The Tribunal heard debate on legal issues arising in relation to eight applications under Section 21(1) of the Land Registration (Scotland) Act 1979 against the same landowners. The applicants occupy beach huts on a strip of ground beside the seashore and claim to be ‘tenants-at-will’ within the meaning of the Act. The respondents resist that claim and submitted, on a number of grounds, that the applications were not relevantly stated and lacked adequate specification and should not be allowed to go to proof.
The Tribunal has decided to dismiss these applications. On an application of Section 20(8) of the Act of 1979, which defines ‘tenant-at-will’ for the purposes of this jurisdiction, the Tribunal does not consider that any of the discrete legal propositions advanced by the respondents succeeds. However, the Tribunal does view the provisions as requiring established tenure which is permanent in its nature. The applicants accept that the rents have changed from time to time. In the absence of explanation, this appears inconsistent with a permanent tenure and we consider it to be fatal to these applications. We have considered whether it would be appropriate to give the applicants a further opportunity to amend on this matter but have decided against that in the circumstances. Certain other reservations which we have about the adequacy of specification of the applicants’ case are not serious enough to warrant dismissal.
The eight applications and Answers were substantially similar but not identical. All the applicants were represented by Luise Locke, Advocate, instructed by Messrs Primrose and Gordon, Solicitors. The respondents were represented by Michael Upton, Advocate, instructed by Messrs Lindsays, Solicitors. Mr Upton had helpfully provided a Note of Arguments, with 12 paragraphs of submissions, some of which were applicable only to some of the applications. Parties had agreed, in relation to 4 of the submissions (Nos. 9 to 12) that if the applications were otherwise allowed to proceed the applicants should be given time to amend in response to these submissions. Further, Mr Upton indicated, without objection, that he did not wish to advance two of the submissions (Nos. 4 and 7) at this hearing but reserved them for possible future consideration. In relation to one of the submissions (No. 8), having heard Mr Upton’s oral submission, Ms Locke moved, again without objection, a specific amendment applicable in all 8 applications, which the Tribunal allowed and Mr Upton accepted as meeting the submission. In relation to these procedural matters and to this hearing itself, parties’ positions on expenses were reserved. The Tribunal has accordingly had to consider Submissions Nos. 1, 2, 3, 5 and 6 (in this Opinion, (i) to (v)).
Land Registration (Scotland) Act 1979
Report of the Royal commission on Housing in Scotland, Cmnd 8731, 1917
Report of the Scottish Leases Committee, Cmnd 8656, 1952
Assessor for Glasgow v Gilmartin 1920 S.C. 488
McCann and Anr v Anderson 1981 S.L.T. (Lands Tr.) 13
Ferguson v Gibbs 1987 S.L.T. (Lands Tr.) 32
Conochie v Watt, LTS/TW/1992/1, Lands Tribunal for Scotland, 7 September 1993
Maclean v Kershaw 1993 SLCR 145
Paton & Cameron, Landlord and Tenant, pp 66-69
Gordon, Land Law, 2nd Ed’n, para 19-16
Stair Memorial Encyclopedia, vol 12 para 1131, vol 13, para 211
McAllister on Leases, 3rd. Ed’n, p 7
Reid, Property, para. 72
Macphail, Sheriff Court Practice, 2nd Ed’n, para. 9-26
The eight huts are situated on an area or strip of ground lying above and immediately contiguous to the high water mark along the shore of Rascarrel Bay and within the boundaries of Rascarrel Farm at Auchencairn, Castle Douglas. They are said to have been erected on varying dates between about 1935 and 1958 (in one case, subsequently extended, and in another case twice rebuilt). The applicants aver as follows (with slight individual variations) regarding their tenure:-
“The Applicant has owned and occupied the Hut as his weekend and holiday home. Historically the eight huts have been owned and passed on to local Dumfries and Dalbeattie residents and family. The applicant is by custom and usage the occupier of the land on which Hut  was … [erected by his predecessor and/or acquired by him for value]”
They aver that the subjects are entered on the Valuation Roll and that they are liable to pay rates annually on them. The respondents have been heritable proprietors of Rascarrel Farm since 1997, but the farm appears to have been in the family’s ownership at least since about 1964. The respondents’ principal position is that the subjects have, since the huts were placed on them, been let on yearly leases for changing rents. They aver that the rents were in 1964 either £5 or £10 per annum, that the rents were subsequently increased and that there have been 6 rent increases, taking the rent from £40 to £150, since 1990. The applicants deny that averment, but agreed at the hearing, for the purposes of the debate, that the ground rents have changed from time to time. They also aver that “the ground rent for the year to 31 January 2004 was £150” and that the respondents have demanded an increased ground rent of £500 as part of a phased increase to £1,000. The respondents had also sought to record the arrangements in the form of written leases reducing the arrangements to annual lets. The applicants had not agreed to either of these things. The applicants aver that there had never been any written agreement regulating the stances of the huts. Nor was there ever any provision regarding ish. In December 2004 the respondents served notices to remove. The applicants then brought these applications which, if successful, would result in their being able to purchase the respondents’ interests in the ‘tenancy land’ on statutory terms under the provisions of the 1979 Act.
