Land Tenure – Tenancies-at-Will – Existence – Beach huts erected on strip of ground beside seashore on various dates between 1935 and 1958 – annual rents payable to landowner – several rent increases during period – arrangements not subject to any written agreement – Land Registration (Scotland) Act 1979, Section 20(8).

Harbinson and Others v MacTaggart
9 December 2005

The occupants of a number of beach huts erected on various dates between 1935 and 1958 on a strip of ground beside the seashore near Castle Douglas claimed to be entitled to the benefit of the provisions under the 1979 Act entitling tenants-at-will to purchase, on statutory terms, the landlord’s interest in the land subject to the tenancy-at-will. The huts were said to have been passed on to local residents and family and the applicants claimed to be occupiers by custom and usage of huts occupied by their predecessors and/or acquired for value. The ground rents had been increased from time to time. The proprietors of the land did not accept that the arrangements amounted to tenancies-at-will and had sought to record the arrangements in the form of written leases reducing the arrangements to annual lets. They sought dismissal of the applications on grounds of relevancy and specification.

Section 20(8) of the 1979 Act 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.”

The respondents submitted as follows: as a matter of statutory construction, the provisions were to be construed in dubio against compulsory expropriation; holdings to which the provision applied existed only in those few parts of Scotland where this very unusual form of tenure had been acknowledged from time immemorial; a property could only be the subject of a tenancy-at-will if it had been the subject of such tenure by custom and usage pre-dating ‘modern times’ as distinct from ‘time immemorial’; 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, and there would be security enabling the tenants to resist rent increases – or at least clear averments as to a custom and usage including at least some changes in rent were required and it was insufficient merely to disclose in the pleadings that there had been increases; and – in relation to three of the applications – that the applicants’ failure to answer certain averments about ‘buildings’ rendered their pleadings lacking in candour. The Tribunal should not be satisfied that there was a case to go to proof.

The applicants submitted that there was nothing in the Act which confined tenancies-at-will to the established areas; the Act had no temporal restriction and, the applicants or their predecessors having occupied for more than 50 years, this was a question of circumstances; the rents may only have been increased during the ownership of the respondents’ family, which would be consistent with previous establishment of tenancies-at-will which could not have been displaced by agreement, or alternatively occasional small rent increases were not inconsistent (there being no security other than that provided by the 1979 Act); and the question whether a structure was a ‘building’ was a matter for proof.

Held, dismissing the applications:-

(i) while the wording of the Act made it difficult to uphold the respondents’ specific legal propositions and a tribunal should be slow to disallow a claim from going to proof, the onus was on the applicants to give fair notice of the way in which they proposed to show that this highly unusual form of tenure existed at this location;

(ii) the provisions made sense only on the basis that they set out a qualifying requirement of permanency, and this was provided by the requirement for occupation ‘ by custom and usage’ and ‘without ish’ – a tenure established by custom. The provision was about giving titular security to occupiers who had customary security, rather than protecting one class of insecure tenants. The custom and usage might vary from location to location, but this made fair notice of how the tenure was established all the more important.

(iii) Parliament had not prescribed any geographical limitations, and the applicants should have the opportunity of proving that their situation amounted to tenancies-at-will. There was a requirement for at least some local recognition, but the applicants had averred enough to that effect: it was a matter of fact and degree whether the particular location was substantial enough for ‘custom and usage’ to be established.

(iv) It could not be accepted that the tenure must have pre-dated ‘modern times’ in the sense of having been established in ‘time immemorial’ – it is not essential to establish the existence of a custom that its origin has been forgotten. The time requirement was a matter of degree as part of the whole circumstances.

(v) While it could not be affirmed that rent increases were as a matter of law inconsistent with tenancies-at-will, particularly when the necessary custom and usage might vary from place to place, they certainly pointed away from customary arrangements which had acquired a measure of permanency putting the ‘tenants’ effectively in the position of owners. It was possible to conceive of arrangements for rent increases within the custom and usage but that would need to be clearly established. Having failed to explain how such changes were part of the established arrangements, the applicants had not done enough to make a relevant case of tenancies-at-will.

(vi) The applicants’ averments on the existence of ‘buildings’ in the cases where this was in dispute would have been adequate to go to proof.

Authorities referred to

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 SC 488
McCann and Another v Anderson 1981 SLT (Lands Tr.) 13
Ferguson v Gibbs 1987 SLT (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

See full decision:  LTS/TW/2005/01-08 (Merits)