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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Osborne
Lord Kingarth
Lord Eassie
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[2008] CSIH 30
XA187/06
OPINION OF THE COURT
delivered by LORD OSBORNE
APPEAL FROM THE SHERIFFDOM
OF GLASGOW AND STRATHKELVIN AT GLASGOW
in the cause
EILEEN
BLACKBURN, permanent trustee on the sequestrated estates of William Cowie,
Pursuer and Respondent;
against
ELIZABETH COWIE
Defender and Appellant;
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Pursuer and respondent: Mrs S Wolffe, Advocate, Lindsays, McDonalds, Glasgow
Defender And Appellant:Kinnear, Advocate,
Drummond Miller LLP, Ross Harper, Glasgow
25 April 2008
The Background Circumstances
[1] The pursuer
and respondent in this appeal is the permanent trustee on the sequestrated
estate of William Cowie. The defender
and appellant, Elizabeth Cowie, is the former spouse of William Cowie, who was
sequestrated on 13 June 1989.
The appellant and the bankrupt were divorced in 1993. A Mr Allan O'Boyle was initially appointed
the trustee in the sequestration. The
present respondent was appointed as permanent trustee in succession to Mr
O'Boyle, by virtue of Act and Warrant granted in Glasgow Sheriff Court on 8 July 2002.
The bankrupt owned inter alia heritable
property situated at 41 Westbourne Gardens, Glasgow, in which he and the appellant
lived. Mr O'Boyle
expeded a notice of title to that property, which was registered on 30 January 1990.
On 14 November 1990, the Sheriff granted an application,
made by the then trustee in the sequestration, in which the court was asked to
dispense with the consent of the appellant to the sale of the property, in
terms of section 40 of the Bankruptcy (Scotland) Act 1985. The only conditions attached to the grant were
that the date of entry was to be no earlier than 31 May 1991; that twenty one
days notice of the proposed date of entry was to be given to the appellant; and
that she was to afford all reasonable access by the permanent trustee to the
property for the purpose of its maintenance and marketing. That decree was not one in absence.
[2] Over a long
period of time, the former trustee in sequestration and subsequently the
respondent have had various meetings, discussions and correspondence with the
appellant, both directly and through her legal advisors, with a view to her
acquisition of the heritable property at 41 Westbourne Gardens, Glasgow, for a price reflecting the reasonable
market value of the property. At an
early stage, a decision was taken by the trustee in sequestration to sell the
property to the appellant for an acceptable price. However, at no time during the period from
1990 to the present date has any formal offer been made on behalf of the
appellant to purchase the property. Eventually,
the trustee in sequestration began to take the view that the appellant either
did not intend to purchase the property, or was unable to do so. Against that background the trustee in
sequestration considered that the duty owed to the creditors of the bankrupt
and the bankrupt himself meant that, in the absence of an offer from the
appellant, the property had to be marketed in the normal way. In these circumstances, the respondent raised
the present action for recovery of possession of heritable property by means of
a summary cause summons in Glasgow Sheriff Court.
The respondent claimed in that action, that, in the circumstances
described, she was entitled to recover possession of the property and asked the
court to grant a decree against the appellant, removing her, and her family,
sub-tenants and dependents, with their goods and possessions, from the said
property.
[3] After hearing
evidence, on 28 October 2005, the Sheriff granted the decree
sought by the respondent. Subsequently,
the appellant appealed to the Sheriff Principal, as a result of which the
Sheriff was requested to state a case.
In the stated case subsequently furnished by the Sheriff four questions
of law were posed. These were
"(1) Did
I err in law in rejecting the argument presented to me on behalf of the
defender, that the pursuer was not entitled to decree in her favour, in the
circumstances where she was uninfeft in the heritable subjects at 41 Westbourne
Gardens, Glasgow?
(2) Did
I err in concluding that I did not require to take
account of the factors set out in section 40 of the Bankruptcy (Scotland) Act 1985?
(3) Did
I err at the outset of the diet of proof by asking the pursuer's agents to
confirm my assumption that in light of the circumstances of the case the
defender ought to lead in the proof?
(4) Did
I err in rejecting the submission made on behalf of the defender and granting
decree in favour of the pursuer?"
[4] In the appeal
before the Sheriff Principal, questions 1 and 2 only of the questions
formulated in the stated case were argued on behalf of the appellant. In due course, the Sheriff Principal answered
questions 1 and 2 in the negative and refused the appeal, in his interlocutor
of 25 May 2006. On 28
September 2006, the Sheriff Principal, on the appellant's application to him to certify
the cause as suitable for appeal to the Court of Session, granted that
application. On 6
October 2006
the appellant appealed to this court.
