OPINION

Dorothy Ireland v Dundee City Council

Introduction

[1] This case is concerned with a dispute about aspects of a “right to buy” application under the Housing (Scotland) Act 1987 (“the 1987 Act”). It was brought as an application under sec 65(2) of the Act but, at our prompting, was amended at the outset of the hearing aftermentioned to make it a reference under sec 71(1)(d), that is to say, a complaint that the respondents had served an offer to sell whose contents did not conform with the requirements of sec 63(2)(b). The applicant is Ms Dorothy Ireland and the Respondents are Dundee City Council (“the Council”). Ms Ireland was a joint tenant with her late father, Robert Ireland, of a house at 4 Crombie Terrace, Dundee. At the time of his death Mr Ireland was the tenant of a sheltered Council flat elsewhere in the city. It is agreed that Ms Ireland has a right to purchase the Crombie Terrace property. The dispute concerns whether she is entitled to a discount on the purchase price calculated in accordance with the original provisions of sec 62 of the 1987 Act (the “preserved right to buy”) or under the less favourable provisions of that section as amended by sec 49 of the Housing (Scotland) Act 2001 (“the modernised right to buy”).

[2] We heard the application at Edinburgh on 11th September 2015 when the applicant was represented by Mr Douglas Ross and the respondents by Mr Christian Marney, both advocates.

Statutory material

The Housing (Scotland) Act 1987, secs 62, 65(2)
The Housing (Scotland) Act 2001 (“the Act” or “the 2001 Act”), secs 11, 12(1), 13, 22, 32 49 ,61, Schedule sec 2, Schedule 5 Part 2
The Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc.) Order 2002 (“the Order” or “the 2002 Order”)

It is convenient, given their importance, to set out art 4(1) and (3) of the Order and secs 12(1) and 13 of the Act in full:

“4. Transitional provisions and savings – right to buy

(1) Where, immediately before the conversion date, a tenant had a right to purchase under section 61 of the 1987 Act, the provisions of the 1987 Act and the 2001 Act shall, after the conversion date and until the earliest of –

(a) the termination of the tenancy (within the meaning of paragraphs (3) below);

(b) the assignation of the tenancy; or

(c) the passing of the tenancy by operation of section 22 (succession to Scottish secure tenancy) of the 2001 Act other than to a person referred to in paragraph 2 of Schedule 3 to the 2001 Act,

apply in relation to that tenancy subjection to the modifications mentioned in paragraph (2) below.

(3) For the purposes of this article, a tenancy is terminated if it is brought to an end under any of the circumstances listed in section 12(1) of the 2001 Act …”

“12 Restriction on termination of tenancy

(1) Despite anything in the tenancy agreement, a Scottish secure tenancy may not be brought to an end except –

(a) by an order for recovery of possession under section 16(2),

(b) by operation of section 18(2),

(c) by operation of section 22,

(d) by operation of section 35,

(e) by written agreement between the landlord and the tenant, or

(f) by 4 weeks’ notice given by the tenant to the landlord.

13 Termination of joint tenant’s interest in tenancy

A joint tenant under a Scottish secure tenancy may bring to an end that tenant’s interest in the tenancy by 4 weeks’ notice given to the landlord and each of the other joint tenants under the tenancy.”

Authorities

Boyle v South Lanarkshire Council 2015 SLT (Lands Tr) 189
Carey v Glasgow Housing Association LTS/TR/2010/05
Elsden v Pick [1980] 1 WLR 898
Kildrummy (Jersey) Ltd v Calder 1994 SLT 888
Knapdale (Nominees) Ltd v Donald 2001 SLT 617
Lord Elphinstone v Monkland Iron and Coal Ltd (1886) 13 R (HL) 98
Morrison v Rendall 1986 SC 69
Rizza v Glasgow Housing Association 2008 SLT (Lands Tr) 13

Texts

McBryde, The Law of Contract of Scotland, 3rd ed8.38 - 8.43
Robson, Residential Tenancies: Private and Social Renting in Scotland, 3rd ed12.08

Pre-hearing procedure

[3] Prior to the hearing there had been some efforts between the parties to establish common ground. In addition to the pleadings we were provided with a statement of agreed facts. A notice to admit had been served on the applicant and a notice of non-admittance returned declining to accept a number, though not all, of the propositions advanced in the notice. We were also helpfully provided with a joint set of productions comprising, in the main, copies of various tenancy agreements between the applicant or her late father and the respondents together with printouts of some related “key book entries” from the respondents’ computerised records and correspondence between the parties.

The evidence

[4] We heard evidence from the applicant and, for the respondents, from Ms Joanne Duthie, a Lettings Team Leader in their Housing Department. Their evidence was as follows.

Dorothy Ireland (49)

[5] Ms Ireland confirmed that she had lived at 4 Crombie Terrace since 1992 along with her parents and her brother. The tenancy was in her father’s name alone. Production 1 was the original tenancy agreement. She agreed that her father had subsequently signed a Scottish secure tenancy agreement in April 2003, production 2. She agreed that her name did not appear on the household composition form completed and signed by her father at that time. She was not able to explain why her name had been omitted. The names of her parents and brother were typed; her father never typed.

[6] Ms Ireland’s mother died on 2006 after which her father’s health had deteriorated. He began to develop dementia.

[7] In late February or early March 2007, Mr Ireland had applied for Ms Ireland to be made a joint tenant with him of Crombie Terrace. The relevant paperwork was production 3. Ms Ireland confirmed that initially the application was refused by letter dated 19 March on the ground that she did not meet “the residential qualifications required”. Following the provision of further information the Council had been prepared to reconsider the matter and a meeting was arranged after which the joint tenancy agreement was signed by her. Ms Ireland’s recall of this process was not exact. She had a vague memory of attending an interview and of providing information on her employment. Asked whether the Council had been looking for proof of residence for six months, she was uncertain as to what period was being considered. She had provided documentary material that had not been returned. If she had been asked for details going back to 1992 she could have provided them.

[8] Ms Ireland confirmed that the joint tenancy agreement, production 4, had been signed by both her father and herself. One sheet in this bundle (4/3) was a “Notice in terms of sec 23(4)(a) of the Housing (Scotland) Act 2001 Right to Buy under the Housing Scotland Act 1987” . The content of the sheet consisted of three paragraphs starting with the words “TAKE NOTICE”, the paragraphs being separated by the word “OR”. The first paragraph detailed that it was concerned with houses designed for persons with special needs which were exempt from the right to buy. The second paragraph indicated that it was concerned with houses situated within a “pressured area” and that the right to buy was suspended. The third paragraph indicated that the right to buy “under this new tenancy” was regulated by the modernised right to buy. It went on to narrate the maximum discount under that scheme. It continued as follows:

“Your right to buy under your existing tenancy in respect of calculation of discount is not affected by the Housing (Scotland) Act 2001, and the discount available under your existing tenancy is therefore more generous. You should be aware that entering into this new tenancy would have a detrimental effect on the discount percentage which you would obtain were you to exercise your option to purchase under the Right to Buy Scheme”.

Ms Ireland had no recall of having read or of having discussed this form with anyone but agreed that she had signed it along with her father.

[9] In May 2007 Mr Ireland’s health had deteriorated and he was taken into Liff Hospital. Ms Ireland stated that the view of the family was that arrangements would have to be put in place for improved care of Mr Ireland whose dementia was worsening. This had led to him becoming the tenant of a sheltered Council flat – “housing with care” as the witness called it – at 211A Balunie Drive, Dundee. The tenancy agreement, production 5 was signed by Mr Ireland on 16th November 2007. Ms Ireland confirmed that Mr Ireland had moved into the flat direct from Liff Hospital.

