THE COURT

(Lord McGhie, Mr A Macdonald)

JOHN CAMERON v SUSAN ELEANOR ALEXANDER AND OTHERS

(Application RN SLC 43/08 – Order of 24 February 2010)

AGRICULTURAL HOLDINGS – LANDLORD TAKING POSSESSION OF BUILDINGS – WHETHER BUILDINGS PART OF LEASED SUBJECTS – LANDLORD’S OBLIGATION TO PUT TENANT IN POSSESSION – POSSESSORY REMEDIES – INTERDICT AGAINST LANDLORD CONTINUING IN POSSESSION – TENANT’S RIGHT DERIVING FROM LANDLORD – REMOVAL – REMOVING – REMEDY OF EJECTION – AGRICULTURAL HOLDINGS (SCOTLAND) ACT 2003, SEC 84.

A tenant sought a determination that the landlords had unlawfully entered into possession of certain subjects said to be part of lands let to the tenant and sought interim interdict to prevent them encroaching on the applicant’s interest as tenant in these subjects. At a debate hearing, it appeared to be accepted that the landlords had, in fact, taken possession of the subjects. They disputed that they fell under the lease. The applicant subsequently presented a minute of amendment seeking to set out more clearly the subjects in dispute and seeking an order that the landlords be ordered to remove themselves and their goods and gear from these subjects. The tenant challenged this as an incompetent remedy. It was not disputed that an action for removing or ejection was a remedy open to a tenant against third party intruders but it was contended that it was not open to a tenant against his own landlord.

HELD there was no reason why a landlord should not be ordered to remove his goods and gear from subjects which he was found to have no current right to occupy. If he was to remain in occupation it would be appropriate for the Court to pronounce a further order authorising steps to be taken to have his goods and gear taken away. In plain English that would be an order for removal. There was no reason of principle why such an order should not be pronounced. The proposed amendment should be allowed.

The Note appended to the Court’s order is as follows:

[1] The application sought a determination that the landlords had unlawfully entered into possession of certain subjects said to be part of lands let to the tenant and sought interim interdict to prevent them encroaching on the applicant’s interest as tenant in these subjects. At the hearing on 28 September 2009 it appeared to be accepted that the landlords had, in fact, taken possession of these subjects and carried out various works to convert them to residential use. The applicant subsequently presented a minute of amendment seeking, in essence, to amplify the first part of the crave by spelling out more clearly the parts of the steading said to fall within the lease. Instead of interdict they sought to have the landlords ordered to remove themselves and their goods and gear from the subjects.

The following material was cited in the discussion.

Statutes

Agricultural Holdings (Scotland) Act 2003

Books

Erskine An Institute of the Law of Scotland, 8th edition page 416
Gordon Scottish Land Law, 3rd edition, chapter 14
Hunter Law of Landlord and Tenant 178-181
Rankine Law of Leases in Scotland pages 200 to 201
Walker Civil Remedies page 249

Authorities

Johnstone v Dickson 1831 9 S 452 M’Donald v Dempster 1871 10 Macpherson 160
McIlreavie v Smith 1810 Hume 851
Scottish Supply Association Ltd v Mackie 1921 SC 882

[2] The landlords did not oppose the amendment insofar as intended to clarify the substantive dispute between the parties. Their opposition was directed at the remedy sought. Put in simple terms, their position was that, even if it was found that, as against the applicant, they had no right to occupy the subjects in question, the Court could not simply order them to remove themselves. It was not disputed that if the subjects were found to be part of the lease, the tenant would be entitled to make full physical use of the subjects. But, it was contended that any rights against the landlords would have to take the form of an order expressed in terms of an interdict designed to ensure that the landlords did not interfere with the tenant’s free occupation of the subjects or, possibly, action to enforce the landlords’ obligations in relation to the fixed equipment.

[3] It was not disputed by Mr Kermack that an action for removing or ejection was a remedy open to a tenant against third party intruders. But, it was contended that it was not open to a tenant against his own landlord. The primary argument advanced in support of this proposition was that the tenant’s right to possession derived from the landlord. It was contended that decree of removing would cut down the landlord’s title and this, it was said, would inevitably cut down the tenant’s own title. The argument gained support from the fact that neither party could point to any reported example of the remedy of removing being given to a tenant against a landlord. It also gained apparent support from a wealth of dicta and textbook material treating “removing” as if it were a remedy designed simply and solely for use against a tenant.

