judged both from the landlord’s and from the tenant’s point of view. The requirements of the provisos (a), (b) and (c) must also be met. This does not mean that conditions must be directed at meeting these requirements. The rent dispute does not raise any issues under the provisos. The issue is therefore one of reasonableness in the circumstances. We agree with the Tribunal’s approach in Pollock v Dumbarton District Council, where they indicated, at page 20, that conditions “must fairly relate to the sale”, and also that they must be clear and unambiguous.

[28] We are firstly of the opinion that the condition as redrafted is clear and not either vague or ambiguous. As it was originally drafted, there did appear to be a real issue as to that, but in our view the re-drafted condition leaves no room for doubt.

[29] It appears to us to be generally reasonable to require payment by the tenant of rent up-to-date as a condition of the sale of a house upon exercise of the statutory right to buy, so that in effect, if there are any arrears at the date of settlement of the purchase price, the landlord can insist on payment of those arrears before the purchase is completed, rather than being left with the remedy of a separate claim which he would otherwise have to pursue. We have seen such clauses, unchallenged, in offers to sell which have been challenged before the Tribunal on other issues. Clark and Others v Shetland Islands Council raised a slightly different issue, concerning provision for late payment. The condition in issue was a stipulation for interest at 5% above ‘minimum lending rate’, upon late payment. The Tribunal “rather liked the applicants’ compromise that rent should continue to be paid”, but in the event simply struck out the condition in order, as they said, to preserve both parties’ positions in the matter.

[30] We note, as Ms Newlands pointed out, that a tenant in arrears with rent, and indeed certain other payments, is now, under section 61D added by the Housing (Scotland) Act 2001, no longer entitled to purchase the house so that he can, in effect be required to pay any arrears before applying to purchase. That would seem to support the reasonableness of a condition such as Condition 8 at least in a normal case where there is no question about the obligation to pay rent: if this is an important enough matter to affect eligibility to exercise the right to buy, it would seem reasonable also to require payment of rent up-to-date as a condition of the sale. We would have thought that such a clause would be common in ordinary market sales to tenants. Acknowledging that this is a particular statutory context not necessarily to be compared to market transactions, we do not see why the position under this scheme should be any different. We do not see this as any sort of objectionable disincentive or penalty, but rather as a matter of appropriate administrative provision to avoid the expense and inconvenience of seeking recovery by other means or alternatively allowing small amounts of arrears to go unpaid.

[31] Our starting point, then, is that we consider that a condition of this kind is normally reasonable. The present case, however, arises in different circumstances. The tenancy had been rent-free. The applicants do not concede any liability to pay rent and argue that this matter should not be decided in these proceedings.

[32] There is clearly something to be said for the view that, where there is a dispute, payment should not be made a condition of the sale. Striking out the condition need not deprive the respondents of their remedy: both parties’ rights in the dispute could be preserved, as in Clark and Others, above. Perhaps the matter goes beyond that into a question as to whether the Tribunal has jurisdiction to determine a dispute as to whether rent is payable. We do consider that if there is any serious issue about liability for rent for the period referred to in the condition – now, from 15 January 2009 until settlement – we should not in effect decide the matter by allowing Condition 8 to stand..

[33] However, we also consider it appropriate to ask whether the respondents’ claim for rent does raise any serious issue about liability for rent. Although the applicants argue that it is not a matter to be determined in this application, they, like the respondents, have presented submissions on the question whether rent is payable. If the matter admits of no serious doubt, we think that it should be resolved in these proceedings. If, having heard the arguments, it appears to us clear and unarguable that rent for the period in question is due, we should uphold the condition as it would not be reasonable to require the respondents to have to pursue this another way. If, however, there is any serious question about this matter, we should strike out the condition leaving this question to be decided, if necessary, elsewhere. If the respondents seemed to have no reasonable argument in favour of liability for rent, we should, again, strike the condition out.

[34] In our view, whatever the position might be about rent from the earlier date of Mr Robb’s retirement, the argument that it is not due from 15 January 2009, i.e. 4 weeks after the letter of 18 December 2008 in which liability for rent at £550 per month was intimated, has no reasonable foundation.

[35] The applicants rely mainly on an application of Section 25 of the 2001 Act, on the basis, which was not challenged and which we can accept for the purposes of the argument, that that section, which refers to ‘increases in rent’, can apply to the imposition of rent where occupation had previously been rent-free. What Section 25(1) does is give statutory authority to the landlord under a Scottish Secure Tenancy to increase the rent (on this argument, impose rent). We did not understand Ms Keracher to submit otherwise. There is also no issue about the amount of the rent, which was clearly vouched by an independent opinion.

[36] The applicants rely on their submissions about notice under Section 25(1) and consultation under Section 25(4), i.e. not whether the respondents were entitled to charge rent but whether they have validly done so.

[37] The requirement under Section 25(1) is to give notice not less than 4 weeks before the beginning of any rental period. Section 41 tells us that the notice must be in writing, and section 40 deals with service of notices. Beyond that, there is no prescribed form of notice. There is no suggestion that the letter of 18 December 2008 was not validly served. In our judgment, it plainly gives notice of the increase in the rent. Rent is not claimed any earlier than 4 weeks later.

