When
transferring a 1991 Act or crofting tenancy to a deceased tenant’s successor
upon intestacy, the received wisdom is that the process must be completed
within a year (two years for crofts) of the death. Otherwise, the tenancy is at
risk of being terminated notwithstanding the security of tenure normally
enjoyed.That
said, there has been a degree of uncertainty about exactly what the consequence
of missing the deadline is. The Inner House case of Pattinson v Matheson 2022 CSIH 43
(concerning a croft but equally applicable to 1991 Act tenancies) now provides
welcome clarity on this: the consequence is not that the tenancy simply
terminates on the expiry of the one (two) year deadline and cannot be revived
thereafter. Rather a right arises to the landlord at the expiry of the one
(two) year period to terminate the tenancy but that may be defeated if the successor
completes the transfer, albeit late, before the landlord takes action.
Different types of tenancy
This
article only concerns 1991 Act and crofting tenancies. It does not
concern the newer types of agricultural tenancy (Limited Duration Tenancies, Short
Limited Duration Tenancies and Modern Limited Duration Tenancies). That's because
s.16(4C)(b) of the Succession (Scotland) Act 1964 explicitly
says that they simply terminate if not transferred within a year of the death.
Intestate transfers
This
article also only concerns intestate transfers of tenancies, not
transfers pursuant to a valid bequest of the tenancy in the deceased tenant’s
will.
Intestate
transfers of crofting tenancies only arise when the deceased tenant
didn’t make a bequest of the tenancy (either because he didn’t have a will or
he did but it didn’t contain a bequest of the tenancy). Intestate transfers of 1991
Act tenancies are much more common. That’s because, unlike crofts, there is no
statutory right of bequest of most 1991 Act tenancies. [1]
Succession (Scotland) Act 1964
The
starting point of this discussion is the Succession (Scotland) Act 1964. That’s
the one which vests a deceased’s heritable estate (which includes any interest in
a tenancy) in his executor rather than his heir-at-law as under the pre-1964
law (section
14) and then allows the executor to transfer a tenancy to someone,
typically (though not necessarily) one of the deceased’s heirs ab intestato,
[2] notwithstanding any express or implied prohibition on assignation in the
lease (s.16).
1991 Act and crofting specialities
Section 12 of the 1991 Act adds a further requirement for
1991 Act tenancies, namely, that the transferee from the executor must give
notice to the landlord of his acquisition of the tenancy within 21 days of the
transfer to him. And section 11(1) of the Crofters (Scotland) Act requires the
executor (not the acquirer as with 1991 Act tenancies) to give notice of the
transfer containing particulars of the transferee to the landlord and the
Crofting Commission “as soon as may be” after the transfer.
Three step process
The upshot of this legislation is that the transfer of a
tenancy involves three steps to be achieved within one year (two years for
crofts) of the death of the deceased tenant:
1 Confirmation – the deceased tenant’s executor obtains
confirmation as executor. The deceased’s interest in the tenancy must be
included in the inventory.
2 Deed of transfer – the executor transfers the
tenancy to the successor. A docket transfer under s.15(2)of the Succession Act is the gold standard way to do this
but something less formal will suffice.[3] Whatever form of document is employed, I refer to this step as “the
deed of transfer” to distinguish it from the entire three step process of the
transfer from the deceased to the successor.
