MR A.P. AND MRS. M.P. AGAINST D.O. AND S.O.

---

2013SCDUM34

 

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

COURT Ref. No.: SD 17/13

                                               JUDGMENT

                                                                    of

                                   SHERIFF GEORGE JAMIESON

         in the summary cause for recovery of possession of heritable property

 

MR A.P. AND MRS M.P                         PURSUERS          

                    

                                    against

D.O. AND S.O                            

  DEFENDERS           

 

 

 

 

 

 

                                                                                                                                          

FINDINGS IN FACT AND IN FACT AND LAW

 

Findings in fact

 

• [1].The first pursuer is aged 83 and the second pursuer is aged 68. The first defender is aged 54 and the second defender is aged 50. The pursuers purchased their house in 1980, along with an adjacent cottage they intended to let out as a holiday cottage. In 2007 they built a second house in their vegetable garden, with the intention of residing in it, the subjects of this litigation.

   

• [2].Starting in December 2004, the defenders began to holiday in the pursuers’ holiday cottage on various occasions. They and the pursuers developed a close relationship. During their stays, they often helped the pursuers with tasks such as collecting firewood and gardening.

   

   

• [3].During construction of the subjects, the first pursuer had a heart attack and the pursuers abandoned their plans to move into the subjects as his health would not permit them to make this move. They had previously entered into discussions with the defenders with a view to the defenders renting their house from them after they had moved into the subjects.
• [4].Now that the first pursuer was unable to move into the subjects, the pursuers and defenders arranged that the defenders occupy the subjects on the understanding the defenders would assist them with inter alia collecting firewood and gardening. The defenders agreed to this arrangement and gave up their council tenancy in England to move into the subjects after construction. During construction of the subjects, the second defender was given a say by the pursuers in the internal layout of the subjects.

   

• [5].After the subjects had been built, the defenders moved in to it in around February 2008 and have occupied it as their principal home ever since. After moving into the subjects, the defenders initially provided assistance to the pursuers by helping them collect firewood and with gardening. During this period the second defender also assisted the second pursuer in running the pursuers’ bed and breakfast business at the holiday cottage. She was paid £40 per week by the pursuers for this assistance.

   

   

• [6].When the parties’ arrangements commenced, the pursuers did not think that they might charge rent for the defenders’ occupancy of the subjects. The second defender explained to the second pursuer that, as the defenders were in receipt of state benefits and had obtained housing benefit in England, the pursuers would be able to claim rent from the defenders which would be paid to the pursuers as housing benefit by the local authority.
• [7].The second pursuer and defender thereafter attended at the local housing office. A council officer assessed rental value for the subjects at around £400 per calendar month. The parties thereafter agreed the pursuers would accept rent for the subjects at around £300 per calendar month as this was the maximum amount the defenders would receive from the local authority by way of housing benefit. The parties did not enter into any form of written lease in respect of the defenders’ occupancy of the subjects.

   

• [8].The parties did not by any agreement made in writing between and signed by them expressly and particularly specify the number and kinds of services to be performed by the defenders in exchange for their occupancy of the subjects. The parties’ personal relationship began seriously to deteriorate in 2010. An altercation took place between them in July 2010. They are no longer on speaking terms.

   

• [9].Shortly after this incident, the first pursuer informed the first defender the defenders were no longer expected to carry out any services for the pursuers. The defenders have not carried out any such services since 2010. In 2012, the pursuers proposed to the defenders, via the pursuers’ law agents, that the defenders enter into a short assured tenancy with them in respect of the subjects. The defenders declined this offer. On 10 October 2012 sheriff officers served a Notice to Quit and Notice of Intention to Raise Proceedings for Possession of the subjects on each defender.

   

• [10].The second defender has considered finding alternative local accommodation. She has not been able to find accommodation she considers suitable for occupation by her and the first defender at a maximum rental of £350 per calendar month, the maximum amount of housing benefit she and her husband are currently entitled to. One property she viewed had a rental value of £600 per calendar month and another £550 per calendar month. Both defenders wish to remain residing in the local area. They like it there. They feel settled in the area. They do not intend to return to England. They have no savings and their income derives entirely from state benefits. They cannot afford to pay rent for the subjects in excess of £350 per calendar month.