[5] In the
present appeal, the appellant has tabled three grounds of appeal, of which only
grounds 1 and 3 were argued. These
grounds are as follows:
"1. The Sheriff Principal erred in law in
upholding the decision of the Sheriff that the pursuer was entitled to decree
in her favour, in circumstances where she was uninfeft in the heritable
subjects at 41 Westbourne Gardens, Glasgow.
In terms of section 31(1) of the Bankruptcy (Scotland) Act 1985 the
estate of the debtor, William Cowie, vested in the pursuer in terms of the Act
and Warrant granted in her favour as permanent trustee. However, a permanent trustee only acquires a
real right in the estate by recording a Notice of Title in the Register of
Sasines or registering such a Notice in the Land Register. The pursuer had not recorded such a Notice of
Title and accordingly remained uninfeft at the time that decree was granted in
her favour by the Sheriff on 10 May 2005.
It is an essential legal requirement in bringing an action for recovery
of possession of heritable property that the pursuer's title is completed by
infeftment. In the absence of such
infeftment, the pursuer was not entitled to decree in her favour......
3. The Sheriff Principal further erred in law in upholding the
decision of the Sheriff that the Sheriff did not require to take account of the
factors set out in Section 40 of the Bankruptcy (Scotland) Act 1985. Section 40(3)(b) requires that section 40(2)
shall apply to an action for the purposes of obtaining vacant possession of the
debtor's family home brought by the permanent trustee, as it applies to an
application under section 40(1)(b) for the Court's authority to sell or dispose
of any right or interest in the debtor's family home. Accordingly, the Sheriff required to address the considerations set out in section 40(2). Upon the alternative basis set out by the
Sheriff that he was required to take account of the factors set out in section
40 (which basis he had rejected), the Sheriff then failed to adequately set out
the evidence led before him, to address and properly apply the factors
contained in section 40(2) to that evidence, and provide adequate reasons as to
why he rejected the submissions made in that regard on behalf of the defender
that he should refuse to grant decree in the whole circumstances of the
case. In particular, the Sheriff erred
in considering that the circumstances of the attempted set off of sums due by
the pursuer to the defender, as creditor in William Cowie's Sequestrated Estates,
was irrelevant. In terms of Section 40(2)(c) the Sheriff ought to have had regard to the interests
of the creditors, of whom the defender was the majority creditor."
Submissions of the
appellant
[6] Introducing his submissions, counsel
for the appellant pointed out that, before the Sheriff Principal, the agent for
the respondent had conceded that she was not infeft in the property in
question; it had been contended that she did not need to be. The Sheriff Principal had concluded that that
concession was wrong; however, it had not been withdrawn. The Sheriff Principal had reached his
decision upon the basis that there was a distinction between ejection and
removing, a point that had not been argued before him. He had concluded that the present action was,
in substance, an action of ejection in the form of a summary cause; hence,
infeftment was not necessary. The
Sheriff Principal also dealt with the impact of section 40 of the Bankruptcy (Scotland) Act 1985. He had answered questions 1 and 2 in the
stated case in the negative, those being the only questions that were argued
before him.
[7] Counsel next
drew attention to the terms of the grounds of appeal, which we have already
quoted. He went on to mention certain
features of the background to the matter.
In 1990, an application had been brought before the court for authority
to sell the property, the appellant having refused to consent to that course. In due course, a decree had been granted
dispensing with her consent. In 1993 the
appellant and her husband had been divorced.
She had obtained assignations of certain of her husband's debts, whereby
she became a major creditor. After a
period of time, the original trustee in bankruptcy had demitted office. He had expeded a Notice of Title. The respondent had an Act and Warrant in her
favour but had not expeded a Notice of Title until after the decree pronounced
by the Sheriff in the present action, which ultimately gave rise to this
appeal. The appellant and her former
husband had continued to occupy the property.
The appellant was creditor for £67,000 which made her the majority
creditor. She had hoped that she would
be able to purchase the family home from the trustee, but in 2004 the present
application was finally brought.
[8] There were
several critical questions arising in this appeal, which could be focused by
certain propositions. First, the present
application had been brought as a summary cause for recovery of possession of
heritable property. It was a unitary
procedure. There was no justification
for having regard to the distinction that had formerly existed between actions
of ejection and removing. Secondly, it
was necessary to consider whether the respondent required to
be infeft in order to proceed with the present action. Thirdly, the question arose of whether, if
the respondent required to be infeft, she was infeft
or not. Fourthly, the question arose of
whether it was too late for her to record her title after the Sheriff's
decree. Fifthly, as regards the issue
arising from section 40 of the 1985 Act, the question arose of whether a second
application under it was necessary, even though an application had been made
and granted in 1990.
[9] Counsel went
on to review the relevant authorities.
He began by drawing our attention to Stair
Memorial Encyclopaedia, Volume 18, paragraph 142, where it was stated that,
in an action for the protection of possession of land, the pursuer must prove
that he held a right to possession in relation to that land. Except in the case of actions of removing and
ejection, however, there was probably no requirement that his title be
completed by registration or, as the case might be, by possession, and an
action lay equally in one who was uninfeft.