Questions as to whether statutory provision might be made for the conversion of leaseholds acquired for building purposes into permanent rights have been considered from time to time. In the context of such consideration, both the Royal Commission on Housing in Scotland, 1917, and the Report of the Scottish Leases Committee, 1952, summarised the evidence before them about what was described as the informal tenure known as tenancy at will. The 1917 Report, at Para. 1620 onwards, narrated that there were certain districts in Scotland where ‘houses and other buildings have been erected on sites to which the building tenants have no proper legal right’, especially in north-eastern fishing villages ‘but it also applies to other parts of Scotland’. A description of what the Commission had been told about certain specific cases in Aberdeenshire, Banffshire, Ross-shire and Sutherlandshire followed. The 1952 Report explored the position in slightly more detail, with a summary, at Para. 32, in the following terms:-
“The term ‘tenancy at will’ is not a nomen iuris of Scots law and is used for convenience to describe a practice which is found in certain parts of Scotland, notably in the fishing villages of the north-east coast. In these villages it is common to find that land has been supplied by a landowner, usually for a nominal rent, for the erection of a house by a ‘tenant’ without there being any deed to regulate the rights of the parties. The landowner allows the ‘tenant’ to erect a house on a piece of land belonging to the former, and the sole record of the agreement is an entry in the estate books of the landowner. It would appear that the person who erected the house is a lessee of the property holding under an implied annual lease from the owner of the estate. In practice, however, the occupants of such house are usually able to behave as if they were full owners and in matters such as the disposal of the subjects to exercise the full rights of a person holding a valid and recorded title.”
This report recorded that the evidence received was broadly to the same effect as that described in the earlier report. The ‘unusual system’ was said to operate satisfactorily but it was understood that most tenancies at will ‘were granted many years ago’. As this Report put it, the tenure was ‘a form of the old “kyndnes”, a tenure once of sufficiently general use for it to be defined in Jamieson’s Dictionary of the Scottish Language as apparently the right on which a man claimed to retain a farm or possession which his ancestors had held and he had himself long tenanted’. Kindly tenancies had been described in Bell’s Principles (10th. Ed’n, Bk II, Pt I, para. 1279), in a passage under the heading, ‘Rentallers and Kindly Tenants’.
Tenants-at-will received some statutory recognition in the Housing (Financial Provisions) (Scotland) Act, 1978, Sched. 2, in connection with housing grants, but without any statutory definition.
Sections 20 to 22 of the 1979 Act established, for the first time, a procedure whereby tenants-at-will are entitled to purchase, on statutory terms, the landlord’s interest in the land subject to the tenancy-at-will.
Section 20(8) provided as follows:-
“(8) In this section and in sections 21 and 22 of this Act, ‘tenant-at-will’ means a person-
(a) who, not being-
(i) a tenant under a lease;
(ii) a kindly tenant; or
(iii) a tenant or occupier by virtue of any enactment,
is by custom and usage the occupier (actual or constructive) of land on which there is a building or buildings erected or acquired for value by him or any predecessor of his;
(b) who is under an obligation to pay a ground rent to the owner of the land in respect of the said land but not in respect of the building or buildings on it, or would have been under such an obligation if the ground rent had not been redeemed; and
(c) whose right of occupancy of the land is without ish.”
