Decision of the Scottish Land Court

Mrs Irene Margaret Bray (Applicant)

Case reference SLC 64/15
Lord Minginish, Chairman and Mr John A Smith
12 May 2016

[1] This is an application by Mrs Irene Margaret Bray of West Side, Cunningsburgh, Shetland, to have it determined whether a merk of land at Fladdabister, Shetland, is a croft and, if so, whether she is the tenant. This merk of land extends to 2.54 ha and has been occupied by the applicant as part of the croft of West Side since the tenancy of West Side was assigned to her by her father in 1993. However there has been no known landlord, or land owner, of this merk of land since William Alexander James Halcrow emigrated to South Africa and was last heard of by way of letters written to relatives in Shetland in 1913 and 1914. In those circumstances no rent has ever been asked of the applicant or her predecessors in tenancy (if she is tenant) since then.

[2] The applicant wishes to buy this land along with the rest of the croft. The rest of West Side, comprises (at least) two other merks of land whose history is closely linked with this merk. They too are without known landlord but, according to the application, whereas the Queen’s and Lords Treasurer’s Remembrancer, to whom the applicant has applied for a title to all three areas of ground, is willing to grant title to the other two merks on the strength of a decision of this court dated 25 November 1935 finding one of her predecessors to be a landholder in terms of the Small Landholders (Scotland) Act 1911, he is unwilling to grant title to this area unless and until the applicant is found to be its crofting tenant under the Crofters (Scotland) Act 1993.

[3] The application was advertised in the Shetland Times on 28 August 2015. It drew a response from Mr Stuart Hill of Ocraquoy, Cunningsburgh, seeking to represent certain parties, said to be descendants of Ann Halcrow and Robert Bain (see later), now living in Australia and New Zealand, which failing, seeking to enter the case in his own right. After sundry procedure, by our order and note of 24 November 2015 we refused him permission to represent these parties and by our order and note of 4 March 2016 we found him not to have title and interest to enter the case in his own right. The earlier of these two orders also ordered intimation of the application on the parties whom Mr Hill had sought to represent and this was done, postally, on a 42 day induciae. Nothing has been heard from them or on their behalf.

[4] The application is therefore without a contradictor but we were not prepared to grant it – standing the absence of a landlord and rent – without further and better specification of the applicant’s case. So we gave her an opportunity of amending the application, which she has now done. It appears that, beyond these amendments, nothing else can usefully be added to the pleadings as they now stand so the matter has come before us for a final decision.

[5] After careful consideration we have decided to grant it. That is on, essentially, the same foundation as the Court in 1935 declared the then applicant, Mr Malcolm Halcrow, landholder of the other two merks. That basis was a letter written by the said William A J Halcrow from South Africa on 28 October 1913 stating his desire that William Halcrow, the (then) applicant’s father, was to work the two merks and his sister, Mrs Ann Halcrow or Bain, was to work the single merk (the present subjects). No rent was to be payable but the occupiers were to pay the rates and any other expenses exigible. Although the letter makes no mention of her, the two merks were at that time occupied by W A J Halcrow’s sister, Mary Agnes Halcrow, and William Halcrow’s role was to assist her in working the land in return, essentially, for his keep, as he had assisted her parents before her.

[6] Mrs Bain having written to Mr W A J Halcrow to protest these arrangements (she sought an equal sharing of the whole three merks), the arrangements seem to have been confirmed by W A J Halcrow in a second letter, this one dated 5 May 1914. The significance which the Court then attached to them was that they amounted to acknowledgements of existing tenancies; of the two merks by Miss Halcrow and the single merk by Mrs Bain. Since the applicant could trace his claim to the tenancy of the two merks from Miss Halcrow, the Court found him to be the landholder.

[7] Although the 1935 litigation was not concerned with the single merk, that much of its history appears from the Court’s then judgement. We see no reason not to apply the same approach to it as the 1935 decision applied to the two merks. Accordingly, we find that Mrs Bain was the landholder at the time of her death on 2 March 1934, when she was succeeded as such by her son Robert.