Reference was made also to Volume 13 of the same work, paragraph 494,
where it was stated that where a landlord was pursuing an action of removing
and was not the original lessor his title had, as a general rule, to be
completed by infeftment. A decree
obtained while the pursuer was uninfeft was not validated by his later
infeftment.
[10] Dealing with
the position of the appellant, counsel referred The Law of Civil Remedies in Scotland, Walker page 253, where it was
stated that, where a possessor had never had legal right to possess, such as a squatter,
he might be ousted by an action of ejection.
Ejection could be brought only by a pursuer who could aver and prove
that he had a title to possess. He had
to aver that the defender's occupation was precarious. Thus, where an owner of heritage had been
sequestrated, his whole rights in the heritage vested in the trustee and, so
long as the sequestration lasted, he had no right of any kind to possess or
occupy the heritage and was liable to an action of ejection. Where a possessor had had a legal right to
possess, but that had terminated, the appropriate remedy was an action of
removing. In the present case, the
appellant had had a right to occupy, originally under statute, namely as a
"non-entitled spouse" in terms of section 1 of the Matrimonial Homes (Family
Protection) (Scotland) Act 1981. What now operated was chapter 30 of the
Summary Cause Rules 2002 (S.I. 2002 No. 132).
Counsel also referred to Sheriff
Court Practice, MacPhail, 3rd Edition, paragraph 23.02 and to
section 35(1)(c) of the Sheriff Court (Scotland) Act 1971. It was quite evident from that statutory
provision that an action such as this had to be a summary cause. Although the appellant's right to possess the
property by virtue of section 1(1)(a) of the Matrimonial Homes (Family Protection)(Scotland) Act 1981 had ended on divorce, that
right to possession had existed previously.
That was a sufficient basis on which to say that the equivalent of an
action of removing was necessary in the circumstances of this case. Plainly, as had already been pointed out, the
bankrupt himself had had no protection, but the spouse of a bankrupt did, as
was evident from section 40 of the Bankruptcy (Scotland) Act 1985.
[11] Turning to the
subject of vesting, by virtue of section 31(1)(b) of
the 1985 Act, the Act and Warrant in favour of the permanent trustee had, in
respect of the heritable estate in Scotland of the debtor, the same effect as if
a decree of adjudication in implement of sale, as well as a decree of
adjudication for payment and in security of debt, subject to no legal
reversion, had been pronounced in favour of the permanent trustee. However, that did not furnish a real right, as
appeared from Burnetts' Trustee v Grainger 2004 SC (HL) 19 at pages
53-54. In this connection generally
reference was made to Scottish Land Law, Gordon,
2nd Edition, paragraph 14.23-14.25; and to The Law and Practice of Diligence, Maher and Cusine, paragraphs
9.86-9.87, where the important distinction between actions of ejection and
removing was treated. It followed from
all of these authorities that, in the present action, the court was dealing with, in effect, an action of removing, in
consequence of which infeftment required to have been achieved prior to
decree. Section 35 of the Sheriff Court (Scotland) Act 1971 had had the effect of
changing procedure, but not the requirements for the title of a pursuer. If that were not so, the requirement as
regards title would be left in obscurity.
Counsel also relied on The Law of
Landlord and Tenant in Scotland, Paton and Cameron, page 254 and An Institute of the Law of Scotland,
Erskine, I.VI.51.; also on Court of Session Practice (Tottel) section B903. In further support of his submission counsel
referred to Beriston Limited v Dumbarton Motorboat and Sailing Club 2007
S.L.T. 227 and Lowe v Gardiner 1921 S.C. 211, particularly at
pages 216 to 217, where a distinction between actions of removing and of ejection
was recognised, although deplored. In Walker v Hendry
1925 S.C. 855, it was affirmed that in the context of the relationship of
landlord and tenant, infeftment prior to the service of a notice of removal was
not essential, although it had to be obtained before decree in an action of
removing, as appeared from pages 869-871.
[12] Counsel next
turned to consider the effect of section 40 of the Bankruptcy (Scotland) Act 1985. The provisions of section 40(3)(b) were important.
It was necessary to contrast the terms of that provision with those of
section 40(1)(b), which was concerned with the
obtaining of the authority of the court to sell or dispose of any right or
interest in the debtor's family home.
The former provision, section 40(3)(b), however
dealt with a situation in which an action had been raised for the purposes of
obtaining vacant possession of the debtor's family home. It was clear that there might require to be proceedings under both of those provisions, depending
upon the circumstances of the case.