This was the first statutory definition or description of tenants-at-will. The 1979 Act did not offer any definition of ‘kindly tenants’, for whom different provision enabling recording or registration of their interests was made. Section 20(8)(a)(ii) was in fact repealed by Schedule 13 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000, but the provision otherwise stands.
Section 21(1) of the 1979 Act conferred jurisdiction on the Tribunal to determine any question whether a person is a tenant-at-will, as well as certain other issues which might arise, for example the extent or boundaries of the land subject to the tenancy-at-will. The Tribunal has given decisions on the existence of tenancies-at-will in only a small number of cases. In McCann and More v Anderson(1981) and Conochie v Watt (1993), the particular subjects were admittedly within localities in the north-east in which there was a local custom and usage of tenancies-at-will. In Ferguson v Gibbs (1987), a tenancy-at-will on the island of Arran was upheld, but the land-owner’s argument there was on the issue of occupation. In Maclean v Kershaw (1993) the Scottish Land Court had to decide whether a tenancy-at-will, as opposed to a cottar tenancy, existed at Leurbost on the Isle of Lewis, and decided, for a number of reasons, that it did not. We were not referred to the decision of any other court on the question whether a tenancy-at-will existed.
Mr Upton’s submissions were as follows:-
(i) As a matter of statutory construction, the provisions, being provisions conveying a unilateral right to a conveyance of subjects in the ownership of the landlord, were to be construed, in dubio, against compulsory expropriation. Stair Encyclopedia, Vol. 12, para. 1131. The Tribunal should be chary of giving a broad interpretation when the effect would be expropriation. Mr Upton accepted that the provisions of the Human Rights Act 1998 did not add to this.
(ii) Holdings to which Section 20(8) applied existed only in the few parts of Scotland where it had been acknowledged from time immemorial that this very unusual type of tenure existed. Neither Auchencairn in particular nor Kirkcudbrightshire generally was such an area. It was not the intention of the Act to recognise it in new areas. This was a form of tenure which existed only in communities or settlements, and the description of 8 huts on a strip of land was not a description of a locality. The applicants, on whom the onus lay, did not offer to prove the contrary. The applications were therefore irrelevant. Reference was made to the 1917 and 1952 Reports; Paton and Cameron, pp 68-69; Gordon, para. 19-16; Stair Encyclopedia, Vol. 13, para. 211; McAllister, p. 7; Conochie v Watt, at pp 11, 12, 17, 21, 22-24; Maclean v Kershaw, at pp 157-8, 162-3.
(iii) A property could only be the subject of a tenancy-at-will if it has been the subject of such tenure by custom and usage pre-dating ‘modern times’, as distinct from ‘time immemorial’. It was not a question of degree as to what was modern: rather, what was meant was that the date when this tenure began to be recognised could not be identified. The applicants had only averred that the huts had been in existence and occupied since, variously 1935 to 1958. They would have needed to show that this was already the position in 1935. Again, there being no relevant averments on the length of time, the applications were irrelevant. Reference was made to Conochie v Watt and Maclean v Kershaw, as above; and McCann v Anderson, at page 16.
(iv) It was inconsistent with a tenancy-at-will for the rent to be subject to increases. This followed from the nature of the tenancy, viz. without ish: Conochie, at p 9. The tenure shared some of the features of a feu, in that it was a holding, short of full ownership, allowing the occupier to enjoy the fruits indefinitely. The reddendo was fixed for all time. Even if it was possible, as a matter of law, for there to be a qualifying custom and usage, which included at least some changes in the rent, clear averments would be required on this aspect. Pleadings which disclosed only that there had been increases, without more, were not sufficient.
(v) In relation to three of the applications, concerning Huts 1, 2 and 7, the applicants’ failure to answer the respondents’ averments that the structure on the land were not ‘buildings’, matters within the applicants’ knowledge, rendered their pleadings lacking in candour. Mr Upton explained that the respondents understood that these three huts resembled garden-hut type structures which were sold assembled, or perhaps ‘flat-packed’, and could therefore easily be removed. Although questions of intention, and for whose benefit the structure was erected, were relevant, there was a necessary element of permanence: McCann v Anderson ; Conochie v Watt. The Tribunal should not be satisfied that there was a case to go to proof without the respondents’ averments on this being answered in the pleadings.