[10] Both Ms Ireland and her elder sister, Joan, had power of attorney in respect of their father’s affairs. It was the applicant’s sister who aided Mr Ireland in making arrangements with the Council concerning Balunie Drive but the applicant was aware of what was in process; it had been a family decision.

[11] She had not been sent any document signed by her father terminating his interest in Crombie Terrace. Production 6 was a tenancy agreement for Crombie Terrace in her sole name. She confirmed that it did not bear her or anyone else’s signature. She had no recall of having seen it or been sent it or of having signed a form like it.

[12] Her father had never returned to live at Crombie Terrace. He had left Balunie Drive in January 2010, entering Menziehill Care Home, then, in April 2010, the special Dementia Unit at Pitkerro Care Home, whence he had been admitted to Ninewells hospital in April 2012, remaining there until his death on 1 June 2012.

[13] Ms Ireland confirmed that she had decided to purchase her home and had received an offer of sale by the Council on modernised discount terms. The relevant correspondence was in production 9. She confirmed that by the letter which was production 9/21 her solicitor, on her behalf, had intimated intention to apply to the tribunal for a determination as to her entitlement to the preserved right to buy.

[14] In cross-examination she was asked whether she had started paying half the rent of Crombie Terrace when she had become joint tenant in April 2007. She explained that she had paid the whole rent. Her father had gone into hospital in May 2007 and she had taken over the payment of the whole rent from then onwards.

[15] Once her father had moved out of Crombie Terrace he had never come back. They had decided as a family that he needed extra care. Although the process had been handled by her sister, she herself knew that an application for sheltered housing had been lodged, considered and approved and that it was intended to result in a permanent arrangement.

[16] She confirmed that when her father had become tenant of Balunie Drive he had become responsible for the rent there also. Mr Marney, having explained that we may hear evidence that the Council would not let someone have two tenancies simultaneously, asked her whether that was what the family had been trying to do at that time. She replied “No, because I was the join tenant and presumed the tenancy would continue with me”. Asked whether she had continued as sole tenant of Crombie Terrace she said “No, I continued the tenancy”. She agreed that she had continued living there and taken on all the responsibility of the tenant. Asked whether her father had been trying to take on a new tenancy whilst keeping the old one, she replied that she had kept the joint tenancy. Asked whether her father, while tenant of Balunie Drive, had also retained the tenancy of Crombie Terrace, she replied that she did not know. She agreed that she had been party to all of these arrangements and had been happy to take on all the obligations of tenant at Crombie Terrace. Asked whether she had been sent a new rent card and a new rent number when her father had removed to Balunie Drive, she thought she probably had.

Joanne Duthie (36)

[17] Ms Duthie had extensive experience of the Council’s housing operations in her current and previous roles, having worked in their Housing Department for 16 years.

[18] She identified production 4 as the joint tenancy agreement for 4 Crombie Terrace and 5 as Mr Ireland’s tenancy agreement for Balunie Drive. She explained that at the point of introduction of the Scottish secure tenancy, the Council had set up a group to “re-sign” all of its tenants. This involved a process of interview. As part of that process a form was completed and signed detailing the members of the tenant’s household. In this case the form named Robert Ireland, his wife Edith and their son, David. No mention was made of the applicant on the household composition form production 2/4. The household names were typed, probably by a member of the Council’s staff. The form was, she understood, agreed as having been signed by Mr Ireland.

[19] Applications for properties such as Balunie Drive were considered by a panel which decided the priority to be attached to an application and approved the tenancy when a house became available. She thought that there would have been a viewing but she had had no personal involvement in the letting.

[20] The Council had a policy of not allowing a person to have two tenancies. She explained that after Mr Ireland took the tenancy of Balunie Drive administrative arrangements had been put in hand to change the Crombie Terrace property to a single rent account. She had been asked to deal with this. She referred to various printouts (production 7) from the Council’s systems demonstrating these changes. These had been created by her at that time, more specifically on 6 December 2007. She explained that such entries were made a few days later than the events which they recorded. Although it was not apparent on the face of the documents produced, she had checked the system and there was another screen, not produced, which had her initials on it, showing that she was the person who had processed the entries relating to changing the tenancy of Crombie Terrace to a sole tenancy. Print 7(1) related to creating a sole tenancy for Ms Ireland at Crombie Terrace in November 2007. Its processing type was shown as “assignation”. The entry says “New Tenancy Signing Date: 06/12/2007” and “Latest New Tenancy Start Date: 26/11/2007”. The witness said that the second date marked the time when Ms Ireland had become the sole tenant, matching the date of Mr Ireland’s move to Balunie Drive. The reference to “Tenancy Type: Single Responsibility” showed that the tenancy was a single tenancy; that was how such tenancies were recorded on the Council’s systems. Production 7(2), she said, showed Robert Ireland moving from joint tenancy status to single tenancy status on his move to Balunie Drive. These were not systems or printouts to which a tenant had access; they were purely internal records. She further explained that there was pressure on the Council to match the dates of tenants moving out of one property and into another in order to minimise voids when no rent would accrue to the Council. In the case of transfers the Council was happy to accept short notice as voids could be avoided. When someone was leaving the system altogether notice was required as otherwise a loss of rental income could result.

[21] In cross-examination Ms Duthie confirmed that she had not been involved in the process of Ms Ireland becoming a joint tenant, referred to in productions 3/3 and 3/4, nor in the completion of production 2/4, the “Household Update Form”, although she had been part of the team which dealt with such forms. She could not say how the names listed on it came to be there. She confirmed that she had had no personal contact with the Irelands or their representatives in the course of the transactions recorded in production 7.

[22] Mr Marney asked to be allowed to raise a new matter in re-examination. It had to do with rent arrangements for Crombie Terrace after Mr Ireland had moved out. There being no objection, we allowed this. The witness explained that a new rent card would have been sent out to Dorothy Ireland and that she would have had sole responsibility for the rent. There was no cross-examination on this.

Details of Productions

[23] As set out above, a number of specific points arising out of the productions were put to witnesses. Later, in submissions, some emphasis was placed on aspects of the various forms and correspondence. It is convenient to describe here the material in question.

[24] Part 1 of the joint tenancy agreement for Crombie Terrace (4/1) states: “This tenancy is an assigned tenancy, following upon and continuing the tenancy of the house by ROBERT IRELAND which commenced on 22/06/1992”. The heading at the top of the sheet is “ASSIGNATION”. Part 11 of the agreement (4/4) under the heading “IMPORTANT INFORMATION” states: “This agreement does not terminate any existing tenancy. the (sic) terms and conditions of this Agreement replace the terms and conditions under any other Tenancy Agreement that you had with us, immediately before this agreement came into effect, in relation to the house”.

[25] The documents employed to establish the tenancy of Balunie Drive have some similarity to those used earlier in the year for the joint tenancy of Crombie Terrace. However, the first page does not bear the heading “ASSIGNATION” nor does it include a section stating that the tenancy is an assigned tenancy. It does contain the same wording in sec 11 (5/3) stating that “this agreement does not terminate any existing tenancy… etc.”. The package also contains a Notice (5/4) under sec 23(4)(a). On this occasion it does not set out alternatives but states that the house is one designed for persons with special needs and is exempt from the right to buy.