Examination of the terms of the interlocutor dated 14 November 1990 at
page 16 of the appendix showed that the proceedings then in being were
concerned with authority to sell, not to obtain vacant possession. Thus there should have been a separate
application under section 40(3)(b). However, if the respondent sought now to sell
the property, the appellant could not object having regard to the terms of the
interlocutor mentioned. Thus the Sheriff
should have been required to look at the factors listed in section 40(2) of the
1985 Act. The listed factors were not
exhaustive; regard had to be had to "all the circumstances of the case"; in
this connection reliance was placed on McMahon's
Trustee v McMahon 1997 S.L.T.
1090. It was evident from what was said
in his Note by the Sheriff at page 52 of the appeal print that, on an esto basis, the Sheriff did not consider
all of the factors referred to in section 40(2) of the 1985 Act; in particular,
he had ignored the interests of creditors.
In all the circumstances, the appeal should be upheld and the action
dismissed.
Submissions of the
respondent
[13] Counsel for
the respondent drew our attention to and relied upon the outline Note of
Submissions which she had prepared.
Turning to ground of appeal 1, having drawn our attention to chapter 30
of the Summary Cause Rules 2002, she submitted that there was no incompetency
in the form of action selected by the respondent. The action was one for the recovery of
possession of heritable property, as appeared from the terms of the summons at
page 3 of the appeal print. This form of
process was in replacement of the former procedures of summary removing and
summary ejection. The rules set out in
chapter 30 prescribed a single mode of proceeding in place of the former
separate remedies. Accordingly the
question arose of whether the former distinction between the remedies of
removing and ejection survived. In that
connection the provisions of section 35(1)(c) of the
1971 Act were important. In that provision reference was made to "actions for the recovery
of possession of heritable...property", an expression habile to embrace the
circumstances in which formerly an action of removing would have been
competent, as well as the circumstances in which an action of ejection would
have been competent.
[14] Against this
background the respondent advanced a number of propositions. First, if it were the case that the former
distinction survived, the respondent's position would be that the circumstances
of the present case were such that, under the former arrangements, an action of
ejection rather than one of removing would have been competent. That was because the possession of the
appellant was precarious; in other words, any right to occupy
that she might have had had been judicially terminated. As regards the effect of the Matrimonial
Homes (Family Protection) Scotland Act 1981 section 1, if the appellant had
enjoyed any right, either it had terminated with the making of the order under
section 40 of the 1985 Act in 1990, or any right enjoyed as a non-entitled
spouse had ceased to exist on divorce in 1993.
Against that background, ejection would have been appropriate on the
analogy of the decision in White v Stevenson 1956 SC 84. In that case, a right of ownership had been
ended by bankruptcy. In that situation,
the former owner had to be viewed as a squatter, or
precarious possessor. Thus ejection was
competent.
[15] Secondly, any
interest created by the provisions of section 1 of the Matrimonial Homes
(Family Protection)(Scotland) Act 1981 had been terminated by
judicial decree on 14 November 1990 on the application of the former
permanent trustee. Alternatively, the
decree of divorce had itself had the same effect, since, after its date the
bankrupt and the appellant were no longer spouses. In any event, the sequestration and, in
particular, the appointment of a permanent trustee had had the effect of
vesting the heritable estate in that office holder, as appeared from the
relevant statutory provisions and what was said in Burnett's Trustee v Grainger, at paragraphs 107-111. Thus the appellant's argument failed.
[16] Furthermore,
assuming that the circumstances of the present case were such that, under the
former procedure, an action of removing would have been appropriate, any defect
in title in being at the time of the raising of the action was curable and, in
this case, had been cured timeously. A
Notice of Title had been expeded by the respondent on 29
November 2005
as appeared from page 19 of the appendix.
[17] Having set
forth these propositions, counsel then proceeded to elaborate them. In relation to her first proposition, she
argued that, if the former distinction between ejection and removing continued
to possess validity, the present circumstances rendered an ejection
competent. In this connection counsel
relied on White v Stevenson and Scottish Provident Investment Company Building Society v Horne (1881) 8R.737. At page 740 of the report in the latter case
there was an apt description of precarious possession as possession by
tolerance merely. Upon the basis of what
was said in Law and Practice of the
Sheriff Courts in Scotland, Dobie, at page 417, an action of ejection could
be brought where any title held by the defender had been legally
terminated. A similar view was expressed
in Paton and Cameron, op.cit.pages 246, 247 and 284. Reliance was also placed on James Gibson & Son Limited v Gibson (1899) 36 S.L.R. 52 and Walker v Kerr
1917 S.C. 102.
[18] Turning to the
elaboration of her second main proposition, counsel said that, on the basis of White v Stevenson, in a question
with the respondent, the bankrupt himself would have been a squatter. All that the appellant could point to in
order to differentiate her situation from that of the bankrupt was section 1 of
the Matrimonial Homes (Family Protection)(Scotland) Act 1981. The question had to be asked of what impact
the sequestration itself had had.