Ms Locke’s reply was as follows:-
(i) On construction, Mr Upton’s approach was not contradicted, but the Act was clear and admitted of no doubt.
(ii) There was nothing in the Act which confined tenancies-at-will to the established areas. There had been no suggestion in the Reports, nor in Paton and Cameron, that they were restricted to the areas mentioned. The reference to this in Conochie v Watt at page 12 went too far. Reference was also made to Reid, at para. 72, footnote 9, where it was indicated that the history of tenants-at-will seemed not to have been researched; and to Ferguson v Gibbs. Further, the Act did not require any ‘local’ custom. Such a requirement had been deliberately omitted so that this was not tied to local custom in any way. Thus, the custom established with one occupier of one hut could be sufficient.
(iii) The applicants or their predecessors had been occupying for in excess of 50 years, since (in some cases) before the 1952 Report and the 1979 Act, and for a period comparable to that in Ferguson v Gibbs. The Act had no temporal restriction. ‘Custom and usage’ would differ vastly from one case to another. The Tribunal had to satisfy itself from all the surrounding circumstances: Conochie v Watt, p. 16. The pleadings did indicate that there was no ish, and the tenure had continued through changes of both land-owners and tenants. There was no lease and no provision for an ish.
(iv) Ms Locke suggested that the rental increases averred by the respondents appeared to coincide with changes of ownership, or that rents had only been raised successfully under the family which currently had the farm. This was consistent with the previous establishment of a tenancy-at-will which only those owners had attempted to change. A tenancy-at-will could not be displaced by agreement. Another possibility was occasional consensual small rent increases, again particularly where these coincided with changes in ownership of the land. Therefore, changes in the rent were not necessarily inconsistent with tenancies-at-will. Reference was made to Maclean v Kershaw at pp 158, para. 2, and also 155-7, where different annual rents had been noted but this had not been considered to be fatal to the existence of a tenancy-at-will.
(v) The question whether a structure was a ‘building’ was a matter for proof. Ms Locke accepted that removeability without damage was a significant factor, but this was subject to the question of intention as to permanency. Reference was made to McCann v Anderson, at page 15, and Assessor for Glasgow v Gilmartin, at page 494. Moreover, the averments in relation to tracks, or lack of them, leading to huts 1 to 4, were consistent with their not being removeable.
Mr Upton replied on a few points. On (ii), he directed our attention to the situation recorded in Ferguson v Gibbs, at page 33, with regard to the arguments actually advanced in that case. In any event, Arran was within the Highlands and Islands and therefore fitted the geographical description at para. 74(2) of the 1952 Report. On (iii), again, Ferguson v Gibbs did not assist the applicants. A reference to Reid at para. 72 was added. Mr Upton sought to adopt a suggestion by the Tribunal that the applicants had not averred any permanent arrangement. There were no averments about the transfer arrangements, as opposed to the fact of transfers of the huts. On (iv), the issue as to rent increases had not arisen in Maclean v Kershaw, because Leurbost had not been set up as a locality in which tenancies-at-will were to be found. If the appellants established tenancies-at-will, they had security which enabled them to resist rent increases: assuming, therefore, that tenants acted to protect their interests, rent increases were inconsistent. At all events, this position was so extraordinary that one would expect to find the situation clearly explained. Ms Locke’s suggestion that the increases might be attributable to changes in ownership was a speculative gloss. On (vi), Mr Upton did not accept that Assessor for Glasgow v Gilmartin provided the correct test for these cases. The applicants had failed to explain their position on this issue. Reference was made to Macphail, para. 9-26.
The Tribunal allowed Ms Locke a final word, particularly on a matter which had arisen in the discussion of the alleged inconsistency of rent increases. Ms Locke stressed that she did not accept that if there was an established tenancy-at-will, the tenant had such security as would enable him to resist rent increase proposals. The whole point was that it was only the provisions of the 1979 Act which provided a form of protection to tenants-at-will. Their holding was, as the name implied, otherwise at the will of the landowner, so that they were not, for example, in a position to defend against removal proceedings.