[26] Production 6 purports to be a tenancy agreement for Crombie Terrace dated 6 November 2007 in the sole name of the applicant. It is similar to the joint tenancy document of April 2007 (production 4). It bears the heading “ASSIGNATION”. In section 1 it says: “This tenancy is an assigned tenancy, following upon and continuing the tenancy of the house by ROBERT IRELAND which commenced on 23/04/2007”. In part 11 (6/3) it has the same statement under the heading “IMPORTANT INFORMATION” as the earlier document. The Notice in terms of sec 23(4)(a) of the 2001 Act does not follow the “alternative approach” but confines itself to the third option contained in the earlier document (4/3), the latter part of which is quoted above. The production is not signed at any point.

[27] Production 9 comprises assorted correspondence between the applicant’s agents, Jack Brown & Company, solicitors, and the Council. The Council acknowledges in a letter sent in April 2013 (9/13) that it has been “unable to locate a copy of the specific document signed by Mr Robert Ireland surrendering his part in the joint tenancy”. The letter also says in relation to the design of the form: “Given that the Council only really has one form of Tenancy Agreement, this is the way it was decided to document matters, for the information of Housing Officers primarily”. The bulk of the production is taken up with an exchange of legal points.

Submissions

(i) for the applicant

[28] For the applicant, Mr Ross provided a written skeleton argument for which we are obliged. Pursuant on the amendment made to the nature of the application at the start of the hearing, he moved us to find that the applicant was entitled to buy under the preserved scheme.

[29] Mr Ross sketched the background to the right to buy scheme and the changes that had been effected in the amount of discount available as between the new and preserved arrangements. The key provision was art 4 of the 2002 Order. Paragraph 1 set out the transitional provisions and paragraph 2 described the modifications that kept in force the old right to buy terms. A central submission was that where immediately before the conversion date a tenant had a right to purchase under sec 61, the transitional provisions applied to that tenancy until the events specified. That is, the benefits of the transitional arrangements applied to the tenancy, not the tenant.

[30] Mr Ireland’s tenancy had become a Scottish secure tenancy on 30 September 2002. Before that date he had a right to purchase under sec 61 of the 1987 Act. Accordingly, the old rules remained applicable to the tenancy until the earliest of the three events set out in sub paragraphs (a) to (c) of art 4(1) of the 2002 Order. In Mr Ross’s submission none of these events had occurred. He dealt with them in turn.

Article 4(1)(a): termination of the tenancy

[31] Termination of tenancy was termination within the meaning of para (3) of art 4. It provided that, with certain exceptions with which we are not concerned, a tenancy was terminated if brought to an end under any of the circumstances (a) to (f) set out in sec 12(1) of the 2001 Act. In their answers, as adjusted, the Council on an esto basis had averred that “when Mr Ireland terminated his joint interest in the tenancy on 26 November 2007 the tenancy which began on 2 June 1992 was terminated in terms of sec 12 of the 2001 Act”. The Council had not, however, specified the head of termination which applied. Mr Ross submitted that heads (a) to (d) plainly did not apply.

[32] Under head 12(1)(e) a Scottish secure tenancy could be brought to an end by written agreement between the landlord and the tenant. No such agreement had been produced and the Council had not averred that such an agreement was ever entered into. Further, given that at the relevant time there was a joint tenancy, an agreement to terminate would have to have been with both the applicant and her father. In this regard Mr Ross drew support from Robson at 12.09. It was clear that 12(1)(e) could not apply. As to 12(1)(f), the provision of four weeks’ notice, no written notice had been produced nor had the Council averred that such notice had been given. As the tenancy had not been terminated in terms of sec 12(1) it followed that it had not been terminated for the purposes of art 4(1)(a) of the 2002 Order.

[33] While he considered that it was “entirely unclear” that Mr Ireland had terminated anything in 2012, Mr Ross submitted that if the tribunal took the view that he had terminated something then, at most, it had been his joint interest in the tenancy, which was all the respondents themselves averred he had terminated. That fell to be distinguished from terminating the tenancy.

[34] Mr Ross also drew attention to sec 13 of the 2001 Act allowing a joint tenant under a Scottish secure tenancy to bring his interest in the tenancy to an end by giving 4 weeks’ notice to the landlord and each of the other joint tenants. There were no averments made or evidence produced to suggest compliance with these notice requirements.

Article 4(1)(b): assignation of the tenancy

[35] There was no definition in art 4 of the 2002 Order of the meaning of “assignation of the tenancy”. Nor did the 2001 Act contain a definition although it did contain provisions relating to assignation at sec 32. That section provided for assignation, subletting and the taking in of lodgers. These actions required the consent in writing of the landlord and in the case of an assignation there was a six month “only or principal home” requirement. Provisions were made in a schedule as to procedure.

[36] By reference to Lord Elphinstone v Monkland Iron & Coal Ltd. Mr Ross submitted that the essence of assignation was substitution of the assignee for the assignor or cedent. Mr Ireland had not applied to the Council to assign his tenancy. He had applied to become a joint tenant with his daughter. The form used (production 3) did not mention “assignation”. It was entitled “Application for Turnover of Tenancy”, whatever that might mean. After initial refusal, the request had been granted. The idea that this was an assignation did not sit well with the general understanding of what assignation entails or with the wording of sec 32.

[37] In the 2001 Act, at sec 11(5), specific provision had been made for the inclusion of joint tenants:

“The tenant under a Scottish secure tenancy and one or more other individuals falling within subsection (6) may jointly apply in writing to the landlord for the other individuals to be included with the tenant as joint tenants under the tenancy; and the landlord must consent to the alteration of the tenancy unless it has reasonable grounds for not doing so”.

While it was true that the tenancy agreement dated 18 April 2007 had the word “ASSIGNATION” printed at the top, this could not be determinative of the legal character of the document. It was clear, given a proper understanding of the meaning of assignation and in light of the provisions of the 2001 Act, that what took place in 2007 was not an assignation but an application for Ms Ireland to be included as a joint tenant with her father.

[38] Mr Ross submitted that it followed that art 4(1)(b) did not apply. In support of this view he referred to the letter from the Council of 22 November 2013 (Prod. 9/17) where the Senior Solicitor wrote:

“… I agree that notwithstanding the addition of Dorothy Ireland as a joint tenant, the tenancy at 4 Crombie Terrace continued to be governed by the preserved right to buy. I also agree that what happened in the spring of 2007 did not amount to an assignation of tenancy for the purposes of Article 4 of the 2002 Order”.

[39] However, the Council appeared to cling to an argument that art 4(1)(b) applied in Answer 4 where on an esto basis they advanced the argument that:

“… when the applicant became a joint tenant on 23rd April 2007, Mr Ireland had partially assigned the tenancy to himself and the applicant. When Mr Ireland terminated his joint interest in the tenancy on 26th November 2007 the tenancy was then fully assigned from himself to the applicant”.

Mr Ross submitted that this argument did not stand scrutiny. It was at odds with the Council’s acknowledgement that the creation of the joint tenancy was not an assignation; it introduced a novel notion of partial assignation for which there was no foundation in the 2001 Act, nor was any other authority cited in its support.

[40] As to events later in 2007, there was no evidence of any document having been executed. It was clear that whether looking to April or November of 2007, individually or in combination, there had been no assignation of tenancy. Article 4(1) (b) did not apply.

Article 4(1)(c): passing of tenancy by succession

[41] Turning to the third way in which a preserved right to buy might be brought to an end, Mr Ross led us through art 4(1)(c) which refers to the passing of the tenancy by operation of sec 22 of the 2001 Act and schedule 3 at paragraph 2. There were two scenarios. First, if Mr Ireland had ceased to be a tenant in November 2007 then there could be no question of a tenancy passing by succession. On the other hand, if nothing had been signed bringing his tenancy to an end then he was still a joint tenant with his daughter. Succession by virtue of operation of sec 22 was then possible but the right to buy on preserved terms would come to an end unless the tenancy passed to a person referred to in paragraph 2 of schedule 3. Paragraph 2 included:

“(1) A person whose only or principal home at the time of the tenant’s death was the house and …

(b) who is, where the tenancy was held jointly by two or more individuals, a surviving tenant.”