   

  Findings in fact and in law

   

• [11].The pursuers are landlords and the defenders are tenants in respect of the subjects. The tenancy therefor was originally a contractual assured tenancy in terms of section 12 of the Housing (Scotland) Act 1988(“the 1988 Act”). The contractual assured tenancy was terminated by the Notice to Quit with effect from 15 February 2013. Since then, the tenancy has been a statutory assured tenancy within the meaning of section 16 of the Housing (Scotland) Act 1988(“the 1988 Act”). The rent due to the pursuers under the contractual assured tenancy was approximately £300 per calendar month (corresponding to the amount of housing benefit received by the defenders).The duration of the contractual assured tenancy, being a verbal agreement, was for an implied period of twelve months.
• [12].It renewed by tacit relocation on a year by year basis until terminated by the Notice to Quit. The pursuers are not entitled to recover possession under Ground 1(b) of schedule 5 to the 1988 Act. The defenders are not entitled to acquire the pursuer’s house, holiday cottage or the subjects as their own property on death of the pursuers. Their right to occupy the subjects is entirely dependent on their being statutory assured tenants of that property.

   

   

  NOTE OF REASONS FOR MY FINDINGS IN FACT AND IN FACT AND IN LAW AND MY DECISION

   

• [13].It was agreed the pursuers could only recover possession of the subjects on an order of court justified by reference to one or more of the grounds in schedule 5 to the 1988 Act established as a matter of fact.

   

  Law

   

• [14].Scots law generally requires leases or, distinguished therefrom, rights to occupy or use land, to be in writing[1]. An exception is made in the case of a tenancy or right of occupancy or use of land granted for not more than one year[2]. Leases that are given verbally to endure for a term of years are good against neither party for more than one year[3]. The essentials of a tenancy (as opposed to some lesser “right to occupy” lands), whether in respect of agricultural or other subjects of let are a contract:

   

  1. With consensus in idem constituted in the manner required by law;
  2. For the use and enjoyment of heritable property;
  3. In return for a rent; and
  4. For a period specified or ascertainable[4].

      

• [15].In the context of the present case, the essentials required for constitution of a lease in favour of the defenders in respect of the subjects focus on Rent and The Term. Neither of these terms was reduced to writing as there was never any written lease signed by the parties. What does the law say about each of these?

   

• [16].So far as rent is concerned, the common law recognises that rent may be “in money, grain or other produce of the subject”[5] or “money, the fruit of the grounds or services”[6] (emphasis added)[7]. As the subjects were not an agricultural tenancy, rent in terms of grain, produce or fruits[8] of the grounds, is not relevant to this case. However, although the law permits services, rather than, or presumably in addition to money rent, to be rendered under a lease in exchange for occupancy of premises, this appears subject to the provisions of section 21 of the Tenures Abolition Act 1746.

   

• [17].This is in the following terms:

   

  Tacksmen discharged from all services, &c. not mentioned in the tack, &c.E+W+S

  “And whereas it hath been frequently practised in Scotland, to lett lands to tenants or tacksmen, reserving or expressing, over and above the certain rents and duties payable for the same, services used and wont, or services indefinitely, or other general words of the like nature, without specifying or ascertaining the same; which practice is liable to be abused, is productive of disputes between landlord and tenant, and subject to divers inconveniences; from and after the first day of July in the year of our Lord one thousand seven hundred and forty-seven, no tenant or tacksman of any lands or heretages in Scotland, by virtue of any lease or tack which shall be made in writing, or by verbal agreement, tacit relocation, or otherwise, after the said first day of July, or by virtue of the prorogation of any lease or tack made before the said first day of July, or any assignee of any such lease or tack, shall be obliged or liable to perform any services whatsoever to his heretor or landlord other than such as shall be expressly and particularly reserved and specified, and the number and kinds thereof enumerated and ascertained in some written lease or tack, or by some agreement made in writing, and signed by the parties thereto, or some persons authorized by them, any former law or usage to the contrary notwithstanding”^[9].

   

• [18].Commenting on section 21 of the 1746 Act, Erskine noted:

   

  “Clauses were formerly thrown into most tacks, obliging tenants to services indefinitely…but by the Act…tenants are exempted from all services that shall not be specially mentioned, either in their tacks, or in a separate writing”[10].

   

   

• [19].It is not necessary for me to determine whether a lease ever came into existence. The parties have subsequently acted on the assumption that the defenders have possessed as tenants since 2008. For instance, the pursuers treated the defenders’ right to occupy the subjects as under a lease, as evidenced by their service of Notices to Quit on the defenders and the raising of these proceedings.

   

• [20].The only point arising from all this is that, as no term for the verbal lease was ever agreed, I consider the common law operated to imply a lease for a period of twelve months[11]. I have accordingly made a finding in fact and in law to that effect. Since a statutory assured tenancy has now come into assistance, this is important to the parties for fixing the term of that tenancy.