It has been said that trying to understand what a tenancy-at-will is is like ‘trying to hold water in your hand’ (Conochie v Watt, at page 11). By its very nature, this form of land tenure is not defined in any agreement and its existence or otherwise depends on all the facts and circumstances. Its features may vary from one locality to another. As will be seen, the Tribunal finds it difficult, particularly having regard to the wording of the Act, to uphold the specific legal propositions advanced by the respondents with regard to locations in which tenancies-at-will are found, existence since time immemorial and rent increases. From these considerations, it might seem that the applicants are entitled to a full hearing at which all the relevant evidence could be considered.
On the other hand, on any view, as Ms Locke agreed in response to a question from the Tribunal, tenancies-at-will are highly uncommon. The onus is on the applicants and the respondents are entitled to fair notice of the way in which the applicants propose to show that this highly unusual form of tenure exists at a location which is nowhere near to locations where it has been known to exist and in circumstances which might be thought at least somewhat different from the circumstances described in the 1917 and 1952 Reports and the textbooks. Without in any way pre-judging what the position on the evidence might be, the Tribunal is concerned that, on paper, the applications as adjusted in response to the respondents’ Answers which intimated pleas to the relevancy and specification are distinctly thin on detail. There is nothing specific about recognition, or about how the arrangements work, in short, how they add up to a tenancy-at-will rather than, as the respondents would have it, simply a situation in which yearly leases have been renewed with changing rents.
Generally, there appears to be a sharp difference of approach between the parties, which difference is perhaps crystallised in their contrasting views as to the permanency, or security, attaching to tenancies-at-will. The applicants aver that there has never been any provision regarding ish, and in submission Ms Locke pressed the view that tenancies-at-will were essentially insecure, so that the tenant could be removed at any time. The purpose of this statutory provision was to provide protection against such insecurity. The respondents, on the other hand, present tenancies-at-will as in the nature of permanent arrangements, albeit with the insecurity of having no written title. The references in the reports and textbooks are, say the respondents, references to highly unusual situations in which, however the arrangement started (that being lost in the mists of time) they have come to have a form of permanency enabling the tenants to be ‘usually able to behave as if they were full owners’, as the 1952 Report put it. On that view, the applicants have to be able to show that they are not simply in the same position as insecure yearly tenants of the land: they have to establish that they possess with some degree of recognised permanency arising out of the fact that their tenure is without limit of time.
We do not consider that we require to, or should, express a view on the legal security, but for these statutory provisions, of tenants-at-will, i.e. whether a tenant-at-will who has paid the rent can defend an action of removing. The parties seem to differ on that. Both views may be possible. Perhaps a customary permanency is not good enough to defend against removing, but there is also attraction in the view that a tenant-at-will incurs an irritancy if he fails to pay the rent but is otherwise recognised as secure. Perhaps another possibility, since it is recognised that tenancies-at-will take different forms in different locations, is that the answer may differ in different localities.
In Conochie v Watt, the Tribunal, chaired by a very experienced property lawyer, Mr R.A.Edwards, W.S., made a number of observations (strictly speaking obiter) which strongly support the narrower approach advanced by the respondents in this case. Tenancies-at-will, they said, could only exist in those few areas where from time immemorial they have been acknowledged to exist. ‘Custom and usage’ was a very important thread. The approach of the Act was to ‘mop up’ anomalous holdings such as tenancies-at-will and Kindly Tenants and it would be strange indeed if the Act in effect allowed new tenancies-at-will to be created or recognised. Reflecting what the Tribunal had already indicated in McCann v Anderson, it was said that one must look for a permanency arising from ‘custom and usage’.
The observations in Conochie v Watt were made after evidence had been heard, in a case in which it was not disputed that tenancies-at-will had been recognised in the particular locality. As will be seen, we are not convinced that all of the observations on which Mr Upton has relied stand up as discrete legal propositions which can be applied at the stage of testing relevancy, which was not the context in which they were made. However, we agree with and would confirm the same overall view of the legislation as the Tribunal evidently shared in Conochie and McCann.