If the tribunal was to conclude that Mr Ireland and his daughter were joint tenants at the time of his death as Ms Ireland was a “qualified person” art 4(1)(c) would not operate to end the right to buy on preserved terms.

[42] So far as the cases submitted as authorities were concerned, Mr Ross did not consider that they were much in point as the circumstances were different. He emphasised what he said was the confusing and ambiguous character of the Council’s forms. The legislation should be to the fore but to the extent that the forms were to be relied upon they should be interpreted contra proferentem.

[43] In summary, Mr Ross emphasised that Mr Ireland having had a right to purchase under sec 61 of the 1987 Act immediately before the conversion date, that right to buy on preserved terms applied until the earliest of three events set out in art 4(1) of the 2002 Order. None of these events had yet occurred. The tenancy continued to exist with Ms Ireland having become first a joint tenant and then a sole tenant either at the time of her father’s death in 2012, which was his principal argument, or in 2007 if his tenancy had been terminated at that point (which was denied). In either event, the preserved right to buy continued to apply to the tenancy of Crombie Terrace and should be given effect in relation to Ms Ireland’s application to purchase.

(ii) for the respondents

[44] Mr Marney also assisted us by providing a skeleton argument. In it he first set out the facts he believed to have been established. In addressing the applicant’s primary argument, Mr Marney submitted that the first issue to be decided was whether Mr Ireland remained, at the time of his death, a tenant of Crombie Terrace. The respondents’ position was that he had brought that tenancy to an end in November 2007. This view was supported by the fact that Mr Ireland had given up occupation and moved to Balunie Drive, that he paid rent at his new home and that it was a permanent move. This was the result of an application for a new tenancy that had been approved. A new tenancy agreement had been signed. The Council’s position was that he could not have two tenancies. There was no expectation by Mr Ireland that he would have two tenancies. The tenancy had been recorded as terminated. The tribunal asked Mr Marney whether the Council’s policy in the matter was subject to variation or exception but he was unable to provide any additional information. We also asked as to any statutory prohibition of two tenancies and Mr Marney pointed to sec 11(1)(c) of the 2001 Act which requires, as part of the definition of a Scottish secure tenancy, that the house is the tenant’s only or principal home. We drew Mr Marney’s attention in this context to subsec (8) of sec 11 which says that a tenancy which is a Scottish secure tenancy continues to be such a tenancy even if subsec (1)(b), (c) or (d) is no longer satisfied. No further submission was made on this point.

[45] In addressing the terms of sec 12 of the 2001 Act Mr Marney argued that in this case notice had been given by the tenant to the landlord. Mr Ireland gave notice that he required different accommodation; he entered into a new written tenancy. It was clear that he intended to end his tenancy of Crombie Terrace. He suggested that the use of the word “may” in the expression “a Scottish secure tenancy may not be brought to an end except…” as permissive of certain ways of bringing a tenancy to an end but not mandatory to the extent of excluding any other lawful means of ending a tenancy. Mr Ireland and his representatives, his daughters, had been aware that he intended to give up his tenancy. Drawing support from the case of Boyle at paras 26-30 Mr Marney submitted that the notice period was conceived in favour of the landlord. Clearly notice had been given. While he could not say that there was express written agreement, no specific form of notice was required; it was about the message. What had arisen had been done to assist the tenant and it was possible for the landlord to waive compliance with the requirement. The provision should be given a purposive construction. There was a termination of tenancy that had been carried out lawfully, as desiderated in Boyle.

[46] The tribunal raised with Mr Marney the case where a tenant abandoned a property and the effect of failure to give notice in those circumstances. While that discussion was inconclusive we note that there are procedures available, for example under sec 12(1)(b) and sec 18, which may cover the case.

[47] In response to further questions Mr Marney confirmed his view that Mr Ireland’s tenancy had ended. The concept of a joint tenancy was important and involved separate and distinct rights for the joint tenants. In relation to the suggestion that as Mr Ireland had moved into a property where the right to buy did not apply and his daughter had continued the previous tenancy she would assume his preserved right to buy, Mr Marney’s analysis was that Mr Ireland’s right to discount travelled with him and would remain with him. He did not agree that it transmitted to Ms Ireland. In relation to such matters he referred to Robson at 12.09. The commentary referred to the common law position, not to Scottish secure tenancies.

[48] In turning to the applicant’s alternative case, Mr Marney characterised it as being to the effect that even if Mr Ireland had terminated his joint tenancy, the applicant was nevertheless entitled to purchase in terms of art 4. The correct approach was to adopt a purposive construction of the provisions. Article 4(1) dealt with rights personal to a tenant. Those were the rights that Mr Ireland had immediately before the conversion date of 30 September 2002. The preserved rights applied in relation to that tenancy. It was his tenancy and only his tenancy that was in contemplation. He lost the right if he terminated his tenancy or if he assigned it. The right was also lost on succession other than to a person referred to in para 2 of schedule 3 of the 2001 Act. The provision in 4(1)(c) was the only means of transmission provided for by statute; there was no provision for transmission of the preserved right to another during lifetime. If Parliament had intended to create such a right it could and would have made express provision. If Mr Ross was right then this opened a new species of transmissible right.

[49] When Ms Ireland had taken up her tenancy she had acquired her own rights, in a general sense, as a tenant and undertaken obligations as a tenant. Her rights as a tenant were distinct from any rights held by her father. He would have been able to end his tenancy; he would have to have done so to secure a new tenancy with the Council. The ending of his tenancy did not affect his daughter’s rights as a tenant. Ms Ireland clearly did not have the right to purchase immediately before the conversion date. “That tenancy” and the right to buy was personal to the tenant in question, Mr Ireland.

[50] From Rizza Mr Marney drew the proposition that there was no doubt that the main effect of the 2002 Order was that existing secure tenants continued to have the benefit of old rights and that tenants of new tenancies, including those created as a result of transfers or exchanges, were only able to buy on modernised terms. From Boyle he drew the proposition that ”existing secure tenants continued to have the benefit of the old rights until the tenancy was terminated”. The argument that even if Mr Ireland’s interest in the joint tenancy had terminated the tenancy nevertheless continued was misconceived. Mr Ireland’s joint tenancy was a tenancy. It had terminated. He did not have a continuing tenancy at Crombie Terrace. Dorothy Ireland had her own tenancy.

[51] Finally as regards the provision concerning termination of a joint tenant’s interest in sec 13 of the 2001 Act, Mr Marney submitted that the words “may bring to an end that tenant’s interest in the tenancy by 4 weeks’ notice given to the landlord and each of the other joint tenants under the tenancy” was permissive and not mandatory; it did not say that this was the only way in which termination could be effected. Nor did it inhibit the other tenant or the landlord from waiving the requirement for notice.

(iii) response for the applicant

[52] In response Mr Ross invited the tribunal to heed the comments on termination of joint tenancies in Robson. As regards sec 11(8) of the 2001 Act, which had been drawn to Mr Marney’s attention by the tribunal, he submitted that it tended to suggest that signing a tenancy agreement at Balunie Drive did not, ipso facto, mean that the tenancy at Crombie Terrace had been brought to an end. Reference to the Council’s policy on the holding of two tenancies was of no assistance. There was nothing in the productions which confirmed it.

