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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Justice Clerk
Lord Kingarth
Lady Paton
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[2009] CSIH 04
XA07/05
OPINION OF THE LORD
JUSTICE CLERK
in
APPEAL
by
CRAIG McCREIGHT
Appellant;
against
WEST LOTHIAN COUNCIL
Respondent:
_______
|
For appellant: Anderson QC, Hawkes;
Drummond Miller (for Allcourt Solicitors, Livingston)
For respondent: SPL Wolffe, QC;
Simpson & Marwick
22 January 2009
Introduction
[1] The late
Yvonne Bessant (the deceased) died on or about 7 February
1999. At the time of her death she was the sole
tenant of a dwellinghouse at 5 Fairinsfell, Broxburn, West Lothian (the subjects) under a secure
tenancy held from the respondent. She
was cohabiting there with the appellant.
On 8 April 2002 the appellant was convicted of
having murdered her. This is an appeal
against a decision of the Lands Tribunal dated 13 December
2004 on a
preliminary issue arising from an application by the appellant to purchase the
subjects.
[2] The parties
asked the Tribunal to decide whether it had jurisdiction to consider, in the
light of the appellant's conviction, whether the forfeiture rule should defeat
the application. By decision of a single
member it determined that it had such a jurisdiction. It continued the application for a hearing on
the question, reserving all other issues.
That is the decision appealed against.
The scheme of the 1987
Act
[3] A tenant of a
public sector house has a limited right to purchase it under section 61 of the
Housing (Scotland) Act (the 1987 Act) (as amended by
the Housing (Scotland) Act 2001 (asp 10)) if he qualifies
as a "secure tenant." If he seeks to
exercise that right, he must serve on the landlord a notice of application to
purchase (s 63(1)). If the landlord does
not oppose the application, it must serve on the tenant an offer to sell.
[4] If the
landlord opposes the application, it may by notice of refusal refuse it
outright, or it may offer to sell the house under section 14 of the Act, with
which we are not concerned in this case, or under any other power of sale that
it may have (s 68(1)).
[5] Where the
landlord has been duly served with an application to purchase and fails
timeously to issue an offer to sell or a notice of refusal, "the tenant" may
refer the matter to the Tribunal (s 71(1)(a)).
If the Tribunal finds that the landlord has so failed, it may in effect complete the purchase procedure as if
it were the landlord (s 71(2)(a)).
The history of the application
[6] For a
considerable time after the death, it was not suspected that the appellant had
murdered the deceased. On 22
February 1999
the respondent accepted the appellant as the tenant of the subjects in
succession to the deceased (1987 Act, s 52(2)(a)(ii)).
[7] On 6
June 2002,
about two months after his conviction, the appellant applied to purchase the
subjects. On 29 November
2002 the
respondent made an offer to sell. The
appellant did not accept it and his application lapsed. The respondent avers that it became aware of
the appellant's conviction "from about November 2002," but it does not specify
whether that happened before or after it made the offer to sell.
[8] On 10 March 2003 the appellant applied again to
purchase the subjects. The respondent
failed to serve on him an offer to sell or a notice of refusal. On 10 August 2003 the appellant applied to
the Tribunal for a finding in terms of section 71(2)(a) of the 1987 Act (supra) and called on the Tribunal to
take such steps as might be required to complete the purchase. Relying on the decision of the First Division
in East of Scotland Water Authority v
Livingstone (1999 SC 65), he averred that, in consequence of its failure to
serve an offer to sell or a notice of refusal, the respondent could no longer
dispute his right to purchase.
[9] The
respondent relied inter alia on the
forfeiture rule (cf Cleaver v Mutual Reserve Fund Life Ass, [1892] 1
QB 147; Burns v Secretary of State for
Social Services, 1985 SC 143). It
contended that the appellant could not acquire the benefit of the tenancy in
consequence of the murder and therefore had no right to buy; and that the
Tribunal had jurisdiction to decide the point.
East of Scotland Water Authority v Livingstone
[10] In this case
the first respondent applied with his wife, the second respondent, jointly to
purchase the subjects of let. The
appellant failed to serve a timeous notice of refusal. The respondents applied to the Tribunal under
section 71. The appellant agreed that
the first respondent was its tenant; but it pled that he had no right to
purchase because his tenancy was not a secure tenancy. The First Division held by a majority that
since the appellant had failed to serve a notice of refusal, it was too late
for it to take the point.