3 Notice – the transfer is notified to
the landlord. In the case of crofts, this notice must be simultaneously copied
to the Crofting Commission (CC). The CC provides a form of notice for notifying
transfers to landlords. You can see it here. Use of the CC form is not mandatory.[4]
Pattinson v Matheson - the facts
The tenant of two crofts at
Shieldaig on Loch Torridon in Wester Ross (pictured above) died intestate (no will) on 14
September 2012. As he was entitled to do under the Crofting Act, his son, Mr
Matheson, wanted to transfer the tenancies to himself as his father’s sole
heir. Although he obviously hadn’t taken legal advice, he did rather belatedly
become aware there were formalities he needed to complete within two years of
his father’s death. Accordingly, he obtained a CC notice of transfer form and
completed it to the extent of identifying the crofts and himself as the
successor to his father and signing the declaration at the end. But he had to
leave the details of the confirmation and deed of transfer (steps 1 & 2)
blank because he hadn’t done these things. On 8 September 2014 – six days short
of two years from his father’s death – Mr Matheson sent this to the landlord of
the crofts, Mr Pattinson, with a covering letter. That letter is not quoted in
either of the decisions in the ensuing court case and all we know of it is the
following precis in the Inner House judgement (para [7]): “The letter explained
that he was requesting the transfer of the crofts to him following upon the
death of his father.” He also sent a copy of the form to the CC.[5]
The landlord didn’t respond but the CC did because the
transfer to Mr Matheson triggered registration of the crofts in the Crofting
Register for the first time. This would involve him being named as the tenant
but the CC was concerned from the absence of details of the confirmation or deed
of transfer on the form that the transfer of the tenancies to him may not have
been completed correctly. Protracted correspondence ensued until, possibly at
the prompting of the CC, Mr Matheson eventually consulted a solicitor. This
resulted in the following actions:-
30 November 2018 – Mr Matheson obtained confirmation (step 1)
4 June 2019 – His solicitor completed a new CC notice of transfer form
and intimated this to the landlord and the CC (step 3)
13 June 2019 – Mr Matheson signed a docket transfer to transfer the
tenancies to himself (step 2)
8 October 2019 – He was registered as tenant in the Crofting Register.
Meanwhile, having remained silent until now, the
landlord, Mr Pattinson, now objected that the two attempts to transfer the
tenancies to Mr Matheson were invalid, the 2014 attempt having been within the
two years but inept for lack of steps 1 and 2 (confirmation and deed of
transfer) and the 2018/19 one having been out of time. He accordingly served
notice under s.16(3) of the Succession Act to terminate the tenancies at
Martinmas (28 November) 2020 due to their not having been timeously validly transferred
to anyone following Mr Matheson’s father’s death.
The Land Court: “automatic termination” and “protected period”
interpretations of s.16(3)
The case came into court through Mr Pattinson applying to
the Land Court to challenge the registration of Mr Matheson as tenant of the
crofts.[6]
The court confirmed (report
here), unsurprisingly perhaps, that the 2014 attempt to transfer
the tenancies had indeed failed for want of steps 1 (confirmation) and 2
(deed of transfer).
As regards the 2018/19
attempt (which included steps 1 and 2 but was more than two years after Mr
Matheson’s father’s death), the Land Court decided that the correct
interpretation of s.16(3) was not that the tenancy simply ended at the
expiry of the two years if it hadn’t by then been validly transferred by the
completion of all three steps and couldn’t thereafter be revived – I call this the
“automatic termination” interpretation of s.16(3). Instead, the correct
interpretation was that the two years was merely a protected period within
which the executors might effect a transfer. If all three steps had not been
completed within the two years, the landlord might at any time thereafter give
notice to terminate but until he did that, the tenancy remained in existence and
available for transfer. And if the executor didn’t complete all three steps until
more than two years after the death but before the landlord gave notice, then
the successor would be safe: I call this the “protected period” interpretation
of s.16(3).
Unfortunately for Mr
Matheson, however, the Land Court also decided that he had not correctly
completed all three steps before Mr Pattinson had given notice to terminate
because he’d done them in the wrong order – the 2019 deed of transfer (step 2) was
dated nine days after the notice to the landlord and the CC (step 3). And
it was implicit in the wording of s.11(1) of the Crofting Act,
“Where […] the
tenancy is transferred in pursuance of section 16(2) of [the Succession] Act,
the executor of the deceased crofter shall as soon as may be give notice of the transfer
…”
that
the required notice was of a deed of transfer that had already taken place,
not one that was going to happen.[7]
The Inner House
Mr
Matheson appealed to the Inner House by special case.[8]
In
reversing the Land Court and rescuing his crofts for him, the Inner House held
(judgement here) that the 2014 attempt to
transfer the tenancies had been valid. That was because it took the view
(para. [24]) that Mr Matheson’s letter to Mr Pattinson of 8 September 2014
(within two years of his father’s death) together with the CC intestate
transfer form enclosed with it themselves amounted together to the necessary
deed of transfer (step 2). As for the objection that Mr Matheson had not at
that time yet obtained confirmation (step 1), and didn’t do so until more than
two years after his father’s death, it didn’t matter that step 1 (confirmation)
was done after steps 2 and 3 (deed of transfer and notice) because a confirmation
is deemed to be effective retrospectively to the date of the deceased’s death. Furthermore,
the Inner House agreed with the Land Court that the protective period was the
correct interpretation of s.16(3). Thus, all three steps had been completed,
albeit in an unconventional order and more than two years after the last
tenant’s death, before the landlord had given notice to terminate so Mr
Matheson was safe.