[53] As regards Mr Marney’s submission that the provisions in sec 12 of the 2001 Act were permissive rather than mandatory he argued that “may” sometimes meant “shall”. Looking at the section in its entirety it could not merely be permissive; the use of “except” made it exhaustive of the means of termination.

[54] While Mr Marney might say that “clearly notice was given” of termination, no evidence of any notice had been provided. Certain events had taken place but there was no evidence of termination. There was no evidence of what Mr Ireland’s intentions may have been. A significant difference from Boyle was that in that case notice had been given. There was a difference between reducing the period of notice and no notice being given. Another important distinction was that in Boyle there was no joint tenant.

Tribunal’s consideration

Assessment of witnesses

[55] The witnesses were both credible. Neither sought to exaggerate their evidence. So far as reliability is concerned, Ms Ireland had a limited recall of some important matters, such as whether she had signed a sole tenancy agreement for Crombie Terrace and whether she had been sent a new rent card. As to the former, she had no recollection of having signed or even seen such a form but did not assert positively that she had not signed one. As to the latter, she could not be sure but she thought she had probably been sent a new card. Her evidence was also vague in that she had no clear understanding as to whether her father had given up his tenancy of Crombie Terrace. That may have been because whether her father’s interest in that tenancy had terminated was a matter of law on which she could not comment but she certainly did not assert that there had been any positive intention on the family’s part that their father was retaining his interest in the Crombie Terrace lease. Likewise there were limits to what Ms Duthie could speak to reliably: while she was able to provide us with information as to the Council’s policy and procedure and her own role in making some of the key book entries, she acknowledged that she had not been a participant in the letting of either Crombie Terrace or Balunie Drive.

Resolution of matters of fact

[56] There is no significant conflict on matters of fact in this case. But there is a question as to what facts can legitimately be inferred from the agreed facts. In that regard we consider the following agreed facts as to the events of November 2007 to be significant:-

(a) That sometime between April and November 2007 Mr Ireland and his family decided that he needed some form of supported accommodation and that the house at Crombie Terrace was no longer suitable for his needs;

(b) That they therefore applied to the respondents for a transfer to suitable accommodation;

(c) That, the house at Balunie Drive having been identified as suitable, he signed a Scottish secure tenancy agreement in respect of it, went to live there and began paying rent for it;

(d) That the tenancy agreement for Balunie Drive (production R5/1) says: “This agreement does not terminate any existing tenancy”.

(e) That the move was intended, by him and his family, to be permanent;

(f) That he never resumed living at Crombie Terrace;

(g) That in or around December 2007 the respondents amended their records so as to show the applicant as sole tenant of Crombie Terrace, a process which included the preparation of a tenancy agreement in her name as sole tenant, which was, however, never signed by the applicant;

(h) That Mr Ireland made no rent payments in respect of Crombie Terrace once he had moved to Balunie Drive (although the significance of this fact is diminished by the fact that the applicant had been in the habit of paying the whole of the Crombie Terrace rent herself since May 2007 when her father was admitted to Liff Hospital); and

(i) That it is the policy of the respondents not to allow anyone the tenancy of more than one house.

We should explain why we have found that the tenancy agreement made out in her name for 4 Crombie Terrace was never signed by the applicant. It was her evidence that she could not remember having seen a form such as production 6. She did not positively assert that she had never signed such a form but, if she did, it is surprising that the respondents have not been able to produce it. Although it is possible that such an agreement was signed and then lost, the effect of the applicant’s evidence is that the more likely explanation is that it was never signed.

[57] We now consider what may properly be inferred from the foregoing facts

[58] The move to Balunie Drive was necessitated by Mr Ireland’s deteriorating health. He was suffering from dementia and it was getting worse. The family decided that he needed supported accommodation. Perhaps because of his condition, we have no record of what Mr Ireland’s understanding was of what was happening and whether or not he was giving up his tenancy of Crombie Terrace. What is not in doubt, however, is that, it was never intended that he should return there. Whilst it is not impossible that he intended to retain the tenancy of Crombie Terrace we have no evidence to that effect, as might have been provided by the applicant herself or by her sister Joan, who handled arrangements for the Balunie Drive tenancy, were it the case. Instead, the permanent move is suggestive of a giving up of the Crombie Terrace tenancy.

[59] That is certainly how the respondents understood it. It is not their policy to allow one person to be tenant of more than one property and there is no evidence of an exception being made here. Instead, their contemporaneous internal documentation – the “Key Book Entries” which are production 7 – is to the effect that arrangements were set up in such a way that Mr Ireland became tenant of Balunie Drive and his daughter became the sole tenant of Crombie Terrace. It appears that they regarded her tenancy as a new tenancy and an agreement with her as sole tenant under a tenancy commencing on 26 November 2007 (production R6/2) was filled in but never signed (or, if signed, lost).

[60] Of the foregoing facts, the only one which points to a different conclusion is the statement in the Balunie Drive agreement that it did not terminate any existing tenancy. This is a statement which appears in all three tenancy agreements produced. It appears, therefore, to be part of the standard printed form used by the respondents for Scottish secure tenancy agreements. It was not specially written in to this one at the behest of Mr Ireland or any of his family. Although it means that the signing of the agreement did not ipso facto terminate Mr Ireland’s interest in the Crombie Terrace lease, it does not conclusively determine that the old lease continued in force. It is only one of several facts, the others pointing to a different conclusion.

[61] In that state of affairs and in the absence of evidence to the contrary we consider it a necessary inference that what happened on 26 November 2007 was that Mr Ireland gave up his interest as tenant of 4 Crombie Terrace in exchange for a lease of 211A Balunie Drive.

Resolution of matters of law

[62] We take things chronologically. Our starting point is 30 September 2002, the date upon which Mr Ireland’s tenancy became a Scottish secure tenancy and, therefore, the “conversion date” for the purposes of the 2002 Order (2002 Order, art 2(1)).

[63] Article 4(1) of the Order provided, in effect, that, notwithstanding the fact that the tenancy had become a Scottish secure tenancy, the provisions of the 1987 and 2001 Acts would continue to apply subject to certain modifications with which we need not concern ourselves. For our purposes what matters is that the right to buy was preserved on the original terms, so far as discount was concerned, until the earliest of three events, being (a) the termination of the tenancy within the meaning of para (3) of art 4; (b) the assignation of the tenancy; or (c) the passing of the tenancy by succession other than to a person referred to in paragraph 2 of Schedule 3 to the 2001 Act. Until the earliest of these events the original discount provisions were to apply “in relation to that tenancy”. Paragraph (3) provides that, for the purposes of art 4, a tenancy is terminated if it is brought to an end under any of the circumstances listed in sec 12(1) of the 2001 Act.

[64] The phrase “that tenancy” must mean the tenancy then in existence. There is no other tenancy to which it could refer. That was Mr Ireland’s tenancy of 4 Crombie Terrace. The benefit of the favourable discount terms could not therefore extend to Mr Ireland in respect of a tenancy of a different house, nor to anyone else as a tenant of 4 Crombie Terrace (except by virtue of the succession provision of art 4(1)(c)).

[65] The next relevant point in time is 23 April 2007 when the applicant became a joint tenant of 4 Crombie Terrace along with her father. That was the result of a request by Mr Ireland and the applicant to the Council, a request which was rejected at the first time of asking because the respondents were not persuaded that Ms Ireland satisfied their residence requirement but granted on the production of further evidence.