Disregarding the 1981 Act for a moment, section 41 of the Bankruptcy (Scotland) Act 1985 provided protection for the rights of
spouses where an entitled spouse was sequestrated. However, the provisions of that section
depended upon the presentation of a petition under section 16 of that Act
within certain specified periods of time.
No such procedure had been followed in this case. That meant that the only possible basis on
which it could be contended that the appellant had had a title to occupy the
property was by invocation of section 1(1) of the 1981 Act. However, that right had plainly been ended by
decree of divorce pronounced in 1993, which amounted to a judicial termination
of the appellant's right to occupy.
[19] Counsel went
on to submit that, even if the respondent had not been infeft at the time of
the raising of the present proceedings, infeftment had been obtained on
29 November 2005; the present action had not as yet been finally
determined; accordingly, even if the present proceedings were to be treated as
an action of removing, it was recognised that if infeftment could be achieved
prior to decree, the requirements of the law would be satisfied. In connection with this submission a reliance was placed on Scottish
Land Law, Gordon, paragraph 14.25-14.26.
Further support for this view could be got from Walker v Robert
Hendry and Another 1925 S.C. 855 where, in an
action of removing, it had been held that the obtaining of infeftment before
decree was sufficient. Reference was
made to pages 869, 871 and 872. Counsel
also relied on Mackintosh v Munro (1854) 17D. 99,
in this connection. Furthermore,
in this context, the case of Marshall v Callander and Trossachs Hydropathic Company
Limited (1896) 24R. 33 showed that the date of decree was the date of final
judgment in a case. Since that moment
had not yet been reached in the present proceedings, it meant that the
infeftment which the respondent had obtained was timeous. The case of Symington v Campbell (1894)
21R.434 was an example of a situation in which a title could not be cured. In all these circumstances, there was no
substance in the first ground of appeal.
[20] Counsel then
turned to consider ground of appeal 3.
In this connection it was recognised by both parties that, on 14
November 1990, the Sheriff, on the application of the permanent trustee,
granted the order sought and dispensed with the consent of the appellant to the
sale of the property concerned in terms of section 40 of the 1985 Act, subject
to certain conditions specified in his interlocutor, which had no application
now. It was the appellant's contention
that section 40(3) imported a duty upon the respondent to make a fresh
application under section 40(3)(b) of that Act. It was submitted there was nothing in section
40 which required such a further application.
The position was that, if the property had been sold in terms of the
authority granted by the Sheriff, the purchaser would have been able, if
necessary by means of an action for recovery of possession, to have had the
appellant ejected. There was nothing in
section 40 of the 1985 Act to prevent such a step. Section 40 applied only to impose limitations
upon the actions of the permanent trustee.
Standing that position, it would be quite absurd if the permanent
trustee required to make a second application. Putting the matter in another way section
40(1) and (3) were not cumulative.
Section 40(3) had to be read as an alternative to section 40(1). The alternative nature of these statutory
provisions could also be discerned from the definition of "relevant consent" in
section 40(4) and (c) of the Act. If, in
terms of section 40(3), vacant possession of the family home had been obtained,
then there would in fact be no need for an application under section 40(1),
since there could be no "relevant consent", no person being in occupation. In all the circumstances the appeal ought to
be refused. In any event it was clear
that the sheriff had considered all relevant matters, including the position of
creditors. It was clear that, in the
circumstances, he found that the best interests of the creditors as a whole lay
in sale.
The Decision
[21] The present
proceedings commenced as a summary cause, within the meaning of section 35 of
the 1971 Act, initiated by a summary cause summons, in which the respondent
claimed that, in the circumstances described in the statement of claim, she was
entitled to recover possession of the property at 41 Westbourne Gardens, Glasgow. Within the definition of "summary
cause" enacted by section 35(1)(c) there are included
"actions ad factum praestandum and actions for the recovery of possession of
heritable or moveable property, other than actions in which there is claimed in
addition, or as an alternative, to a decree ad
factum praestandum or for such recovery, as the case may be, a decree for
payment of money exceeding £1,500 in amount (exclusive of interest and
expenses)". Despite the assimilation of
proceedings for removing and ejection in the summary cause for the recovery of
possession of heritable property by section 35(1)(c)
of the 1971 Act, it was not seriously argued before us that, as regards the
appropriate title to sue, the requirements of the law formerly applicable to
actions of removing and of ejection, respectively, had been affected by that
assimilation. It will be plain from our
narrative of the grounds of appeal and submissions that the appellant's first
main contention was that the respondent had not been entitled to decree in her
favour on account of the circumstance that, at the time that decree was granted
in her favour by the Sheriff on 10 May 2005, she was an uninfeft
proprietor. As we see it, there were two
premises underlying that submission. The
first was that, in the circumstances of this case, in which these proceedings
were to be treated as an action of removing, such infeftment was required. The second was that infeftment as at the date
when it was achieved by the respondent, 29 November 2005, did not satisfy the requirements of
law. Plainly, if either of these
premises is unsound, the appellant's contention fails. We shall examine each of these assumptions in
turn.