   

   

  Grounds of Decision including Questions of Law

   

• [21].In order to recover possession of subjects let under a statutory assured tenancy, the landlord must, as an essential procedural requirement, serve a statutory notice on the tenant, known as form AT6, specifying the grounds of possession (1988 Act, section 19(1)(a) and (3)(a)). No issues arise in this case about non-service of such Notice or Notices or their want of conformity to the prescribed form.

   

• [22].Instead, in this case, the pursuers served an AT6 on the defenders on 10 October 2012 specifying Ground 1 (b) (pursuers’ productions 2 and 3). They subsequently served a second AT6 on the defenders specifying Grounds 11 and 12 (pursuers’ productions 4 and 5).

   

• [23].At proof, the pursuers’ agent made a motion in terms of section 19(2) of the 1988 Act, opposed by defenders’ agent, that these Notices “be altered or added to with the leave of the sheriff” to include Grounds 13 and 17. I reserved consideration of that motion along with all other issues in the proof when making avizandum on 28 February 2014. I shall deal with this and the various other issues arising at the proof under the following headings discussing each of these Grounds:

   

  Ground 1(b)

   

• [24].There were two issues about Ground 1(b). Firstly, it allows a landlord to recover possession of the subjects if:

   

  “at least one of them requires the house as his or his spouse’s only or principal home”.

   

• [25].”Requires” in this Ground means “wants” (cf Kennedy v Dunne [1977] QB 837). The pursuers therefore do not have to show a need to occupy the subjects as their only or principal home or that their wishes to do so are reasonable; however, their desire to occupy must be a genuine one exercisable now or, at any rate, within a reasonable time (Kennedy v Dunne [1977] QB 837).

   

• [26].The AT6 states that the house was built by the landlords for their own occupation and they now require it due to their age and medical conditions. However, the second pursuer accepted in her evidence that while their original intention in building the subjects was to occupy it themselves, that intention altered when her husband had his heart attack. The first pursuer acknowledged in his evidence that his health did not permit them to occupy the subjects at this time. The pursuers’ original intentions in regard to the subjects are set out in their letters to HMRC at their productions 8 and 11.

   

• [27].The pursuer’s agent submitted that what mattered now was the pursuers’ present intention to recover possession of the subjects. Had it not been for the first pursuer’s health problems that intention would have been carried through. There was nothing special in the adaptation of the house to meet the defenders’ requirements that altered this.

   

• [28].Defenders’ agent stressed that the first pursuer had stated in evidence he had no intention to move into the subjects due to his health difficulties. She submitted there was no genuine intention that the pursuers required the subjects as their only or principal home at this time or within a reasonable time.

   

• [29].I prefer defenders’ agent’s submission in relation to Ground 1(b). Plainly, on the evidence of both pursuers at proof, they had no intention at that time or within a reasonable time thereafter to occupy the subjects. This was a continuation of their position as set out to HMRC in their productions 8 and 11. The pursuers are therefore not entitled to recover possession under Ground 1(b).

   

• [30].However, if I am wrong in that conclusion, I state my opinion in regard to the second issue arising in connection with Ground 1(b). This is that, in terms of the preamble to Ground 1 itself, it may not be invoked at all by a landlord unless not later than the beginning of the tenancy the landlord gave notice to the tenant of his intention to recover possession under this Ground.

   

• [31].However, the preamble to Ground 1 also provides that if of the opinion it is reasonable to do so, the sheriff may dispense with this requirement. The circumstances in which this may be done were considered by the Court of Appeal in Boyle v Verrall (1997) 29 HLR 436; there is no need for these circumstances to be exceptional. It is a matter of discretion for the sheriff in each case.

   

• [32].Defenders’ agents submitted no such discretion should be exercised. She considered this would be unfair to the defenders as although the pursuers’ original intention was to occupy the subjects, they had actually agreed that the defenders would occupy the property at the time of its construction. The defenders did not think, at that time, this decision would ever be reversed and they had not agreed to vary their original agreement with the pursuers.

   

• [33].Pursuers’ agent submitted the pursuers had been naïve. They had no prior experience of leases. Had they taken legal advice at the outset, the defenders would have obtained only a short assured tenancy. They had been unaware of the significance of a written lease. He submitted they had been taken advantage of by the defenders, who explained in their evidence they had previous experience of a tenancy and who had declined to sign a short assured tenancy.