[66] There is specific authority for such a procedure in sec 11(5) of the 2001 Act and when the request is consented to by the landlord the new person becomes a joint tenant with the original tenant or tenants. This procedure does not involve any kind of assignation, in whole or in part, of the original tenant’s rights although, where the original tenant has been sole tenant, it does involve giving up the right to exclusive possession. Thus use of the term “assignation” in the respondents’ documents is misplaced and the contention, contained in the respondents’ Senior Solicitor’s letter of 15 January 2013 (production R9/10), that what happened when the applicant became joint tenant was an assignation was wrong, as was acknowledged by him in his letter of 22 November 2013 (production 9/17). That letter also acknowledges, correctly, that the preserved right to buy continued to apply notwithstanding the addition of the applicant as a joint tenant.

[67] The next, and critical, point in time is 26 November 2007, when Mr Ireland’s tenancy of 211A Balunie Drive commenced. We have held above that, as a matter of fact, Mr Ireland gave up his interest in the Crombie Terrace lease at this time. In more technical legal language, he renounced his interest in the Crombie Terrace lease and entered a new lease for Balunie Drive. Renunciation of an interest in a lease, to be effective, must be accepted by the landlord. At common law such agreements need not be in writing but will not be binding until something happens on the strength of them. While matters “remain entire”, in the language of Paton & Cameron, either party can change his mind; Landlord and Tenant page 239. Matters no longer remained entire here once the lease of Balunie Drive had commenced.

[68] The question then becomes whether such a renunciation is effective to end a Scottish secure tenancy, given the requirements of secs 12 and 13 of the 2001 Act.

[69 ] Although it does not use the word, para (e) of sec 12(1) allows for renunciation by saying that a Scottish secure tenancy can be terminated by agreement but it requires it to be in writing.

[70] We heard no argument to the effect that parties are free to waive the requirement that the agreement be expressed in writing. It seems to us that a plausible argument could be constructed to that effect. However, the argument presented to us under para (e) was that the tenancy agreement for Balunie Drive constituted an agreement to terminate the tenancy of Crombie Terrace. But that cannot possibly be the case, given that the Balunie Drive tenancy agreement, like the others, contained the statement that “This agreement does not terminate any existing tenancy”. Accordingly the respondents’ argument under para (e) fails.

[71] Mr Marney’s main argument was addressed to para (f). This requires the tenant to give four weeks’ notice and sec 41 says that “notice” means written notice. There is in this case nothing which one would immediately recognise as a notice: nothing purporting to be notice of termination of the tenancy. Again Mr Marney relied on the tenancy agreement for Balunie Drive. It had, he said, the effect of informing the respondents that Mr Ireland wanted to give up his tenancy of Crombie Terrace. It was signed on 16 November 2007 and the new tenancy commenced on 26 November.

[72] Although the respondents clearly understood Mr Ireland to be giving up the tenancy of Crombie Terrace when he signed the agreement for Balunie Drive, we regard the attempt to treat this document as notice under para (f) as highly artificial. It says nothing at all to that effect and the argument runs into the same difficulty as noted in relation to para (e): it contains an express statement that it does not have the effect of terminating any existing tenancy. We therefore reject the submission that the new tenancy agreement serves as written notice of the intention to terminate the old.

[73] Mr Marney submitted that the respondents were entitled to waive insistence on notice. Paragraph (f) was conceived in their favour, so, on ordinary contractual principles, they could waive it. The submission was made in relation to the length of period of notice but if the respondents were entitled to accept a shorter period of notice than four weeks it must be the case that they were entitled to waive the requirement for any notice.

[74] Mr Marney’s submission was based on what was said by the (differently constituted) tribunal in Boyle v South Lanarkshire Council at paras [26] to [30]. There the tribunalthought a purposive approach to the interpretation of sec 12(1) appropriate and said that, in the context of the 2002 Order, what it was really concerned with was to make sure that the preserved right to buy could only be lost where the termination had been carried out lawfully; para [27]. It reasoned that paragraph (f) is conceived in favour of the landlord and that the landlord can, therefore, on ordinary contractual principles, waive insistence on it; para [26]. It pointed out that there is no reason of public policy why a landlord should not be able to do that: on the contrary, it would sometimes suit both parties not to insist on notice; para [28].

[75] That approach was based on three agricultural law cases, the English Court of Appeal case of Elsden v Pick and two Outer House Scottish cases commenting favourably on it, Kildrummy (Jersey) Ltd v Calder and Knapdale (Nominees) Ltd v Donald.

[76] What these cases discuss is whether the tenant could surrender or renounce his tenancy without having to comply with the apparently prescriptive requirements of the relevant legislation.

[77] The same question does not arise in this case since para (e) allows for renunciation. But the reasoning in these cases has broader application. It is relevant to the question as to what extent landlords and tenants under statutorily governed leases are entitled to forego compliance with apparently prescriptive statutory requirements and still bring a lease to an end lawfully. It therefore invites closer examination. We acknowledge that these cases were not the subject of direct submissions by counsel but the case of Boyle was and these cases were central to the tribunal’s reasoning in Boyle. They are therefore legitimately before us and we have not thought it necessary to invite additional submissions on them.

[78] Elsden v Pick concerned a notice of intention to quit the holding given by the tenant. It was for a period less than the 12 months required by sec 23(1) of the Agricultural Holdings Act 1948. It was nevertheless accepted by the landlord. The tenant then tried to go back on it. He argued that sec 23(1) precluded the efficacy of any notice to quit which gave less than 12 months’ notice. The section was in the following terms:

“A notice to quit an agricultural holding or part of an agricultural holding shall (notwithstanding any provision to the contrary in the contract of tenancy of the holding) be invalid if it purports to terminate the tenancy before the expiration of 12 months from the end of the then current year of tenancy”.”

The Court of Appeal held that sec 23(1) did not preclude the landlord and tenant from agreeing that a notice for less than 12 months should take effect as a valid notice and that, on the evidence, the parties had so agreed. In the course of his judgement Shaw LJ said this (at page 905):

“It is clear that [sec 23(1)] is designed principally to protect the tenant farmer from peremptory or unduly prejudicial ejectment on the part of the landlord. Nonetheless it serves also to protect a landlord from the abandonment of a tenancy in circumstances which may cause a discontinuity in cultivation or a lapse from proper standards of husbandry. Thus the time for the ending of a tenancy is a matter of common interest both to a landlord and to his tenant. It may suit them both to determine a tenancy without waiting for what may be as long as nearly two years to bring it to an end. No statute could have so absurd an intention as to constrain a landlord and a tenant of an agricultural holding to remain bound in that relationship at a time when neither desires that it should endure. If they are in accord, can it matter whether they demonstrate that accord by an agreement to surrender or an agreement to accept short notice?”

[79] Kildrummy concerned secs 21(1) and 22(1) of the Agricultural Holdings (Scotland) Act 1991 which were (and substantially still are) in the following terms:

“21(1) Subject to section 20 of this Act and to subsections (6) and (7) below a tenancy of an agricultural holding shall not come to an end except by operation of a notice which complies with this subsection notwithstanding any agreement or any provision in the lease to the contrary.