Automatic termination or protected period?
To
begin with, the Inner House’s preference for the protected period
interpretation is entirely consistent with the relevant wording of s.16(3)
of the Succession Act:-
(3) […] if in the case of any [tenancy]— […] (b)
[it] is not so disposed of [i.e. transferred under s.16(2) by the executor to
an eligible transferee] within a period of one year [two years for crofts] or
such longer period as may be fixed by agreement between the landlord and the
executor or, failing agreement, by the relevant court on the application
of the executor […] from the date of death of the deceased, either the
landlord or the executor may, on giving notice in accordance with [subsection
(4)] to the other, terminate the lease […].
As already noted, the Land Court had
also favoured the protected period interpretation (para. [17] of its
judgement). It observed that, if tenancies simply automatically terminated
at the end of the one/two years, then the provision giving the landlord the option
to terminate by notice (“may, on giving notice … terminate”) would be
redundant. So too, the Land Court observed, would the provisions concerning
crofting tenancies in s.11of the Crofting Act - which assume a tenancy remains available
for transfer past two years (see s.11(5)(b)) - giving the Crofting Commission
power to terminate it when the landlord has chosen not to do so in order to
clear the decks for them to exercise their power to compel the re-let of an
empty croft.
Standing the pretty clear words of s.16(3),
then, it’s perhaps hard to see how the automatic termination interpretation
could have gained traction. But it was given credence in the 3rd (1997) edition
of the leading textbook on 1991 Act Tenancies, The Law of Agricultural
Holdings in Scotland by Brian Gill, para. 34.03 of which says:-
"The
confirmation ought always to precede the transfer, but it has been held that
the executor may validly transfer prior to the confirmation. In that case [Garvie’s
Trustees] both the transfer and the confirmation were within one year of
the death. It is almost certain that such a transfer would be invalid if the
subsequent confirmation was obtained outwith the one-year period."
(Emphasis added)[10]
So what of the “well
established line of authority” Mr Pattinson’s counsel proponed in support of
the automatic termination interpretation that the Inner House felt able to step
round? Let’s look at these in date order:-
Rotherwick's Trustees v Hope (1975 SLT 187)
In this Outer House case, a 1991 Act
tenant (as we would call him now) died and nobody had confirmed as his executor
or attempted to transfer the tenancy to anyone or notify the landlords of that (i.e.
none of the three steps had been undertaken) by the time, more than a year after
the death, when the landlords took steps to terminate the tenancy. They were,
however, confronted with an apparent lacuna in the Succession Act: if
there is no executor, to whom do they give notice to terminate under s.16(3)?
Therefore, they raised a common law action against the late tenant’s widow and
his children for declarator that the lease had come to an end and for removal
of his son who was in possession of the farm.
The late tenant’s family’s counsel
(Brian Gill as a junior) argued – not with much conviction, one senses – that, although
no transfer had been effected within a year of the death, s.16(3)(b) contains
provision for the year to be extended by application to the sheriff [11]
and that there was not, on the face of the section, any time limit within which
such application had to be made. But Lord Robertson preferred the landlord’s
counsel’s argument that:
“It was erroneous to maintain that the
effect of s.16 was that a lease remained in suspended animation after the death
of the tenant until an executor or executrix chose at leisure and at pleasure
to be confirmed to the deceased’s interest [which] was the only argument maintained
by the [late tenant’s family].”