   

• [34].Had the matter arisen for decision, I would not have been of the opinion it was reasonable to dispense with Notice in respect of Ground 1(b). Firstly, I do not accept that the defenders had the type of sophistication alluded to by pursuers’ agents to dupe the pursuers into occupying the subjects without a lease. Their previous experience of leasing property was as council tenants under English law and I do not think they would have known about the need for a written lease to create a short assured tenancy under Scots law.

   

• [35].Indeed, the original request the defenders occupied the subjects appears from the defenders’ evidence to have come from the pursuers - to meet their needs for assistance in inter alia collecting firewood and gardening. Before the parties’ relationship broke down, they believed they would be residing at the subjects for the rest of their lives.

   

• [36].Dispensing with Notice would in my opinion sanction an attempt by the pursuers to change their actual agreement with the defenders. Although the pursuers might have originally wanted to live in the subjects, they actually contracted with the defenders that they were to live in the subjects. They made no agreement, even verbally with the defenders, that they would be able to move in there at some point in the future. In my opinion, there is currently no compelling need they live there in preference to the defenders. Finally on this point, I am not persuaded that the pursuers’ naivety or failure to obtain legal advice before allowing the defenders the right to occupy the subjects makes it reasonable to dispense with the Notice requirement attached to Ground 1(b). This is because I see no compelling reason to relieve the pursuers of the consequences of their naivety any more than the defenders should be relieved of the consequences of their naivety in entering into their arrangements for occupancy of the subjects (see infra).

   

   

  Grounds 11 and 12

   

• [37].I think both these Grounds fall to be considered together. The AT6 relating to these Grounds stated they applied:

   

  “in respect [the defenders] have persistently delayed in performing services for the Landlord which services were agreed to be taken to account of [their] liabilities in respect of rent”.

   

• [38].Ground 11 refers to the tenant having:

   

  “persistently delayed paying rent which has become lawfully due”.

   

• [39].Ground 12 refers to “some rent lawfully due from the tenant” being unpaid:

   

  1. On the date on which proceedings for possession are begun; and
  2. In arrears at the date of service of the notice [under section 19] relating to those proceedings[12].

      

• [40].Pursuer’s agent submitted with reference to Ground 11(he did not appear to mention Ground 12) that the defenders had persistently delayed in paying rent lawfully due. As the rent had been assessed at £400 per calendar month at the beginning of the contract, and the defenders were only paying £300, there was a “shortfall” of £100 per calendar month which the defenders had never paid to the pursuers.

   

• [41].Defenders’ agent submitted that Grounds 11 and 12 gave rise to “similar” considerations. Ground 11 focussed on late payment of rent; while Ground 12 focussed on rent unpaid on the date proceedings had begun. She submitted these Grounds were irrelevant because no arrears of rent “had ever been quantified, intimated or sought” from the defenders. The pursuers had not given any evidence that they were seeking arrears of rent and in their evidence had not believed any rent arrears existed. She further submitted the alleged “shortfall” was not arrears of rent. The defenders had paid the rent due to the pursuers in terms of their arrangement and accordingly Grounds 11 and 12 “simply do not apply”.

   

• [42].In my opinion, defenders’ agent’s submissions about Grounds 11 and 12 are to be preferred. I agree with her that the pursuers did not attempt at proof to quantify any arrears said to be due by the defenders[13]. Moreover, in cross-examination, second pursuer said she “did not understand [the defenders] to be in arrears of rent”; first defender said he was “not seeking any rent I know of”.

   

• [43].I accept a submission made by pursuers’ agent that the pursuers do not need to crave rent arrears, or even seek to recover them from the defenders, for Grounds 11 and 12 to come into play. But, by the same token, if they are to rely on these Grounds, they must lead evidence to show the defenders persistently delayed paying rent or were in arrears of rent when proceedings begun. The pursuers did not lead any such evidence, so it is difficult to see how they can succeed on these Grounds in the first place.

   

• [44].Rather, their arguments seemed to be twofold. Firstly, the “shortfall” argument, which I have already rejected as a matter of fact, that although the parties contracted for rent at £300 per calendar month, in reality the defenders ought to have been paying the assessed rental value of £400 per calendar month once they ceased providing services to the pursuers. This argument does not seem logical to me. In a contractual tenancy, the parties are free to agree whatever amount of rent they want even to the extent of agreeing a nominal amount[14]. Only in the absence of agreement as to the amount of rent, will the court presume the parties intended the rent to be at market value[15].