22(1) Where not later than one month from the giving of a notice to quit an agricultural holding … the tenant serves on the landlord a counter-notice in writing requiring that this subsection shall apply to the notice to quit, subject to subsection (2) below and to section 25 of this Act, the notice to quite shall not have effect unless the Land Court consent to the operation thereof”

The landlords of an agricultural holding served notice to quit under sec 21(1) and the tenant served a counter-notice under sec 22(1). While the case was pending in the Land Court parties came to a settlement whereby the lease was to be renounced. The tenant’s agents informed the Land Court that the case had been settled extra-judicially but before the case had been finally disposed of their client changed her mind. The landlords raised an action in the Court of Session seeking to enforce the agreement. The tenant argued that it was unenforceable because sec 21(1) could not be contracted out of and, the jurisdiction of the Land Court having been invoked under sec 22, termination of the lease could not be effective without the consent of that court. It was held that on the facts of the case sec 21(1) had not in fact been breached and the issue before Lord Marnoch became confined to sec 22(1), of which he said this (at 891-892):

“Having studied s 22(1), I am constrained to agree with counsel for the defender that no construction can be placed on its terms other than that the consent of the Land Court to the operation of the notice is, at that stage, required. But I am equally of opinion that there is no consideration of public policy which at that stage precludes a waiver by the tenant of strict compliance with those statutory provisions.”

His Lordship went on to hold that sec 22(1) did not preclude settlement of the case by the parties and that to hold otherwise would have meant that the tenant had to litigate the matter “to the bitter end”. Of Elsden v Pick his Lordship said this:

“In that case the Court of Appeal in England held that there was nothing in s 23(1) of the Agricultural Holdings Act 1948 to preclude the recipient of a notice to quit waiving the requirement that it should be given at least 12 months prior to the intended date of termination of the tenancy. The case is thus concerned with statutory provisions rather different from those with which I am dealing in the present case. Even so, I find it instructive that the court was prepared to invoke the principle of waiver in what might be described as a closely allied field of legislation. I also observe, in passing, that in the reasoning of the court there appears to have been an underlying assumption that an agreement to surrender the tenancy would have been perfectly valid notwithstanding the provisions of s 3 of the 1948 Act which was then the approximate equivalent of s 24(1) of the Agricultural Holdings (Scotland) Act 1949. To that extent it is perhaps unfortunate that this case was not before the court tin Morrison v Rendall.

[80] Before coming on to Knapdale (Nominees) Ltd v Donald it is convenient to say something about the case of Morrison’s Exrs v Rendall, referred to in the foregoing quotation. It concerned sec 24(1) of the Agricultural Holdings (Scotland) Act 1949, the fore-runner of sec 21(1) of the 1991 Act. It read:

“Notwithstanding the termination of the stipulated endurance of any lease of an agricultural holding, the tenancy shall not come to an end unless, not less than one year nor more than two years before the termination of the lease, written notice has been given by either party to the other of his intention to bring the tenancy to an end. The provisions of this sub-section shall have effect notwithstanding any agreement or any provision in the lease to the contrary.”

The case was a Sheriff Court action whereby landlords attempted to enforce an undertaking signed by the tenant to remove from the holding at the ish. The sheriff allowed a proof before answer and the defender appealed. The Second Division held that the pleadings did not disclose an agreement between the parties for the termination of the lease but that, even if they had, such an agreement would not have been enforceable against the tenant’s will, because of the provisions of sec 24(1). Of these provisions Lord Justice-Clerk Ross said (at page 73):

“In my opinion, the plain words of this subsection mean that an agricultural tenancy shall not come to an end unless one of the parties has given written notice to the other in terms of the subsection. Of course, parties may circumvent these provisions by one of them renouncing the lease, or by their agreeing to a new lease in substitution of the old lease. That apart, I am of opinion that the provision of sec 24(1) clearly apply to all leases, and that it is not therefore open to parties to terminate a lease in the manner suggested by the pursuers here, that is, by an agreement.”

Similarly, at page 75, his Lordship said this:

“I appreciate that in practice parties may agree to terminate the tenancy without notice to quit having been given in terms of the subsection, and if they both act upon such agreement it will no doubt be effective. Likewise if such an agreement is made and one party acts upon it, the other party may be personally barred from founding on the provisions of the subsection. Apart from that, I am of opinion, that an agreement made in contravention of the plain provisions of the final sentence of sec 24(1) would not be enforceable.”

[81] Knapdale (Nominees) Ltd was about whether the lease of an agricultural holding had been renounced by the tenant. It was held, on the evidence, that it had not been but Lord Kingarth had to consider whether such renunciation was in any event possible given the terms of sec 21 of the Agricultural Holdings (Scotland) Act 1991, which, so far as relevant, are as follows:

“(1) … a tenancy of an agricultural holding shall not come to an end except by operation of a notice which complies with this subsection notwithstanding any agreement or any provision in the lease to the contrary.

(3) A notice complies with subsection (1) above if – (a) it is in writing; (b) it is a notice of intention to bring the tenancy to an end; (c) where the notice is to take effect at the termination of the stipulated endurance of the lease, it is given not less than one year nor more than two years before that date; (d) in the case of a lease continued in force by tacit relocation, it gives not less than one year nor more than two years’ notice.”

No such notice had been given. The defender argued that he could not, therefore, have competently renounced the lease even if he had wanted to. In dealing with that argument Lord Kingarth said this (at page 629 D-E):

“… as regards the arguments presented to me as to the proper construction of s 21, I am inclined – although not without some hesitation – to prefer those of the pursuers. My hesitation arises in particular from the peremptory nature of the language of s 21. The construction advanced by the pursuers, however, would avoid the apparent absurdity that even if the parties agreed to renounce and implemented that agreement, one party could at some future date seek to set it aside as invalid.”

And, in the next paragraph, this:

“I would wish to add however that it seems to me to be clearly arguable in any event (in the light of the general approach of the court in Elsden v Pick) that a present agreement [original emphasis - his Lordship was distinguishing an agreement which was to have immediate effect from an agreement which was to have effect at some point in the future] between parties to waive such rights to notice etc as might be given by the lease, such as by agreeing to renounce the lease with immediate effect, would not fall foul of s 21. As is observed in Muir Watt and Moss at p 272, …, the reasoning of Brightman and Buckley LJJ in the case of Elsden appears to be securely based on the distinction between creation of a tenancy agreement shorn of some aspect of security of tenure (which is prohibited), on the one hand, and, on the other, enforcement of a subsequent decision by a party who is fully protected to forego some aspect of the protection as part of a contract. I consider that counsel for the pursuers was right to observe that the observations in Morrison v Rendall to the effect that in general the terms of s 24 of the 1949 Act prevented parties from contracting out its provisions at any time (and not simply ab ante) might well have been different if the case of Elsden had been before the court.”

[82] What emerges from these cases is that landlords and tenants of statutory leases can lawfully terminate these leases by means other than those prescribed, however peremptorily, in the relevant legislation provided there is no reason of public policy to prevent it. Even what was said by Lord Justice-Clerk Ross in Morrison v Rendall acknowledges that possibility.

[83] The tribunal’s discussion of these cases in Boyle was obiter since the members preferred to base their decision on the existence of documentation amounting to a written agreement for termination under para (e) (see para [29]). That does not arise on the facts of this case. However, we do not see why the reasoning in these cases should not also apply to the legislation with which we are concerned. On the contrary, there is good reason why it should apply. It reflects the reality of the situation – Mr Ireland had in fact renounced his interest in the lease – and it involves the absurdity of tenancy agreements remaining valid for, possibly, years after events which disclose that the parties intended them to end.

[84] Applying that approach, therefore, in a situation such as we have here – when we are satisfied that the tenancy has de facto been terminated by agreement and superseded by a different tenancy and it suited both parties to achieve that result expeditiously – what interest, of either party or wider public policy, would insistence on notice (or, for that matter, insisting on putting their agreement in writing) serve? The answer is “none”. We therefore hold that para (f) must be read subject to a qualification, which would have been well known to Parliament when it was enacted, that a landlord is entitled to forego notice and agree the termination of a tenancy without it. The termination provisions of the Act, as with the Agricultural Holdings Acts under discussion in the foregoing cases, are there to protect the security of tenure of the tenant not to impose a straitjacket from which neither landlord nor tenant can escape. Where no prejudice to the tenant arises there is no merit in insisting on compliance.