[4] We also note the absence of any direct reference to removing as a remedy available to compel performance of a landlord’s contractual obligation to give a tenant possession. We accept that it can reasonably be said that if removal of the landlord was a recognised option, some explicit mention of it might have been expected in textbooks dealing with tenants’ right. On the other hand it might be thought clear that some such remedy is plainly required and the absence of reference to “removal” must be seen in the context of the absence of any other discussion of methods of obtaining performance.

[5] There can be little doubt that a landlord’s primary obligation is to put the tenant in possession of the subjects let. It is also clear that, in Scots practice, the primary remedy to a contracting party is to enforce performance. It is only in special circumstances that an injured party is obliged to accept damages in lieu of such performance. There was nothing in any textbook cited to us, and we are aware of nothing, to suggest that a landlord’s breach of his primary obligation is in any way an exception to the normal rule. In short, we see no reason to doubt that a tenant normally has a right to enforce performance.

[6] It is convenient to take a simple example which happens to be the obverse of the situation as we understand it in the present case. We have no reason to doubt that if a landlord having contracted to lease a dwelling-house, tendered it full of stored items, such as old farm equipment, the tenant would be entitled to compel performance of the obligation to give vacant possession. However worded, an interdict would not provide a means of emptying the house. At some stage, a Court would require to order the landlord to remove the equipment, authorise the tenant to remove it, or grant warrant to someone else, such as an officer of the Court, to do so. The absence of explicit comment on any of these remedies is explicable on the basis that they are obvious. Something on these lines is necessary to allow a Court to give effect to its decrees.

[7] The Land Court, as a creature of statute, is restricted in the range of remedies open to it. But, the provisions of section 84 of the 2003 Act are quite wide. The Court is given power, after making a declaratory finding, to make such order or grant such remedy as it considers consider appropriate. The specific remedies listed are simply examples of types of remedy covered by the general provision. We consider that this power is wide enough to allow us to order a landlord to clear out his premises so as to give vacant possession to a tenant. If that is correct, the landlords’ challenge to the competency of the proposed crave must be based on the implicit submission that “removal” is such a clearly defined and well understood term of art that any remedy so expressed falls to be contrasted with a simple order to take away specific items and leave the subjects vacant and fully available to the tenant. The argument before us was not presented on these lines. We heard no argument that, if “removal” was a term of art, it was synonymous with “removing”.

[8] It is sufficient for present purposes to say that we have not been persuaded that there is any technical speciality which precludes an order requiring a landlord to remove in the sense spelled out in the crave: namely, to remove his goods and gear from the subjects which he has been found to have no current right to occupy. We are satisfied that if a landlord was to remain in occupation despite a finding that he had no right to do so, it would be appropriate for the Court to pronounce a further order telling him to remove himself and, if necessary, authorising steps to be taken to have his goods and gear taken away. That might be described as an order ad factum praestandum but, it would, in plain English, be an order for removal. The remedy of “removal” referred to in section 84 is not expressly limited to use at the instance of a landlord and it was not suggested to us that anything in the 2003 Act gave rise to any implied restriction. The word seems entirely apt to cover a requirement to move physically from premises following a finding that another party has a preferred right of occupation.

[9] One explanation for the absence of case law illustrating use of “removing” as a remedy other than by a landlord may be that, from early times, the scope of a “removing” has been determined by statutory provisions conferring particular jurisdictions on the Sheriff Court or Court of Session. Some indication of the history of this can be found in the judgement of Lord Johnson in Campbell’s Trustees v O’Neil 1911 SC 188. Most statutory provisions appear to have related to removing a tenant.

[10] It is also fair to say that discussion of issues of “removing” and of disputed “possession” provide several examples of potentially confusing use of language. Although the distinction between actions of “removing” and of “ejection” has given rise to much litigation, it is important to keep in mind that the end result of both may be the remedy of “ejection,” in the restricted sense, meaning the process whereby a person is physically forced out by officers of law. Even if the word “removing” has a technical meaning, limited to use in relation to termination of a tenancy, it does not follow that the effective remedy of being ordered to remove must also have a restricted meaning.