The judge also remarked that he was:
“… of opinion that, even if the
executrix confirms, the
provisions of s. 16 (3) (b) insist that any disposal of such an interest by an
executrix must be made within one year of the death of the tenant […]. Failing
such disposal, the landlord may give notice to terminate the lease in the
manner set out in s.16(4).”
That’s not the most unambiguous articulation of
the automatic termination interpretation and it is, of course, obiter. That
being so, there’s little here that’s inconsistent with the protected period
interpretation of s.16(3) that the tenancy remains available for transfer after
the end of the one (two for crofts) year period until the landlord takes
action to terminate the lease. And in that latter regard (although Lord
Robertson didn’t frame it in these terms) a common law action of declarator and
removal fills the lacuna in the section when there is no confirmed
executor. It’s implicit, of course, that no such action could succeed within
the one (two) year protected period.
Gifford v Buchanan (1983 SLT 613)
In
this case, also concerning a 1991 Act tenancy, the tenant died on 6 April 1981.
Executors were confirmed in February 1982 but no deed of transfer or notice was
effected within a year of the death. On 13 May 1982, the landlords gave the
executors notice under s.16(3) to terminate the lease at Whitsunday 1983. On 31
May 1982 the executors applied to the sheriff under s.16(3) for an
extension of the year to give them further time to effect a transfer to the
deceased tenant’s son. The landlords opposed that application as incompetent on
the basis that it was too late.
Apparently
accepting the executors’ rather creative interpretation of s.16(3) that
granting the application would result in the retrospective substitution of a
new longer period ending after the landlords’ notice to terminate, and thus
making that notice premature, as opposed to extending the existing period which
had already run out, the sheriff repelled the landlords’ competency plea. They
appealed to the Inner House which, unsurprisingly perhaps, reversed the
sheriff’s decision and confirmed that the application to extend was indeed
incompetent as being out of time.
Referring to his decision in Rotherwick’s
Trustees, Lord Robertson opined that a competent application to extend could
only be made within the year from the death. In so doing, he appeared to
confirm he had indeed been articulating the automatic termination
interpretation in Rotherwick. Lord Grieve agreed with Lord Robertson without
delivering his own judgement. But the Lord Justice Clerk (Wheatley) preferred
to decide the case on the basis that the application was incompetent because
(as is surely uncontroversial) it had been made after the landlords had
exercised their right to terminate. And he declined to offer an opinion on
whether it was necessary to make an application within the year – in other
words leaving open the competence of applying to extend after the end of the
year but before the landlord had given notice to terminate.
Morrison-Low v Paterson (1985 SC (HL) 49)
Thomas
Paterson was the 1991 Act tenant of a farm in Fife called Moonzie under a lease
dating back to 1929. He farmed in partnership with two of his sons. The
partnership was called Thomas Paterson & Sons and the rent was paid out of
the partnership bank account. Mr Paterson died on 4 December 1973. The
executors nominated in his will obtained confirmation but for some reason this
did not include the tenancy of the farm (so for present purposes, that’s the
same as if there had been no confirmation at all). After his death, Mr Paterson’s
sons continued to farm Moonzie in the same partnership (which had not been
dissolved by their father’s death). The landlord issued rent demands to “the
Executors of the late Thomas Paterson t/a Thomas Paterson & Sons” and the
rent continued normally to be paid out of the partnership account as it had
been before Mr Paterson’s death. But his executors had not attempted to obtain
an eik to confirmation or transfer the tenancy
to anybody under s.16 by the time in 1979 when the landlord raised an action of
declarator and removal.