The applicants suggest that the provisions are a measure to protect persons in the position of ground tenants who otherwise did not have any security or permanence. It is of course not for us to consider what policy should be. Rather, we have to consider what Parliament did. Appreciating that any tenant who has expended resources on erecting or acquiring a valuable building stands to lose if the tenure is not protected, we cannot understand why Parliament would have singled out one form of insecure tenant for this protection, leaving tenants under written ground leases (perhaps of similar ‘huts’) generally unprotected upon the expiry of their leases. The provision only makes sense on the basis that it sets out a qualifying requirement of permanency. This provision does that by requiring that there is an arrangement which has the force of custom and usage and which involves no ish. The applicants’ position seems to involve a false assumption that tenants-at-will are tenants. Analysing and making complete sense of the statutory definition is not easy, but if it applied to tenants and if, as required by Section 20(8)(c), there was no ish, they would indeed, under normal principles on which the applicants are perhaps relying, be regarded as yearly tenants with no security. But Section 20(8)(a)(i) excludes tenants, at least tenants “under a lease”. The requirement instead is to occupy “by custom and usage”, which must involve something established over a long period of time. The requirement that the “right of occupancy of the land is without ish” then means something different, viz. something which has continued for a long time and has no definite duration – a tenure established by custom. Whatever the legal position about security, a characteristic of permanency is involved.
The context of these provisions, in a statute setting out major reforms in our system of recording and registration of titles to land, strongly suggests that the provision is all about giving titular security to the occupiers of buildings who had customary security, rather than protecting the tenure of one class of insecure tenants. We do not think there is any doubt about this, but if there is then the canon of construction relied on by Mr Upton, construction against expropriation, seems relevant. On the applicants’ approach, insecure tenants are allowed to expropriate the subjects of lease. On the respondents’, persons who have come by custom to be regarded as owners can have their ownership formalised.
We therefore approach the issues of relevancy and specification on the basis that the applicants require to establish an element of permanency (although not necessarily legally enforceable) in their customary tenure. We do, however, keep in mind that the custom and usage might vary from location to location. Moreover, there may be variations in the way in which the element of permanency is established, and the practical arrangements, for example upon changes of “ownership”, need not always be the same. Thus it is very difficult to tie down the precise requirements, but the possibility of such variation makes fair notice of how the tenure is established in a particular case all the more important, particularly when it is not possible to point to some previous recognition of the existence of tenancies-at-will in the locality.
We turn to consider the specific submissions.
(i) Mr Upton’s submission on statutory interpretation was not disputed, and we have touched above on its possible application.
(ii) We could not uphold a submission that the application must be dismissed without evidence because the subjects are not in one of the localities at which the existence of tenancies-at-will has been acknowledged in the Reports and textbooks. Parliament could have prescribed, or left to be prescribed, geographical locations where the provisions could be applied, but did not do so. The Reports themselves, particularly the 1952 Report at para. 74(1), recognised that the tenure might exist elsewhere. The applicants should have the opportunity of proving that it exists in their situation.
However, there is a wider aspect to this submission. Even if what might be described as ‘external’ recognition is not essential, the requirement for a custom involves at least local recognition. The respondents complain that the applicants do not offer to prove that this is a location at which tenancies-at-will have been acknowledged to exist. Ms Locke tended to suggest, in line with the applicants’ general approach discussed above, that this was not really necessary. She argued that the Act merely requires custom and usage, not any ‘local’ custom. The custom could simply be that of one individual occupier (and presumably the landowner). The Tribunal does not think this can be correct. A feature of ‘custom’, in a legal context, is that it is known by a number of people, and the requirement for the arrangement to be established by custom must at least involve some clear and consistent local recognition. We cannot accept that the fact that a person (and his predecessors) has occupied a building for a long time under an arrangement recognised by the landowner (or even, as in the present case, succeeding landowners) can of itself establish a custom.
If the requirement for some form of local acknowledgment or recognition arises from the requirement for ‘custom’, averment of a custom imports such acknowledgement or recognition. The applicants do aver, albeit with little elaboration, that their occupation is by custom and usage. Although there is no specific averment that the locality in question is one at which tenancies-at-will have been recognised to exist, there is an averment that the tenure exists by custom and usage, the huts having been “owned and passed on” to local residents and families.