The decision appealed
against
[11] The Tribunal
considered that since an application under section 71 had to be made by the
tenant, it was open to the respondent to plead that the forfeiture rule should
be applied. It considered that the
respondent's failure to serve an offer to sell or a notice of refusal did not
prevent it from raising that question.
It distinguished East of Scotland Water Authority v Livingstone (supra) since the
appellant in that case agreed that the first respondent was its tenant. The Tribunal also held that it had
jurisdiction in an application under section 71 to decide the point.
Conclusions
[12] There are two
questions in this appeal; namely (1) whether, regardless of the forfeiture
rule, the Tribunal was bound to grant the appellant's application simply
because the respondent had failed to serve an offer to sell or a notice of
refusal; and (2) if not, whether the Tribunal had jurisdiction to decide whether
the rule should be applied.
(1) Effect of failure to serve an offer to
sell or a notice of refusal
[13] The right to
buy provisions apply only in relation to a secure tenant of a relevant public
sector dwellinghouse and then only when the qualifying conditions are made
out. An application under section 71 can
be made only by "the tenant." Although
certain further qualifications restrict the right of purchase, including the
requirement that the applicant should be a "secure tenant," it is plainly a
precondition of the Tribunal's jurisdiction under section 71 that the existence
of the landlord-tenant relationship between the parties is not disputed. I agree with the Tribunal that East of Scotland Water Authority v Livingstone (supra) is distinguishable
since in this case the existence of a tenancy is disputed. If I am right, it is unnecessary for us to
consider the soundness of the majority view in that case.
[14] Counsel for
the appellant has taken the ratio of
that case a stage further by submitting that the respondent's failure to serve
an offer to sell or a notice of refusal precludes it from even denying the
appellant's right to be tenant. On that
argument, it would seem to follow that a squatter in a public sector
dwellinghouse who made a speculative application to purchase it would become
entitled to enforce the purchase if by an administrative error the authority
failed to serve a notice of refusal. In
my view, section 71 cannot have the effect of conferring a right to a
conveyance upon an applicant whose right to the tenancy is in dispute.
[15] In my opinion,
the respondent has pled a stateable case on the forfeiture rule. A secure tenancy of a public sector
dwellinghouse is a valuable right. Its
incidents include the right to a fair rent, the prospect of a succession to the
tenancy by an entitled relative and, not least, the right to purchase the
dwellinghouse at a discount to open market value. In my opinion, it is arguable, to say the
least, that the right to such a tenancy should not be available to one whose
claim to it has been made possible by his own crime.
[16] If I am right,
it follows that the appellant's right to the tenancy is an issue to try. That issue, and the related issue of personal
bar, must be resolved before any question under section 71 can arise.
(2) Jurisdiction
of the Tribunal
[17] This appeal
raises the important question as to the scope of the Lands Tribunal's
jurisdiction in an application under section 71 of the 1987 Act. The Tribunal decided that it had jurisdiction
to decide whether or not the forfeiture rule should defeat the application in
the circumstances of the case. In my
opinion, the Tribunal misdirected itself on the point.
[18] The Tribunal
is a creature of statute and has only those jurisdictions that statute has
conferred upon it. This principle was
established in relation to the Land Court in Garvie's Trs v Still (1972 SLT 29).
It was held in that case that a jurisdiction under the Agricultural
Holdings (Scotland) Act 1949 to decide on the merits of the landlord's
objection to receive the acquirer of a deceased tenant's tenancy did not
entitle the Land Court to decide whether the respondent was the acquirer at all
(ibid, Lord Justice Clerk Grant at 36; cf Brodie v Ker; McCallum v McNair,
1952 SC 216; Craig and Anr, Apps 1981
SLT (Land Ct) 12).
[19] The Tribunal
has power to explicate its own jurisdiction in matters affecting the validity
of an application; for example, by deciding whether an obligation that the
applicant seeks to have varied is a valid land obligation (Macdonald, Petr, 1973 SLT (Lands Tr) 26). In an application under the present
provisions, it has power to decide whether there has been a valid offer to sell
(Thomson v City of Edinburgh District
Council 1982 SLT (Lands Tr) 39). In
all cases it has the power to consider whether its jurisdiction has been elided
through a failure to observe a time limit (ibid).