[22] Turning to the
first premise relied upon by the appellant, the submission was that the present
proceedings had to be seen as the equivalent of an action of removing; thus the
requirements of the law as regards title to pursue such an action were imported
into them. The argument was that the
appellant had had, in the past, a right to occupy the property under statute,
namely the Matrimonial Homes (Family Protection)(Scotland) Act 1981, and that
the existence, in the past, of that statutory right of occupation pendente matrimonio had the necessary
consequence that proceedings of the nature of an action of removing were
required. Leaving aside for a moment the
impact of section 40 of the Bankruptcy (Scotland) Act 1985, with which we deal
at a later stage, the contention was based upon the provisions of section 1(1)
of the Matrimonial Homes (Family Protection)(Scotland) Act 1981. That provision is in the following terms:
"(1) Where, apart from the provisions
of this Act, one spouse is entitled or permitted by a third party, to occupy a
matrimonial home (an "entitled spouse") and the other spouse is not so entitled
or permitted (a "non-entitled spouse"), the non-entitled spouse shall, subject
to the provisions of this Act have the following rights -
(a) if in occupation, a right to continue
to occupy the matrimonial home; ...".
It is plain that the right of occupation conferred by this
provision depends upon the status of the individual concerned as a
"non-entitled spouse". It was common
ground that the bankrupt and the appellant were divorced in 1993 thus, at that time, the appellant lost her status as a "non-entitled
spouse" by virtue of that judicial decision.
It was the contention of the appellant that, because that right of
occupation had existed previously, that was enough of a basis on which it could
be said that the requirements as regards title associated with an action of
removing applied in this case. With that
contention, we cannot agree. In James Gibson & Son Limited v Gibson at page 524 Lord Moncrieff said
this:
"I think that the process of summary
ejection only applies where the title is precarious - either where the person
proceeded against never had a title at all, or where, he having had a title, it
has been brought to an end by a competent court or in some competent manner."
In our opinion, the pronouncement of a decree of divorce by a
competent court brought to an end the appellant's status as a spouse, hence her
status as a "non-entitled spouse", and thus any title to occupy created by
section 1(1) of the 1981 Act. In
these circumstances, it appears to us that the situation is one where an action
of ejection would have been competent.
We are confirmed in that view by what is said at page 417 of Law and Practice of the Sheriff Courts in
Scotland, Dobie. Writing of an
action of ejection, the learned author states:
"To justify this form of process the
defender must either never have had a title to occupy or any such title must
have been legally terminated."
A similar view is expressed in The Law of Landlord and Tenant in Scotland, Paton and Cameron at
page 284. As already explained, such
title as was claimed by the appellant was, on any view, legally terminated on
divorce.
[23] Furthermore,
in our opinion, there exists a separate reason why the appellant's contention
in this regard is unsound. In White and Others v Stevenson it was held that the effect of earlier bankruptcy
legislation was to vest in the trustee the whole rights of the bankrupt in the
sequestrated estate. That remains the
case under the present legislation. The
court decided that, while the sequestration was in operation and the trustee
undischarged, the bankrupt had no right of any kind to occupy or possess or
deal in any way with the subjects, which, in that case were a mansion house
occupied by the bankrupt. Thus, it was
held that his occupation of the mansion house was purely precarious and that an
action of ejection was accordingly competent.
If that case reflects the correct view of the effect of sequestration on
a bankrupt, then plainly it has implications so far as section 1(1) of the 1981
Act is concerned. In terms of that
provision, the non-entitled spouse is given certain rights in the circumstances
defined in the opening words of section 1(1).
The rights are conferred upon a non-entitled spouse where one spouse is
entitled, or permitted by a third party, to occupy a matrimonial home, the
entitled spouse. Upon the basis of the
decision in White and others v Stevenson, following his sequestration,
the bankrupt in this case plainly ceased to be an entitled spouse, his whole
right in the property concerned having been vested in the permanent
trustee. If he ceased to be an entitled
spouse then it necessarily follows that the operative provisions of section
1(1), could not take effect. Thus the
spouse concerned would possess no rights under the section. If an action of ejection was competent
against the bankrupt, as was decided in White
and others v Stevenson, then an
action of ejection must be seen as competent against the spouse of the
bankrupt. Hence the first premise
underlying the appellant's contention is seen to be false, in consequence of
which the contention must fail.
[24] Turning to the
second premise underlying the contention reflected in the first ground of
appeal, it is necessary to focus upon the issue of when a pursuer in an action
of removing required to demonstrate infeftment, in
order to render the action competent. In
Scottish Land Law, Gordon at paragraphs
14.25-14.26 the learned author deals with the requirement as regards title to
sue in an action of removing. He opines
that "where the pursuer's title is in issue, he should be able to show that he
is infeft, or at least obtain infeftment in the course of the action." That view, in our opinion
is supported in Walker v Hendry and another 1925 S.C. 855.