Accepting
the authority of Rotherwick [12],
the executors didn’t even attempt to argue that the tenancy might still be
available for transfer under s.16 even though the landlord had already commenced
action. Instead, their defence was that a new unwritten lease from year to
year – but enjoying agricultural security of tenure, of course – in the
executors’ favour had been created. This was due to the circumstances of the
landlord having allowed the executors to remain in possession of the farm and
demanded rent from them over a period of about five years.[13] This being so, not only would
it have been hopeless, it wasn’t even in the executors’ interest to argue that
the 1929 lease remained in existence beyond the anniversary of Mr Paterson’s
death. That’s because, per Rotherwick, there is no doubt that, even if
it had stayed alive past the anniversary, it had been “killed” by the landlord
raising his action of declarator and removal. The facts of the possession of
the farm between the anniversary and the raising of action were entirely
consistent with the 1929 lease having remained alive so the executors needed it
out of the way so that these same facts could be ascribed to a new lease with
security of tenure. For that reason, it’s perhaps puzzling that counsel for the
landlord didn’t argue for the original 1929 lease having continued past
the anniversary of Mr Paterson’s death. Be that as it may, the executors’ new
lease defence didn’t find favour with either house of the Court of Session for
reasons beyond the scope of this article. But it did eventually succeed in the
House of Lords. Lord Keith of Kinkel delivering the leading judgement there remarked
(page 76):-
“Under section 16(3) any such transfer [by
executors to a successor] is required to be made … within the period of one
year after the death of the deceased. As authority for the proposition that in these
circumstances the lease of 1929 had come to an end not later than the expiry of
that period, so that there ceased to be any person in right of the tenant’s
interest under it, counsel for the landlord cited Lord Rotherwick’s Trustees
v. Hope … . The correctness of that decision was not questioned by
counsel for the [Mr Paterson’s executors], and I see no reason to doubt it. It
must, therefore, be accepted that the tenant’s interest under the lease of 1929
has indeed come to an end, and that neither the [executors] nor any other
person are now in right of it.”
Assuranceforeningen Skuld v. The
International Oil Pollution Compensation Funds (2000 SLT 1333 and here)
There’s no sign this case was cited in argument at
either stage of Pattinson [14]
but it was cited in McGrath v Nelson (discussed below) which was so
it’s worth a look at here. It concerned the competence of extending a time
limit in a different Act after it had expired. Lord Gill (author of the above
quoted text book) sitting in the Outer House opined that this was always a
question of interpretation of the statute (or, as the case may be, contract) in
question. In this regard, an important factor was whether it provided that a
right arising during the period concerned was extinguished upon its expiry. He
cited s.16(3) of the Succession Act as interpreted by Gifford as an
example of a statute where that was the case. He glossed Gifford thus:-
“The ratio of the court in refusing the
application was that since the landlord had served notice of termination, it
was on any view too late for the executor to seek an extension of the period.
However, the majority [Lords Robertson and Grieve] were of the view that the
emergence, on the anniversary of the death, of the landlord's right to
terminate the lease extinguished the executor's right to transfer the tenant's
interest. Therefore the court could not resuscitate the executor's right by
granting any subsequent application for an extension.
In my view, these cases [i.e. Gifford and
others concerning other statutes/contracts] are distinguishable. In each of
them the statutory or contractual provision provided that on the expiry of the
specified period a right or power was extinguished. It was logical for the
court in those cases to require that any extension of that period should be
made while the right or power remained live.”
Sproat v South West Services (Galloway) Ltd (2000 - unreported but available here)
Mr
Wyllie was the tenant under two non-agricultural 99 year leases from the same
landlord. He died in December 1978 when
the terms of these leases still had about 60 or 70 years still to run (the report doesn't tell us exactly when they began). His widow was confirmed as
his executor in June 1979 but she didn’t transfer them to herself as an
individual (in part satisfaction of her claim to prior rights) until November
1981, more than a year after he had died. Although no statute mandates
notification to the landlord of transfers on succession of non-agricultural
leases as the 1991 Act and Crofters Act do for the tenancies they apply to (in
other words, there is no step 3 for non-agricultural leases), Mrs Wyllie did
anyway notify them to the landlord’s solicitors who acknowledged them without
comment. For many years thereafter, the landlord, Mr Sproat, was content to let
her, then a Wyllie family partnership and then latterly the defender, a Wyllie
family company, remain in occupation of the leased subjects and he accepted
rent from them. Then in the late 1990s relations must have broken down. The landlord
served notices to quit on the company and raised an action heard by T G Coutts
QC sitting as a Temporary Judge in the Outer House.