[20] The
explicatory power continues throughout the course of an application. The Tribunal may therefore refuse an
application if it should become apparent that a precondition of its
jurisdiction is no longer satisfied. In McKay v City of Dundee District Council (1996 SLT
(Lands Tr) 9) the applicant's tenancy was terminated while her application to
purchase was pending. The Tribunal held
that it could not complete the proposed purchase under section 71. In Ross
v City of Dundee Council (2000 SLT
(Lands Tr) 2) the applicant died during the course of the application. Her executor, who sought to continue it, had
no right to purchase. The Tribunal
dismissed the application. Counsel for
the respondent submitted that these decisions establish that the Tribunal has a
jurisdiction under section 71 to consider the validity of a tenancy where that
question is in dispute. I do not
agree. They establish the proposition
that where an essential precondition of jurisdiction is no longer satisfied,
the Tribunal's jurisdiction ceases.
[21] In my opinion,
section 71 confers on the Tribunal a strictly limited jurisdiction. It arises only where the applicant is agreed
to be the tenant of the subjects and only where the landlord has failed to
issue either an offer to sell or a notice of refusal. Its power under that section is
administrative or executorial only (cf East
of Scotland Water Authority v Livingstone, supra, at Lord Prosser at p 80E-F; Thomson v City of Edinburgh District Council, supra, at p 45).
[22] In this case
the respondent contends that the appellant had no right to succeed to the
deceased's tenancy and, in consequence, has no right to purchase. That is not an incidental matter that the
Tribunal can determine by way of explicating its jurisdiction (cf Eagle Star Ins Co v Simpson, 1984 SLT
(Land Ct) 37, Lord Elliott at pp 40-41).
It is a fundamental and antecedent question on which the Tribunal's
entire jurisdiction depends.
[23] The question
of the existence of the landlord-tenant relationship may affect third party
rights and interests (cf Garvie's Trs v
Still, supra, Lord Justice Clerk
Grant at p 36). In a case such as this
the question whether the forfeiture rule disqualified the spouse or cohabitant
of the deceased tenant could affect the interests of any member of the deceased
tenant's family who, in default of the spouse's or cohabitant's claim, might
have a claim to the tenancy (cf 1987 Act, s 52(1),(2)). In my opinion, the question whether the
appellant has succeeded to the tenancy can be determined only in the ordinary
courts. I am confirmed in this view by
the provisions of the Forfeiture Act 1982 which might be invoked by a party in
the appellant's position in a case such as this. With the express exception of social security
claims (s 4), the limited power to modify the application of the forfeiture rule
under that Act can be exercised only by a court (s 2).
[24] In my view,
the Tribunal should have sisted the application so that the dispute about the
existence of the tenancy could be resolved in the courts.
[25] Counsel for
the respondent submitted that Burns v
Secretary of State for Social Services (supra)
and R v Chief National Insurance
Commissioner, ex p Connor ([1981] 1 QB 758) are authority for a general
principle that a tribunal can apply the forfeiture rule wherever it is
appropriate on the facts. I do not
agree. In both cases the commissioner
had jurisdiction to decide whether a widow was entitled under the relevant
legislation to a widow's allowance. The
breadth of that question entitled the commissioner to decide whether the
widow's claim was extinguished on a principle of public policy. In this case the scope of the Tribunal's
jurisdiction is defined by the section.
Disposal
[26] Since this
appeal was taken on the basis that the Tribunal was bound to grant the
application, I propose to your Lordship and your Ladyship that we should refuse
it. However, since I consider that the
Tribunal erred on the question of jurisdiction, I propose that we should return
the case to the Tribunal with a direction to proceed as accords.
|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Kingarth
Lady Paton
|
[2009] CSIH 04
XA07/05
OPINION OF LORD KINGARTH
in
APPEAL
by
CRAIG McCREIGHT
Appellant;
against
WEST LOTHIAN COUNCIL
Respondent:
_______
|
For appellant: Anderson QC, Hawkes; Drummond Miller (for Allcourt Solicitors,
Livingston)
For respondent: SPL Wolffe, QC;
Simpson & Marwick
22 January 2009
[27] I agree with the
opinion of your Lordship in the chair and have nothing to add.
|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Kingarth
Lady Paton
|
[2009] CSIH 04
XA07/05
OPINION OF LADY PATON
in
APPEAL
by
CRAIG McCREIGHT
Appellant;
against
WEST LOTHIAN COUNCIL
Respondent:
_______
|
For appellant: Anderson QC, Hawkes;
Drummond Miller (for Allcourt Solicitors, Livingston)
For respondent: SPL Wolffe, QC;
Simpson & Marwick
22 January 2009
[28] I agree with
your Lordship in the chair and have nothing to add.