At page 872, Lord Justice Clerk Alness, after a detailed examination of
the history of the law concluded:
"To sum the matter up, there appears
to be no case since 1756 in which it has been held that a disponee must be
infeft at the date of warning in order to give a good warning to remove. On the contrary, it has been decided that a
disponee who is not infeft before the calling in an action of removing, which
is equivalent to warning, can competently sue such an action. The reason for the old rule is recognised, viz., that warning was regarded as an
act of jurisdiction. The reason for the
new rule is also recognised, viz.,
that all that the tenant can reasonably claim is that person requiring him to
seek possession has a good title to do so.
That end can be secured by infeftment before decree, just as well as by
infeftment before warning."
A similar view was expressed in Mackintosh v Munro [1854]
17D. 99 by Lord Robertson at page 103.
[25] Standing these
opinions, the question then becomes one of identifying the date of the
decree. While it is true that the
Sheriff in the present case pronounced decree on 10 May 2005, plainly that decree has not, as yet,
become final. There was, of course, the
appeal to the Sheriff Principal, whose judgment is dated 25
May 2006,
and then the appeal to this court, in which decree will be pronounced when this
opinion is issued. Until that decree
becomes final, in our opinion, the period during which the respondent can
demonstrate a proper title has not expired.
In Marshall v The Callander and Trossachs Hydropathic
Company Limited it was held that an interlocutor requiring certain action
within a period of three months of the interlocutor taking effect did not in
fact have legal effect until judgment was pronounced in the House of
Lords. In the present case, of course,
the respondent achieved infeftment by virtue of the Notice of Title dated 6 October
2005 and recorded on 29 November 2005, that is to say after the Sheriff's
decree but before the Sheriff Principal's judgment. In these circumstances, although no longer
necessary for resolution of this matter, we conclude that, if the respondent
required to achieve infeftment before decree, meaning
final decree, she has in fact done so.
For these reasons, we consider that ground of appeal 1 possesses no
merit.
[26] Turning now to
the issue raised in ground of appeal 3, in our opinion, its determination must
depend upon a proper interpretation of section 40 of the 1985 Act. That section, so far as relevant to the issue
before this court, is in the following terms:
"40(1) Before the permanent trustee sells or
disposes of any right or interest in the debtor's family home he shall - (a)
obtain the relevant consent; or (b) where he is unable to do so, obtain the
authority of the court in accordance with subsection (2) below.
(2) Where
the permanent trustee requires to obtain the authority of the court in terms of
subsection (1)(b) above, the court, after having regard to all the
circumstances of the case, including - (a) the needs and financial resources of
the debtor's spouse or former spouse; (aa) the needs and financial resources of
the debtor's civil partner or formal civil partner; (b) the needs and financial
resources of any child of the family; (c) the interests of the creditors; (d)
the length of the period during which (whether before or after the relevant
date) the family home was used as a residence by any of the persons referred to
in paragraph (a) to (b) above, may refuse to grant the application or may
postpone the granting of the application for such period (not exceeding twelve
months) as it may consider reasonable in the circumstances or may grant the
application subject to such conditions as it may prescribe.
(3) Subsection
(2) above shall apply - (a) to an action for division and sale of the debtor's
family home; or (b) to an action for the purpose of obtaining vacant possession
of the debtor's family home, brought by the permanent trustee as it applies to
an application under subsection (1)(b) above and, for the purposes of this
subsection, any reference in the said subsection (2) to that granting of the
application shall be construed as a reference to the granting of decree in the
action."
In subsection (4), there are to be found statutory
definitions of the expressions "family home" and "child of the family" which
are to be used for the purposes of section 40.
The subsection then continues with the following definition:
"(c) "relevant
consent" means in relation to the sale or disposal of any right or interest in
a family home - (i) in a case where the family home is occupied by the debtor's
spouse or civil partner or former spouse or civil partner, the consent of the
spouse or civil partner, or, as the case may be, the former spouse or civil
partner, whether or not the family home is also occupied by the debtor; (ii)
where sub-paragraph (i) does not apply, in a case where the family home is
occupied by the debtor with a child of the family, the consent of the debtor;
and (d) "relevant date" means the day immediately preceding the date of
sequestration."
[27] Looking at the
form of section 40 and, in particular, the drafting of sub-sections (1) and
(3), in our view, there is a certain lack of lucidity as regards the intention
of the legislature. It is not difficult
to see why counsel for the appellant felt able to make the submissions that he
did in relation to ground of appeal 3.
However, in our opinion, it is necessary to consider the implications of
the draftsmanship and the interpretation which he accorded to it in reaching a
conclusion as to the proper interpretation of this section.