[11] The term “possess” and “possession”, are used in a variety of senses. It is important to have regard to the context: Gordon 14-09. An example of confusion may be found in the very expression “possessory remedy”. This may suggest a remedy relating to acquisition of physical possession. But it may be more correctly used simply to identify a type of action where the basis of the action is possession as opposed to a need to prove some separate right or title. Neither party made reference to the full analysis of “possession” by Professor Reid in the Stair Encyclopaedia: Vol. 18, paragraphs 151 and following. But examination of that material, and the study of underlying principle, does not appear to us to cast any doubt on the views we express.

[12] It was argued that if a tenant had his landlord “removed” from the subjects this would strike, fatally, at his own right to occupy because his possession undoubtedly derived from the landlord’s primary right, as owner, to possess the subjects. However, in practical terms “removal” is a remedy aimed at physical occupation. An order in the terms sought by the present amendment would say nothing on its face about title. There is no essential reason why an order to give up physical possession should imply any challenge to title. The issue is one of present right. There is no doubt that an order to move out could operate as a purely practical remedy. For example, we see no reason why a tenant under a long ground lease should not be able to have his landlord ejected from wrongful occupation of the subjects. It is not disputed that a landlord could be compelled to move off the subjects by virtue of an appropriately expressed interdict. It is clear that he could be prevented by way of interdict, from taking any physical possession of subjects. The basis of such an order would be that he had no right to occupy at the relevant time. An order for removal would, similarly, be based on a finding relating to a right to occupy. There would be nothing in the present Court process to suggest that the removal had any bearing whatever on title.

[13] We find no authority for the argument that every order for physical removal of goods and gear necessarily implies a finding that the remover has no right of any sort in relation to the subjects. We accept that there are dicta which deal with the matter in terms of title rather than right. It is also clear that the examples of use of removing are all of cases where the person ordered to remove has been found to have no continuing title to the subjects. But we are not satisfied that the concept of removal necessarily implies absence of title. There is no doubt that the Courts have recognised a remedy limited to regulation of a right of occupation as opposed to proprietary title: Walker, Civil Remedies: “In possessory actions no question is for decision as to title of ownership but only who has right to the actual possession and control and use of the subject in question” p 249.

[14] A subsidiary argument appeared to turn on the proposition that an order for the landlords to remove from the subjects would be inconsistent with their continuing obligations as landlords. It was pointed out that they would be entitled to enter the subjects to inspect and to carry out maintenance of fixed equipment. It was also suggested that an order for removal was permanent and would prevent the landlords taking possession on expiry of the tenancy. We are satisfied that both these concerns are misplaced. A right to enter subjects to inspect or repair is not a right to occupy. Any order for removal must be read in its context. If the landlord subsequently acquired a right to occupy he would be entitled to resume occupation. The order as sought requires present action by the landlords. Future action would, if necessary, require to be controlled by interdict. The tenant would only require to seek a further remedy if he had reasonable grounds for apprehension that the landlord was attempting to resume occupation and that he had no right at such time to do so. Any interdict could be framed to protect such rights as the landlord did have.

[15] It may be added that, as a practical Court, we think there may often be a considerable benefit in leaving the question of the precise remedy to await resolution of a substantive dispute. The question of remedy would only arise if the landlords were to refuse to yield possession despite a finding that they had no right to occupy the subjects. We think it unnecessary for an applicant to have to be forced to assume that this will be his landlord’s attitude. We would expect to allow a wide latitude to allow an applicant to adjust the terms in which a consequential remedy was sought in light of circumstances when the substantive issue was determined. We were not persuaded by the contention that it would be a breach of the landlords’ “human rights” if the remedy sought was not clearly identified from the outset. It will, of course, always be necessary to allow a respondent an opportunity to be heard in relation to any remedy sought but there seems no reason in principle for that opportunity to be given until after the substantive issue is determined. If a respondent is to argue that the question of remedy is inextricably linked with the substantive issue that can be raised as a substantive argument in relation to that issue.

[16] We accordingly allow the pleadings to be amended in terms of the Minute of Amendment. This will not preclude further submission as to the nature of the remedy necessary or appropriate at any later stage.