   

• [45].Furthermore, it is not until a contractual assured tenancy has been terminated by a Notice to Quit and a statutory assured tenancy takes its place that the landlord has the right to seek an increase in rent to the market value[16].Since the evidence is unequivocal in this case that the parties agreed a money rent of £300 per calendar month, approximately £100 less than the assessed market value rent at the time the contract was entered into, they have no entitlement to any “shortfall”.

   

• [46].As no such shortfall exists, there is no question the defenders are in arrears of rent lawfully due in terms of Grounds 11 and 12. These Grounds have accordingly not been established by the pursuers to exist in this case.

   

• [47].Then there is the second argument as set out in the AT6- that the defenders had agreed to provide services to the pursuers “which services were agreed to be taken to account of your liabilities in respect of rent”.

   

• [48].I do not think the parties ever reached any consensus in idem on this point. At best, as rent may be in the form of services as well as money, one view of the parties’ arrangement (see infra), is they contracted for both a money rent and services. The language of Grounds 11 and 12 sits uneasily with rent as services. They refer to “arrears” and “payment”. It seems to me therefore these Grounds relate only to the money rent and as there is no proof the money rent was in arrears, I see no basis for holding these Grounds are applicable in this case.

   

  Grounds 13 and 17

   

• [49].I shall also consider these Grounds together. As neither Ground was mentioned in either of the Forms AT6 served by the pursuers on the defenders, the pursuers may only found on them in these proceedings if I grant the pursuers leave to do so under section 19(2) of the 1988 Act.

   

• [50].Pursuers’ agent submitted I should exercise that discretion under section 19(2) because of the difficulty of characterising the proper Ground for recovery of possession in this case. This might not have become clear until proof had been commenced and evidence heard by the court.

   

• [51].Defenders’ agent objected to pursuers’ motion that I exercise discretion under section 19(2) of the 1988 Act. She submitted the 1988 Act and the procedures thereunder were “very exacting”. The purpose of prior Notice was to allow the defenders to form a view on whether intended proceedings should be defended. The requirement for prior Notice ought therefore to be insisted upon by the court.

   

• [52].I have decided to grant pursuers’ motion. On this point, I am of the view his submissions are to be preferred. I do not think there have to be exceptional circumstances before the court exercises discretion under section 19(2), but this is in my opinion an exceptional case. I agree there have been difficulties in the pursuers characterising the Ground under which they might proceed. The proper Ground, in my opinion, was Ground 13, but this could not become apparent until after all the evidence was heard and indeed I had an opportunity to consider that evidence in light of the applicable law. This has by no means been a straightforward task. If there has been any prejudice to the defenders by granting this motion, I consider that might, if appropriate, be addressed when the court considers the expenses of this action.

   

• [53].Having allowed the pursuers to advance these Grounds in these proceedings, I now record the submissions the parties’ agents made thereanent.

   

• [54].Pursuers’ agent submitted that the provision of services by the defenders to the pursuers had been a fundamental part of the parties’ arrangement. He submitted I should not accept as credible first defender’s claim that the provision of services was a purely voluntary act on their part. Since the defenders had “not performed” that obligation (Ground 13) or, if employed by the pursuers, “had ceased to be in that employment” (Ground 17), these Grounds applied in this case.

   

• [55].Defenders’ agent noted the absence of any written agreement for services. She submitted the parties’ arrangement did not amount to a contract of employment and therefore Ground 17 was inapplicable. She submitted there was a “huge question mark” over the nature of the services to be provided by the defenders to the pursuers and noted first pursuer’s evidence he had told first defender, after the parties had fallen out, he did not require any further assistance from the defenders.

   

• [56].I shall consider Ground 17 first. I agree there was no “employment”. Services may be provided under a contract of employment but not all contracts for provision of services are contracts of employment. A tradesman may supply services as part of his business, for example. In this case, there was not sufficient precision over the nature of the services to be provided by the defenders to the pursuers to suggest the pursuers exercised the sufficient degree of “control” over the defender’s activities. Indeed, they were unable to compel first defender tidying up the public road.

   

• [57].Furthermore, there was no evidence to suggest a contract of employment had come into existence- no written statement of the terms of employment, no wage slips showing deduction of tax or national insurance for the value of the services provided by the defenders to the pursuers. I am accordingly of the view Ground 17 does not apply to this case.

   

• [58].There are a number of problems concerning Ground 13, but most of these are easily resolved.

   

• [59].Firstly, it is clear to me on the evidence that, from the outset, the parties’ arrangement was based on the premise the defenders would occupy the subjects and, in return, provide services for the pursuers.