[28] Looking at the
words used in sub-section (1), it appears to us that that sub-section was
designed to deal with a situation where the permanent trustee wishes to
sell or dispose of a right or interest in the family home held by the
bankrupt. That will inevitably mean sale
or disposal to some third party. In
these circumstances the sub-section provides protection for the classes of
persons referred to in the definition of "relevant consent". If "relevant consent" were forthcoming, then
the sale or disposal could simply proceed.
If it were not forthcoming, then the permanent trustee would require to obtain the authority of the court in accordance with
sub-section (2). If that authority were granted unconditionally, then, again,
the sale or disposal could simply proceed.
Assuming, for the purposes of discussion that the permanent trustee were
unable to offer vacant possession of the property, nevertheless, it could be
sold or disposed of to a third party without vacant possession, no doubt, at a
reduced consideration. If that were
done, and assuming that the possessor of the property had no legal right to
remain in it, the purchaser could simply take the necessary proceedings to have
that person ejected. The purchaser would
then obtain vacant possession. It is
quite plain that the individual in possession at the time of the sale or
disposal would have no defence to such action, at least based upon the terms of
section 40 of the 1985 Act. The result
of such a series of transactions would, of course, be that the estate of the
bankrupt would be prejudiced in respect of the reduced consideration obtained
for the interest, whereas the purchaser of the interest would receive a
corresponding benefit. We cannot think
that such a situation was intended by the legislature.
[29] No doubt, for
the reason just outlined, a permanent trustee would, rather than proceeding in
the way described, wish to sell the property or dispose of it with vacant
possession. The appellant's contention
was that, in that situation, an application would be necessary under
sub-section (3), to which sub-section (2) would apply, in addition to the earlier
application under sub-section (1) which would be necessary in the event of
"relevant consent" not being obtained to the sale or disposal. If that were the case, as pointed out by the
Sheriff Principal in his judgment at pages 67 and 68 of the appeal print, the
consequences which he contemplated would follow. If the two applications came before two
different courts, it is conceivable that two different results could
emerge. Either the second court would
also grant the trustee's application, in which event further expense would have
been unnecessarily incurred; or the second court would refuse the application,
in which event the trustee would yet be able to sell but with the disadvantages
to the bankrupt estate indicated in the preceding paragraph and without any
ultimate legal protection for the occupier.
That situation would be plainly absurd.
[30] Against this
background, in our opinion, the proper interpretation of section 40 is that, if
an application for the authority of the court to sell or dispose of the
interest described in sub-section (1) is made and granted without any
conditions providing for the continued occupation of the property by the person
who has not given relevant consent - and there were no such conditions in the
interlocutor of 14 November 1990 - there is nothing in section 40 which
requires that sub-section (2) should apply to any action for recovery of
possession brought to enable the sale or disposal to proceed, in the event of a
possessor of the property declining to relinquish possession. In our view, the plain intention of the
legislation is that all the implications for the occupation of the relevant
person arising from the proposed sale or disposal are to be assessed by the
court in considering whether, and, if so, on what terms, to grant an
application under sub-section (1). Thus,
when such an application is granted, with or without conditions, there would be
no obvious need for any further such assessment in connection with the proposed
transaction. Indeed, we consider that
the grant of an application under sub-section (1), without any conditions
providing for the continued occupation of the relevant person, carries with it
the reasonable implication that the sale or disposal is authorised with vacant
possession.
[31] In our view,
the terms of sub-section (3) are designed to deal with a different situation
from that which is contemplated as one in which sub-section (1) would
operate. Sub-section (3)(a) deals with
the situation where the debtor's family home is owned in common with some other
person and where, accordingly the permanent trustee, acting in the place of the
bankrupt could insist upon an action of division and sale. It is entirely understandable that the
protection afforded by the provisions of section 40 (2) should be accorded to
the relevant persons in that situation.
As regards sub-section (3)(b), we would see
that provision as operating in the kind of situation where the permanent
trustee does not intend to sell or dispose of an interest in the family home,
but, nevertheless wishes to obtain vacant possession of that property, it might
be supposed, for the purpose of letting it for the benefit of the estate of the
bankrupt. Thus, we see sub-section (3)
as providing for situations which are alternatives to the situation with which
section 40(1) is intended to deal.
[32] In all these
circumstances, recognising that in a case where the terms of a statutory
provision are ambiguous, the court should avoid an interpretation which involves
absurdity, we have come to the view that the interpretation contended for by
the appellant must be rejected, since it involves absurd consequences. In any event, we consider that it cannot be
said, looking at the whole terms of the sheriff's decision, that he failed to
consider all relevant circumstances, including, in particular, the interests of
all creditors. Accordingly, we conclude
that ground of appeal 3 possesses no merit.
[33] On the whole
matter, we consider that the interlocutor of the Sheriff Principal should be
affirmed. Accordingly we refuse the
appeal.