The
facts are not dissimilar to Morrison-Low except that the new lease
defence which eventually saved the Patersons there wouldn’t save the Wyllies
here. That’s because any new lease would necessarily only be from year to year
and, in a non-agricultural context, that would not have security of tenure –
the landlord could terminate it at the end of any year. To protect their long
term occupation of the sites, the Wyllies needed to convince the court that Mrs
Wyllie was still the tenant under the original 99 year leases which still had
decades to run because they had been validly transferred to her, albeit more
than a year after her death of her husband, the last tenant, before the
landlord had taken steps to terminate the leases consonant with the protected
period interpretation of s.16(3). And the defender family company was in
informal occupation as her manager and paying the rent on her behalf (like the
firm of Thomas Paterson & Sons in Morrison-Low).
Arguing for the protected period interpretation
of s.16(3), the Wyllies’ counsel suggested that Lord Robertson’s dicta
to contrary effect in Rotherwick and Gifford were obiter
and should not be followed. (He didn’t mention Lord Keith in Morrison-Low.)
But Temporary Judge Coutts rejected that. Finding Lord Robertson’s views (the
automatic termination interpretation, in other words) compelling, he held the
defender company was the tenant under a new, unwritten lease from year to year.
And, because that didn’t involve security of tenure in a non-agricultural
context, the company could be evicted at the end of any such year. He accordingly
repelled all its pleas and granted decree in favour of the landlord.
McGrath v Nelson (2010 CSOH 149)
Mrs
MacLean, the tenant of a croft and also a farmhouse held on a separate short
assured tenancy (SAT) from the same landlord, died intestate in August 2006. While
as yet unconfirmed, her executors decided at a meeting in January 2007 to
transfer the tenancy of the croft to Miss McGrath (which they were entitled to
do) and request that the landlord, Mr Nelson, grant her a new SAT of the
farmhouse. In February 2007, the executors’ solicitors wrote him a letter the
relevant part of which was:-
“The Executors of the late Mrs Margaret MacLean
… hereby nominate Miss Josephine McGrath, … to succeed to the tenancy of
(One) Achaleven Croft and (two) to be put forward for a new short-assured
tenancy of Achaleven farmhouse. Josephine would intend to personally reside in
the farmhouse and personally operate the croft as soon as these transfers
have been completed.” [Emphasis added]
The Land Court in Pattinson
Finally, let’s revisit what the Land Court said in Pattinson.
As already noted, it explicitly adopted the protected period interpretation of
s.16(3) (paras. [17] & [18]). But it also agreed with Lady Dorrian in McGrath
that a retrospective confirmation would need to be within two years (as it is
now for crofts) of the death (para. [16]). To me, these two positions are
irreconcilable. If you accept that a tenancy remains available for transfer after
the end of the one/two year protected period but before the landlord takes
action to terminate, and also that the confirmation may come after the deed of
transfer and/or notification, why does the confirmation have to be within the
one/two years?
Summary of the precedents
Lord Robertson’s remarks in Rotherwick, Lord Gill’s Assuranceforeningen
and Lady Dorrian’s in McGrath in support of the automatic termination
interpretation of s.16(3) are all obiter. Sproat is directly in
point (Mrs Wyllie transferring the tenancy to herself more than a year after
the death but before the landlord raised action didn’t save the lease) but it
was, of course, open to the Inner House in Pattinson simply to overrule Temporary
Judge Coutts as they have, in effect, done. As an Inner House decision, Gifford
is entitled to more respect but Lord Gill’s gloss on it in Assuranceforeningen
– that the ratio of the court in refusing the
application to extend the year was that since the landlord had served notice of
termination, it was on any view too late for the executor to seek an extension
– is surely correct and consigns to obiter the views of the majority (Lord
Robertson again and Lord Grieve who agreed with him without delivering his own
opinion) that the application was blocked by the expiry of the year from the
death rather than the landlord taking steps to terminate.
It’s harder, though, to understand how the Inner
House in Pattinson felt it could so easily step round the House of Lords
in Morrison-Low with the single sentence (para. [20]):-
“The issue of whether a lease could be transferred
after the statutory period in section 16(3) was not contested in Morrison-Low
… (see Lord Keith at 76 citing Rotherwick’s Trs v Hope).”