   

• [60].The nature of these services was not ascertained with precision. Second pursuer’s understanding in her letter to HMRC at production 11 refers to the intention behind the defenders occupying the subjects was to provide the pursuers with “help” or “support”. Second defender’s understanding, in her evidence, was similar as she said she and the first defender were intended to “care for” the pursuers in their old age.

   

• [61].The main duties were agreed in the parties’ evidence to have been collecting firewood and gardening, but nonetheless the precise nature of the services to be provided was left open-ended. Did this result in a legal obligation on the part of the defenders to provide services to the pursuers? Was there sufficient consensus in idem on this point?

   

• [62].In my opinion, these questions fall to be answered in the affirmative. Once it is ascertained that services may be a form of rent in Scots law, there is no objection to this forming part of the parties’ contract. Further, I am of the view that the parties are presumed to have intended to enter into a legal arrangement, not merely a social one. The pursuers only allowed the defender a right of occupancy of the subjects in return for their services and, later, rent.
• [63].The key thing is that, at the outset, before they also agreed on money rent, these services were to be granted to the pursuers by the defenders. It was the sole reason this arrangement came about in the first place. Although there was imprecision in the nature of the services to be provided by the defenders to the pursuers, the core elements were capable of being ascertained and therefore constituting legal obligations to be performed by the defenders in favour of the pursuers.

   

• [64].Had there been a complete surrender by the defenders to the will of the pursuers (witness first defender’s refusal to tidy the public road), then arguably any such agreement would have amounted to servitude, and have been unlawful[17]. But it clear there was no such element of compulsion and therefore I see no objection to an arrangement of this nature.

   

• [65].The next problem is whether the provision of services was, as required by Ground 13, an “obligation of the tenancy” rather than a collateral agreement[18]. In my opinion, having regard to the reason for the defenders being granted a right to occupy the subjects, and its fundamental importance to the pursuers at that time, it does, subject to the terms of section 21 of the Tenures Abolition act 1746, fall to be regarded as an obligation of the tenancy and not a separate agreement.

   

   

• [66].The third problem is first pursuer’s insistence the defenders cease providing services to them. However, this took place after the parties had fallen out. First defender was already reducing the amount of services he provided. First pursuer has serious health problems. The parties do not get on with each other. Their relations are no longer cordial. The pursuers can do nothing to compel the defenders to carry out their services. It makes sense to me for first pursuer not to insist on this at this time- he is too unwell to incur the stress involved in that. It seems to me this is an aspect of the reasonableness of the court granting an order for recovery of possession of the subjects, not of obligation. Accordingly, it seems to me Ground 13 has potential application in this case. It allows for recovery of possession either if an obligation of the tenancy- other than one relating to payment of rent -“has been broken or not performed”.

   

• [67].“Broken” implies breach of contract and need not be gone into in this case.

   

• [68].“Not performed” is a simple factual matter and it clearly applies quoad the services the defenders contracted to provide to the pursuers.

   

• [69].But there is a further problem with Ground 13. It is this. The services to be rendered by the defenders to the pursuers were never reduced to writing. Although this isan aspect of the lease being a purely verbal one, section 21 of the Tenures Abolition Act 1746 contemplates, even in those circumstances, a separate writing signed by the parties specifying “expressly and particularly” the services to be carried outby the defenders.

   

• [70].This gives rise to a further series of difficulties. The two practical difficulties are:
  1. There was no such writing.
  2. The services in this case were not “express and particular” as required by section 21, there being an element of uncertainty as to their extent.

      

• [71].The two legal difficulties are:

1. Absent any signed agreement in writing between the parties quoad services, did these obligations form part of the obligations of the tenancy after all so that, if not, Ground 13 is inapplicable?
2. Or if non-conformity to section 21 does not affect the character of the obligations as obligations of the tenancy, so that Ground 13 applies, must it be taken into account as an aspect of the reasonableness of the court granting an order for recovery of possession of the subjects?

 

 

This Judgment has been edited: I subsequently ruled on the first question by holding that the obligation to perform services did form part of the terms of the lease notwithstanding the parties had not complied with section 21 of the 1746 Act; I accepted a submission from the pursuers’ agent that non-conformity to section 21 prevented enforcement of the obligation, such as by an action for damages, but did not preclude recovery of possession under the ground 13 in schedule 5 to the 1988 Act. The parties agreed settlement of the action after that ruling, and it was unnecessary for me to determine the second question.