[38] We do not consider that the consultation requirement in Section 25(4) could have any application to the circumstances of this case. Whereas Section 25(1) refers to “a” tenancy, Section 25(4) refers to “all, or any class of, its tenants”. There was, in our view, no proposal affecting more than one tenant. The proposal related to one particular tenancy in one particular set of circumstances.

[39] On a more general level, we find nothing unreasonable in the respondents’ commencing to charge rent in the circumstances of this case. For reasons which are understandable, the respondents did not make the claim for rent while the applicants’ first application to the Tribunal was pending. That might make the claim in respect of that period difficult, but we are considering a later period. The regulations which resulted in Mr Robb having a tenancy which was subsequently held to be a secure tenancy did not authorise rent-free terms after officers’ retirements. Once a secure tenancy was established, a normal incident would be the payment of rent, and by September 2008 the respondents had made their position clear. Nor do we consider that the respondents’ statement of their policy in relation to retired officers assists the applicants’ position. This is essentially a policy not to agree to retired officers’ renting the police houses which they had occupied during service. If, as here, an officer has come to be in occupation after his retirement, for a reason other than such agreement, and without any agreement that such occupation would be rent-free, the obligation to pay rent which would be implied by law even if Section 25 did not authorise it appears to us to make Condition 8 reasonable in this case as in the more normal situation.

[40] The applicants also referred to Section 54 of the 2001 Act and passages in the guidance document on the consultation requirements in that section. It appears to us, however, that Para 71 of the guidance, to which Ms Keracher referred, distinguishes Section 25. Section 54 deals with other matters. We are unimpressed, in relation to the issue of reasonableness, by references to consultation in relation to these very particular circumstances, where the landlords’ intention to charge rent had been made clear.

[41] There was reference to a conversation with (now retired) Superintendent Bell, whom the respondents considered it necessary to call as a witness. We do not think that on any view of that conversation he could be said to have expressed a view as to whether rent would be charged in the circumstances which have occurred, but in any event it is clear to us that he was not representing the respondents in relation to that matter.

[42] Accordingly, having considered all the matters raised by the applicants, we conclude that Condition 8, as redrafted, meets the test of reasonableness in Section 64(1).

[43] Section 75. That does, however, leave the additional question whether Section 75 applies in the particular circumstances. It should be noted that Section 75 was added (by the Local Government and Planning (Scotland) Act 1982) to the original 1980 legislation, as, no doubt, an additional sanction against disincentives or the imposition of penalties on tenants exercising the then new right to purchase. However, while this was no doubt the policy, the provision does not make any such motive the test, but rather disqualifies all attempts to require payments which the tenant “would not have been obliged to make … had he not exercised … the right to purchase”. The section is apparently wide enough to apply to any attempt to recover a payment, not simply to inclusion in the offer to sell, so that if the provision were applicable in the circumstances of this case, it seems that the respondents would be precluded from pursuing their claim to rent at all.

[44] Section 75 was not in place when Clark and Others, above, was being considered by the Tribunal. It would not appear to place any obstacle in the way of a condition like this in the normal situation where liability for rent is not in issue, as the tenant would anyway have been obliged to pay rent. In the present case, however, the issue arises because the question of payment of rent would as a matter of fact not have arisen if the applicants had accepted the respondents’ refusal to sell the house. This may look like ‘but for’, or immediate, causation.

[45] The wording of Section 75 may seem to encourage such an approach. It seems to us, however, that the true cause of the obligation in this case is not the exercise of the right to purchase but rather the fact that the applicants have continued to occupy the house after Mr Robb’s retirement, i.e. after his entitlement to occupy rent-free came to an end without any agreement that his tenancy could continue without payment of rent. The fact that it has only been claimed – and indeed may only have been validly claimed – after notice was given of its imposition does not in our view alter the legal cause of the obligation. Mr Robb would have had an obligation to pay rent if his tenancy had for some reason continued and he had not exercised the right to purchase.

[46] The circumstances appear to us distinguishable, in this matter of causation, from the circumstances in Brookbanks v Motherwell District Council. There, the tenant had some time previously obtained a central heating grant from the council who were the landlords. There had been a condition of the offer of the grant that it or some of it would be repayable “if any person purchased” the house. In their offer to sell, the landlords had a condition that if such a grant had been received, the purchaser would be bound to pay all sums due in terms of the grant. In that case, therefore, the obligation arose because the right to purchase was exercised. If there had been no purchase, there would have been no obligation. Section 75 was held to apply. In the present case, although it might be said that the decision to enforce the obligation was only taken in the particular circumstances, central in which was the exercise of the right to purchase, the obligation arose because the applicants continued to occupy the house after Mr Robb’s retirement. The applicants are being required to make a payment which they are obliged to make because of their occupation of the house under a secure tenancy. They are not being required to make a payment which they would not have been obliged to make had they not exercised the right.

[47] For these reasons, we uphold Condition 8 as redrafted.