The issue may not have been contested but the ratio
of Morrison-Low is that the landlord’s action of removal was blocked
by the existence of the new lease with security of tenure. And Lord Keith sat
that new lease firmly on the previous lease of 1929 having ended a year after its
tenant’s death. He remarked (page 78):-
“So it is
enough for the [late tenant’s executors] to prove that the farm at Moonzie was
let to them for some period from 4th December 1974 [the day after the expiry of
a year from the tenant’s death], when, as is common ground, the lease of 1929
necessarily came to an end … The [executors’] possession [of the farm after
4/12/74] was not capable of being ascribed in law to the 1929 lease. It must,
therefore, be ascribed to something else, and that something else can only be
[the new lease contended for by the executors].”
At the end
of the day, I confess I just don’t know the exact protocols around when a lower
court may ignore a superior court on the basis that the point at issue was
matter of concession and not argued before the latter. I trust the judges of
the Inner House to know more about that than I do!
Conclusion
No lawyer timeously
consulted by the family of a deceased crofting or 1991 Act tenant is ever going
to advise doing things other than by the conventional procedure of obtaining
confirmation, doing a deed of transfer and then notifying the landlord (and CC
in the case of a croft), in that order and all within a year (two for a croft)
the death. Pattinson does, however, throw a lifeline to people who have
not done things by that book and while the landlord has not yet exercised his
right to terminate. The only ground for hesitation is the shadow cast over the
decision by Morrison-Low. Although, if you were acting for a landlord
faced with a tenant who had completed the three steps outwith the one (two)
year period, would you advise him he could evict that tenant on the basis Pattinson
is wrongly decided?
Footnotes
[1] There is a statutory right of bequest in the 1991 Act (s.11) but
its effect was neutered by the case of Kennedy v Johnstone 1956
SC 39 which held that it doesn’t apply in the case of a lease containing an
exclusion of assignees (a bequest being functionally a mortis causa
assignation). As written leases almost invariably exclude assignees, the result
is that the statutory right of bequest is effectively confined to the
relatively rare cases where there is no written lease. Intestacy can also arise
in the case of 1991 Act tenancies when there has been a valid bequest but it is
declared null and void by the Land Court under sections 12A or
12B of
the 1991 Act consequent upon an objection to the legatee by the landlord. But
this is even rarer and thus not a scenario contemplated in the rest of this article.
[2] This article is not concerned with the class of
people to whom 1991 Act or crofting tenancies may be transferred upon intestacy,
only with the process of transfer to eligible transferees.
[3] Pattinson v Matheson, at para. [24]
[4] The
Land Court in Pattinson v Matheson and Lady Dorrian in McGrath v
Nelson (see below) follow the 3rd (1997) edition of Gill on Agricultural
Holdings at para. 34.01 in referring to it as a two step process. So too
does the current, 4th edition of Gill (at para. 53.01). That is by treating obtaining
confirmation and the deed of transfer as a single step. But with respect, I
think it’s much more helpful to think of it as a three step process.
[5] What Mr Matheson didn’t
know was that it’s not the landlord’s role to effect the transfer in response
to a request from the tenant: it was up to him to do the transfer and
simply notify the landlord (and the CC) that he’d done so.
[6] Neither the Land Court nor the Inner House
decisions explicitly state which provision Mr Pattinson’s challenge was brought
under but presumably it was either s.14 of the
Crofting Reform (Scotland) Act 2010 (challenge by an interested party to the
first registration of a croft) or s.16 of that
Act (rectification of a “mistake” in the register).
[7] There’s a curiosity here in that the Inner
House’s judgement refers (para. [8]) to Mr Matheson having “executed a “Form of
Docket” nominating himself as the person entitled to his father's estate” on 3
June 2019, i.e. before the notice. The Land Court judgement doesn’t mention
this. Both courts proceeded on the basis that the 13 June 2019 docket transfer
was the only deed of transfer in play so presumably the 3 June one was accepted
by Mr Matheson as having been invalid in some way and thus irrelevant to the proceedings
and that would explain why he felt it necessary to do another one on 13 June
which was valid but too late.
[8] under section 1(7)of The Scottish Land
Court Act 1993
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