Mr Upton argues that the requirement for a locality or community in which there has been such recognition is not satisfied in the present situation. As he expressed it, “8 huts on a strip do not a locality make’. The Tribunal appreciates the force of this argument but sees it as a matter of fact and degree. There might possibly be said to be a community which, with its landowner, recognises and follows a custom involving such tenure.
We therefore reject the particular submission that there is no relevant averment of acknowledgment or recognition. We have been concerned that it is by no means clear on the applicants’ pleadings how they intend to show that there is sufficient clarity and consistency to establish the custom which they claim exists. The apparent narrow application of the tenure, to one landowner and eight occupiers of holiday huts, would make strong and clear proof of the recognition of tenancies-at-will by custom and usage necessary. However, we think that the applicants have averred enough on this issue of the requirement for a custom.
(iii) The Tribunal is also not able to uphold Mr Upton’s ‘temporal’ submission that a property can only be the subject of a tenancy-at-will if it has been the subject of such tenure by custom and usage pre-dating modern times. Mr Upton countered the obvious suggestion that this might be a matter of degree by arguing for a distinction between modern times and time immemorial, i.e. the date when the tenure began to be recognised cannot be identified. The period of time during which the tenure has subsisted is obviously relevant, and it may well be the case that the origin of tenancies-at-will will often be lost in the mists of time in this way. However, it seems to us that this cannot be an essential requirement. It does not seem to us to be essential in order to establish the existence of a custom that its origin has been forgotten. If there were two estates in which the tenure otherwise fitted the requirements, but in one the origin, perhaps long ago, happened to have been chronicled, whereas in the other it had not, it could not be right that there were tenancies-at-will at the latter but not at the former. Mr Upton suggested that it would be necessary to show that by the earliest date at which the tenancy-at-will is averred to exist – in this case, 1935 – it must already have been recognised. We have difficulty with the idea that a form of tenure established by custom and usage existed from the first occupation date, but at all events it would not follow that the origin must have been forgotten. The fact that an applicant is able to show the first date on which there was a building occupied on the subjects cannot be a bar to establishing a tenancy-at-will. In this respect, we think that the Tribunal in Conochie v Watt went slightly further, in the passage referred to by Mr Upton at Page 23, than can be justified.
In our view, the time requirement for establishing tenancies-at-will is a matter of degree as part of the whole circumstances (no doubt including the extent to which there have been transactions such as sale or inheritance which may support the existence of the custom and usage), and we are unable to hold in this case that averments of tenure lasting various periods from about 70 to about 47 years are necessarily inconsistent with tenancies-at-will. Again, however, the relative shortness of these periods does nothing to alleviate our concern about the lack of indication in the adjusted applications as to how the requisite custom and usage are to be established.
(iv) The Tribunal takes a different view in relation to the matter of rent increases. Here, although we are, again, unable to accept the proposition that rent increases are as a matter of law inconsistent with the existence of tenancies-at-will, we consider that the applicants’ failure to explain in the pleadings how they suggest changes in the rent from time to time are consistent with tenancies-at-will leaves their case irrelevant or at least lacking in adequate specification.
In Conochie, the Tribunal at page 9 noted some evidence suggesting that the rent, having previously been 5/-, might latterly have been 10/-. The matter was not pursued in submission and the Tribunal thought the evidence possibly wrong anyway. However, the Tribunal observed:-
“The point might not be without importance. It would be inconsistent with a tenancy-at-will for the ground rent to be subject to increase. On the other hand an increase in rent would be consistent with a tenancy.”
We agree that this is a pointer away from tenancies-at-will. As we have indicated, we consider that Parliament intended these provisions to apply to customary arrangements which, because there is no ish, i.e. they are of indefinite duration, have come to acquire a measure of permanency which puts the ‘tenants’ (if they were ever that) in effectively the position of owners, albeit without any title or specific agreement to that effect. That seems to be inconsistent with arrangements in which the rent can be increased by the landowner from time to time, unless it is a clearly established part of the customary arrangements. If the landowner can from time to time propose and implement increases, the tenant’s choice being to pay the increase or leave, there is not the necessary element of indefinite duration or permanency which gives this tenure one of its most distinctive badges.