[85] The position here is complicated by the fact that there was a joint tenant. . In that regard Mr Ross urged us to have regard to what was said about the rights of joint tenants by Robson at para 12-09. It is dealing with the common law position and is as follows:

“At common law, joint tenants have distinct rights to the subjects pro indiviso which can be separately transmitted or assigned without affecting the entitlement of the other tenant. This does not mean, however, that one joint tenant can renounce his entitlement to the joint tenancy and thereby leave the remaining tenant as a sole tenant. Renunciation requires the agreement of the landlord and tenant. It would not be possible for a contract of lease involving joint tenants to be converted to a different contract involving a sole tenant by the actions of a single tenant and the landlord.”

On the facts of this case, given that the applicant and her sister made the arrangements for their father’s move to Balunie Drive and that she assumed sole responsibility for the tenancy of Crombie Terrace, although she may never have thought of it in these terms, we infer that she consented to her father giving up his interest. Had she not been so minded she would surely have taken steps to ensure that her father remained as tenant, albeit he did not live there. So any common law requirement for consent is satisfied.

[86] What of sec 13? In our view sec 13 is there as a mechanism whereby a joint tenant can leave the tenancy, regardless of the landlord’s or his joint tenants’ consent. From that point of view it is conceived in favour of the tenant who wishes to depart. But it is also conceived in the interests of the landlord, who is given time to adjust his records, and the remaining tenants, who are given time to make arrangements to make up any shortfall in rent. That being so, on the principles already discussed, the right to notice can be waived.

[87] Although the timeline for the move to Balunie was not explored in detail in the evidence, it is safe to conclude that the decision that Mr Ireland was going to have to leave Crombie Terrace was taken much earlier than four weeks before he signed the lease for Balunie Drive. The applicant knew at every stage what was being planned; she was one of the people planning it. She knew from an early stage that she was going to be solely responsible for the obligations of tenant of Crombie Terrace. So she had notice. To insist on that notice being put in writing is unnecessary and, in fact, highly artificial. It is not something anyone in the applicant’s position would have expected. To conclude that because it was not done Mr Ireland remained a tenant at Crombie Terrace is not only unnecessary to protect the applicant’s own interests as tenant but produces an artificial result given the whole factual context of the time. Accordingly we hold that the applicant waived her right to written notice under sec 13, as did the respondents.

[88] Our conclusion on the applicant’s primary case is, therefore, that Mr Ireland was no longer a tenant of Crombie Terrace at the time of his death. That case therefore fails.

The applicant’s esto case

[89] The applicant’s esto argument is that even if Mr Ireland’s interest in the lease did come to an end in November 2007 the preserved right to buy continued to attach to the tenancy. “That tenancy” in art 4(1) was, Mr Ross argued, a reference to the tenancy of Crombie Terrace and was not confined to Mr Ireland’s interest. While that tenancy continued in existence the preserved right to buy could be enjoyed by the tenants whomsoever they were and whether or not they included Mr Ireland.

[90] The argument that Mr Ireland’s renunciation of his own interest did not terminate the joint tenancy derives some support from the fact that the tenancy agreement prepared in his daughter’s sole name expressly states that it is “following upon and continuing the tenancy of the house by Robert Ireland, which commenced on 23/04/2007” and that, in turn, the agreement signed when the joint tenancy started says that it is “following upon and continuing the tenancy of the house by Robert Ireland, which commenced on 22/06/1992”. There is thus a clear thread of continuity going back to 1992.

[91] But this issue has to be determined by what is covered by the phrase “that tenancy” in art 4(1). Mr Ross invites us to read it as meaning “that tenancy, whomsoever the tenant may be at any time”. Not only is that not what the provision says but it produces results unlikely to have been intended by Parliament. It is the tenant in place on the conversion date who has earned the preserved right to buy. Whilst it might be thought quite equitable that a member of that person’s family should benefit from the right, there would be no limit to who may become entitled if other joint tenants are taken in under the lease. The result could be that someone with no family connection to the original tenant became entitled to the preserved right.

[92] Moreover, the whole purpose of art 4 suggests that this was not what was intended. In an article that, amongst other things, seeks to limit succession after death it would seem a strange way in which to attempt to establish the transmission during lifetime of a right to preserved terms. In our view that is not the effect of the article. Mr Ross’s argument distinguishes between the terms “a tenant” and “that tenancy” as used in art 4(1) and he points out that art 4(1) says that the preserved terms are to apply in relation to the tenancy, not the tenant. Mr Marney says that what the section contemplates throughout is Mr Ireland’s interest and that it has been terminated. We agree with Mr Marney. In our view the effect of the term “that tenancy” is to emphasise that it is the tenancy then in place and as then constituted that is being referred to, not some other future tenancy nor some future tenant. We accordingly reject the applicant’s esto case

Decision

[93] Mr Ross invited us to determine and declare that the applicant, Ms Ireland, is entitled to purchase the property at 4 Crombie Terrace under the terms of the preserved right to buy scheme. Whilst that would be perfectly equitable in the circumstances of this case we consider that the legislation, construed purposively, does not permit it. Ms Ireland is entitled to purchase only on modernised terms. That is a result which would, of course, have been avoided had steps been taken to purchase the house while Mr Ireland was still tenant but, understandably, that would not have been the applicant’s focus in the few months for which she and her father were joint tenants and his health was deteriorating.

Comment

[94] Before departing from this case we wish to say something about the quality of the respondents’ documentation and processes. These were poor from a number of points of view. In the first place the documentation was incomplete. There was no continuous documentary trail starting with the Ireland family’s first enquiry as to a suitable house for Mr Ireland and following all the way through to his death. For example there was nothing to explain why the single occupancy agreement in the name of Dorothy Ireland had never been signed, if indeed that was the case. Secondly, such documentation as was produced was often badly drafted. Two examples are particularly noteworthy. One is the use of the term “assignation” for what was not an assignation. The other is the following statement, which appears to be standard on their tenancy agreements: “This agreement does not terminate any existing tenancy. the (sic) terms and conditions of this Agreement replace the terms and conditions under any other Tenancy Agreement that you had with us, immediately before this Agreement came into effect, in relation to the house.” What does that apparently contradictory statement mean? It could hardly have been more confusingly expressed.

[95] Procedurally, the respondents failed to take a simple step which, had it been taken, would have put the matter beyond doubt. They could have had a written agreement completed in terms of para (e), incorporating the joint tenant’s consent and waiving any right to notice. If it is the case that such an agreement was completed it has obviously been lost which, again, does not reflect well on the respondents’ record-keeping systems.

[96] We realise, of course, that the respondents must process thousands of housing transactions annually and that employees in their Housing Department will often be under pressure from tenants, or applicants for new tenancies or transfers, to get things done quickly. That is a situation likely to lead to the taking of shortcuts although it does not explain the use of poor English and punctuation on standard forms. For the avoidance of doubt this criticism is directed at those who design and manage the respondents’ forms and systems, not at the employees who have to use them and specifically not at Ms Duthie. There is no suggestion that she performed her duties otherwise than perfectly properly.

Expenses

[97] We heard no submissions as to whether expenses were being sought and, if so, whether they should simply follow success. We have therefore allowed a period for written motions and submissions to be lodged.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 29 October 2015

Neil M Tainsh – Clerk to the Tribunal