[8] All of that comes from the 1935 judgement. We take up the history of matters since then from the applicant’s pleadings, added by way of amendment as aforesaid. At Statement of Fact 3 she says:

“It is the Applicant’s understanding that the unwritten tenancy of the 1 merk holding was the subject of an unwritten assignation by Robert Bain to her grandfather at some point between 1935 and 1942 and thereafter the Combined Land [the aggregate of all three merks] was occupied and farmed by her grandfather as tenant of both the one merk and two merk areas. It is the Applicant’s understanding that her father occupied and farmed the Combined Land as tenant from 1942 onward when, on the death of her grandfather, her father returned from the Navy and succeeded to the tenancies of the one merk and two merk areas. On her father’s death the Applicant succeeded to the tenancies of both the one merk and two merk areas. The Combined Land has therefore been continuously occupied and maintained by the applicant’s father and subsequently the applicant since 1942. The applicant’s father and the applicant have fenced and drained the land and have met all costs in relation to maintenance.”

[9] Two things about that narrative give us pause. Firstly, according to a family tree lodged by Mr Hill, the applicant appears to be the grand-daughter of Malcolm Halcrow, the applicant in the 1935 application, and the great-grand-daughter of William Halcrow, who assisted Miss Mary Agnes Halcrow with the working of the two merks, as aforesaid, and was her universal legatee when she died in 1932. Upon her death her sister, Mrs Bain, contested the will by which she left her whole estate to William Halcrow, saying that there had been a subsequent one which superseded it. There was litigation on the matter in Lerwick Sheriff Court in which Malcolm Halcrow was the pursuer. In the course of the litigation Mrs Bain died and the action continued to be defended, but unsuccessfully, by her son, Robert. It is therefore asking a lot to have us believe that Robert Bain, having lost any claim he had to the two merks, would have assigned the tenancy of the single merk to Malcolm Halcrow so soon afterwards but he may have done, perhaps in a spirit of resignation, despair or acute financial need (according to Mr Hill’s representations he spent some time in the Lerwick Poorhouse shortly before his death). But, however it came about, there seems no doubt that shortly after the litigation Malcolm Halcrow became occupier of the single merk in addition to the other two.

[10] Secondly, the reference to the applicant having succeeded to the tenancy on her father’s death is at odds with the letter from the Crofters Commission, dated 16 January 2013, which speaks of her having been “assigned the tenancy from John W Halcrow” but both speak of a transfer of the tenancy from her father to the applicant, so the point is of no great moment.

[11] In those circumstances, it appears never to have been doubted that this merk was a landholding (that was not disputed in 1935) and is now a croft. Accordingly we have no hesitation in making a determination to that effect.

[12] As to the applicant being the crofting tenant, it appears that rent was waived by W A J Halcrow in terms of his said letters and none of his successors as owners of the land has since taken an interest in the matter except to the extent of Mr Hill’s foresaid intervention on behalf of parties who have now, apparently, decided to take the matter no further. Certainly no one seems ever to have taken steps to put her, her father or grandfather off the land. In the absence of a contradictor the applicant’s version of matters is unchallenged and is not so inherently implausible that we cannot accept it. On the contrary, we do accept it. Accordingly on the basis, as was found by the Court in 1935, that tenancies then existed (although the Court’s decision related only to the other two merks nothing differentiates the single merk, in terms of W A J Halcrow’s letters) but payment of the rent was waived by the landlord we hold that the applicant is the tenant of the croft comprised by this merk, a demand for rent never having materialised but the conditions on which it was held by Mrs Bain, as to payment of rates and other expenses, having been honoured.

[13] Most of the foregoing derives either from the 1935 decision or the applicant’s pleadings. But we have occasionally referred to material lodged by Mr Hill. We should explain the basis on which we do that, standing that we allowed him neither to represent the parties abroad nor to enter the case on his own right. We have considered ourselves entitled to look at his material for clarification of some detail of the narrative but we have not considered ourselves entitled to engage with the arguments advanced by Mr Hill standing our decisions on his locus.