It does seem to us conceivable that the customary arrangements could at a particular location involve some element of change in the rent on specified occasions, perhaps changes in ‘ownership’ or specified anniversaries. The 1952 Report, at para. 48, notes an example of a ground lease for 99 years but with an obligation on the lessor to renew it at the end of each 99 year period with a duplicand. Remembering that tenancies-at-will can take different forms, it is possible to imagine customary arrangements with some such feature, which might possibly take the form of an increase in rent. The Act does not require that the ground rent be permanently fixed. So recognition that there were changes in the rent does not itself render the applications irrelevant.
Any such arrangement would, however, need to be clearly established as a part of the custom and usage, by contrast with a situation in which the landlord can propose increases of any level, leaving the tenant with the choice whether to stay or leave. The latter arrangement lacks the necessary element of permanency. If, therefore, the applicants accept, as they do, that there were changes in the rent from time to time, they must explain how such changes are part of the established arrangements. Otherwise they are describing a tenure which lacks the necessary feature of permanency and which appears to be on a yearly basis. The applicants have not done enough to make a relevant case of tenancies-at-will.
Ms Locke argued that, even if rent increases are inconsistent with the existence of tenancies-at-will the rent increases averred by the respondents might coincide only with their ownership of the land, i.e. there might be established tenancies-at-will which the respondents’ actions, even with the applicants’ agreement, could not have brought to an end. We agree with Mr Upton that, in the face of the respondents’ averments, this is highly speculative on the facts. It would shorten still further the period during which tenancies-at-will could be said to have been established. We think that if such an argument were to be advanced the applicants would require to give proper notice of it.
(v) The Tribunal agrees with Ms Locke that the applicants’ averments on the existence of ‘buildings’ in the three cases in which the respondents have put this matter in issue would be adequate to go to proof. This issue seems to us to be in a slightly different position from other questions about the existence of tenancies-at-will because it involves readily ascertainable questions of fact and also will depend to a fair degree on the Tribunal’s impression on inspection. The applicants meet with bare denial the respondents’ averments that these huts are not buildings and are capable of being transported, but they do aver in each case not only that rates are levied on the huts but also that “the hut is of sufficient size and has appropriate fittings and fixtures to permit overnight and holiday residence”. Ms Locke relied on further averments about access by footpath, suggesting that huts may not be removeable, but we note that this would appear to apply to only two huts (nos. 1 and 2) out of the three huts in respect of which this point is made. Be that as it may, we feel that it is sufficiently clear from the applicants’ pleadings that they do contend that these huts are ‘buildings’ and that the respondents are not placed at any disadvantage by the applicants’ pleadings. The Tribunal’s consideration of this issue in McCann and Conochie does indeed suggest that removeability without damage might be fatal, that not necessarily being the case in an issue of heritability under the rating legislation. We think, however that while the applicants’ averments on this matter leave something to be desired they have said enough to entitle them to try to prove permanence. On this issue, a proof should be allowed before deciding whether the legal requirement is satisfied.
We have upheld the respondents’ arguments in relation to one important matter, that of rent increases. At the hearing Ms Locke did move a motion for leave to amend on this issue. However, after some discussion of that motion and after being allowed time to consider her position and in particular whether the applicants would actually be in a position to meet the point about rent increases, Ms Locke withdrew the motion. The normal consequence, certainly in a court, would be dismissal. We recognise that we are a tribunal with rules less strict than those of courts, and have considered whether we should nevertheless give the applicants an opportunity to persuade us that they should be allowed to amend. We have reached the view, however, that this would not be appropriate. The respondents have always been clear that they maintain that the applicants occupy under yearly leases, and have from the start referred to the history of rent increases as being consistent with yearly leases. Para. 5 of the Note of Arguments made clear the respondents’ intention to raise this issue at debate. Although we are a tribunal and do not like to be over-formal, this dispute is of a technical nature, with solicitors and counsel on both sides. The applicants not having pressed their motion for time to amend, we think the normal consequence should follow.
As has been seen, we have other reservations about the adequacy of the applicants’ cases on paper, but we would have allowed a hearing of evidence on these matters.
We have dismissed each of these applications and we reserve all questions of expenses.