Tribunals’ Consideration: Extent of Ground Offered

[48] There might have been a question as to whether the extent of ground included in the respondents’ offer was a condition of the offer, and therefore whether the appropriate section under which application should be made was Section 71 and not Section 65. However, that point was not argued and, since there is no time limit for applications under Section 71(1)(d), it is academic. The underlying point at issue, in relation to both Area ‘A’ and Area ‘B’, is, and would be under Section 71, whether the applicants are being offered the full extent of the subjects tenanted by them.

[49] Area ‘A’. The respondents’ unwillingness to include the drying-green area in the sale is understandable. Although they are not able to point to any use which they have made of that area during the period of the applicants’ occupation, or indeed at any time in the past, they can foresee the possibility of development to the rear of the police station and their allocation of ground does leave the applicants with a substantial garden area, the larger part of the area to the rear of the house, including a double garage.

[50] However, under the statutory scheme which is now accepted as applicable, the issue is the extent of the tenancy. There was of course no tenancy agreement defining the extent of ground let. The decisive question therefore is, “what ground was let to Mr Robb?” (c.f. Neave v City of Dundee District Council, at page 21). Despite the different circumstances in which this exercise of the right to purchase has come about, the issue is a fairly familiar one because it has not been at all unusual for missives of let not to include any definition of the area let.

[51] In this case, the evidence is clear that the applicants, and Mr Robb’s predecessor as occupier and tenant of the house, have as a matter of fact used the drying-green area as an integral part of the garden of the house. There is no evidence the other way. Access to this area from the police station can only be obtained by going round the front and then through the police house garden. The respondents, however, argue that this area has also been available for use by them while the tenant was a police officer. We can well imagine that in the absence of any written agreement otherwise, if an operational need had arisen, in practice the respondents could have exercised some control over that area as well, perhaps, as other areas of the garden. They of course did have an element of control over the house and garden, in the exercise of their duties as landlord to maintain. They would expect access if necessary for the maintenance of the police station (and indeed there is and could be no challenge to conditions in the Schedule to the offer to include such rights, on a reciprocal basis, in the purchaser’s title).

[52] The position in relation to grass-cutting is instructive, because at one time the respondents arranged this over the whole garden but, following representations from Mr Robb, that was latterly confined to the small area to the front of the police station. The respondents appear to us in practice to have accepted that the drying-green area was occupied as part of the garden of the police house.

[53] Sympathetic as we are to the respondents’ position in this matter, we cannot allow their no doubt genuine wish to preserve an area to facilitate possible future development at the police station to alter the position about the extent of the garden ground let. The statutory scheme does not allow landlords to make that sort of reservation of ground.

[54] In these circumstances, we consider that the applicants are entitled to have Area ‘A’ included in the offer to sell. There was no dispute about the precise boundaries, the applicants having produced a plan showing the extended area sought by them.

[55] We would just mention that had we been upholding the respondents’ position, we would have raised an issue which became evident when we inspected the area, viz. that the respondents’ plan appears to assume that the south side of the path at their intended boundary of the ground meets the west boundary at the angle in the stone wall, whereas in fact it is the north side of the path which ends in that position. The intention was apparently to include the path, which meets a path proceeding in a northerly direction along the west boundary, in the ground sold. The result of this apparent small error would seem to have been to fix the boundary diagonally across the length of the path, which we do not think was intended. However, in the light of our decision, which is in effect to replace that boundary with three new boundaries as on the applicants’ plan, this matter does not require to be pursued.

[56] Area ‘B’. We did not require Ms Newlands to respond to the applicants’ submissions in relation to this area, because we did not see any basis for the applicants’ case for obtaining ownership of that part of the lay-by directly in front of the police house. The lay-by has obviously been created, utilising part of the respondents’ ground, to facilitate parking, no doubt primarily for users of the police station, whether police officers or members of the public. We can accept, as we were told, that it was also regularly used by Mrs Robb to park her car there, although this would seem slightly to obstruct the passage of vehicles in this quite narrow area. We cannot, however, accept that Mrs Robb’s practice founds any claim for that area, which is not in any way marked out on the ground and indeed bisects the disabled parking space, to be within the subjects let. She was not enjoying this right as a tenant. It seems to us that she was merely taking advantage of the facility which is open to all members of the public. The respondents’ offer includes an appropriate right of access over the area in question. This seems to us properly to reflect the position under the present tenancy.

Decision

[57] For these reasons, we have decided to uphold Condition 8, as redrafted, and to uphold the exclusion of Area ‘B’, but to order the respondents to serve an amended offer to sell so as to include Area ‘A’ in the sale.

[58] Parties were agreed that further slight amendment of Condition 2 is required because the stipulated date of entry (8 January 2010) has passed and also a stipulated right of the respondents to withdraw the offer where settlement does not take place within 6 months after the valuation also no longer meets the position. These matters are reflected in the Tribunal’s Order.

[59] No motion has to date been made in relation to the expenses of this application. In all the circumstances, including the divided success, parties may feel that no award of expenses either way would be appropriate. However, if there is any application for expenses, that matter will be considered by the Tribunal on the basis of written submissions, as is our normal practice.