Act: Party

Alt: Ms Adams, sol-adv; Thorntons, Dundee

7 November 2013

Introduction

[1] By Order dated 19 August 2013 the Scottish Land Court dismissed an application by the appellant. On 10 October the appellant lodged an appeal. She has enrolled a motion for leave to appeal late on the following ground "Litigant in person. Wrong advices." She has now changed her position on that question, as I shall relate.

The application to the Land Court
[2] The appellant applied to the Land Court for declarator that she was entitled to purchase certain land at Muir of Pert Farm, Tealing that is owned by the respondent. Her primary contention was that she had kept horses on the land since 2006; that she was an agricultural tenant and that she therefore had the right to buy the land under the Agricultural Holdings (Scotland) Act 2003 (the 2003 Act). Her alternative contention was that on 8 August 2012 a solicitor acting on behalf of the respondent offered her the opportunity to buy the land and that the respondent later reneged on the offer.

[3] In support of her primary contention, the appellant asserted that by agreement with the respondent she had occupied the land free of charge, but that she would have paid rent if she had been asked to; and that because her horses had been on the land for 365 days of the year, the agreement had been converted into a limited duration tenancy or a short limited duration tenancy. She said that she had repaired fences and weeded and topped the land; and, in short, had done all that a tenant would be expected to do, other than to pay rent.

The decision of the Land Court
[4] The Land Court held that in the absence of a rent there was no lease and therefore that the Agricultural Holdings (Scotland) Act 1991 (the 1991 Act) and the 2003 Act did not apply. It added that in any event even if the appellant was a tenant under a limited duration tenancy or a short limited duration tenancy the right to buy provisions of the 2003 Act would not apply. On the appellant's fall-back position, the Land Court held that it raised a matter that was outwith its jurisdiction.

The grounds of appeal
[5] The appellant's lengthy grounds of appeal appear to be inconsistent with the case that she presented to the Land Court. She contends that the Land Court erred in law by not referring to McDonald v O'Donnell (2008 SC 189); and that it wrongly assumed that her lease must be an agricultural lease. She raises the questions whether the decision of the Court of Appeal in Rutherford v Maurer ([1962] 1 QB 16) applied in her case; whether the Land Court "confused" her application regarding the right to buy; and whether it erred in law by not allowing a full proof nor allowing her to state a full case. She also contends that the Land Court erred in neither referring to nor applying the provisions of the Leases Act of 1449.

Section 88 of the 2003 Act
[6] Section 88(1), so far as relevant to this case provides as follows:

"... Any party to a matter determined by the Land Court by virtue of the 1991 Act or this Act may appeal to the Court of Session against the determination on a question of law within 28 days of the determination ... ".

The section does not provide for there being any extension of the time limit.

The appellant's case

[7] At the hearing of the motion, the appellant submitted that since the Land Court found that the 1991 and 2003 Acts did not apply in this case, the 28 days time limit under section 88 (supra) did not apply. Therefore the time limit was the 42-days limit imposed by Rule of Court 41.26. It will be apparent that the appellant missed that time limit too. The appellant informed us that the land includes stable accommodation; and that she has kept the horses on the land for the purpose of giving riding lessons.

Conclusions
The time limit

[8] Contrary to her written motion, the appellant now contends that the appeal was not lodged late, because it was lodged within 42 days of her learning of the Land Court's Order. This whole argument is misconceived. Although the Land Court held that 1991 Act and the 2003 Act did not apply, its determination to that effect was nevertheless made in the exercise of its jurisdiction under section 60(2)(a) of the 1991 Act. Therefore any appeal against the determination is governed by section 88 of the 2003 Act. Therefore the 28 days limit applies.

[9] Since the 28 days limit applies, and since section 88 does not provide for any extension of it, the motion raises the important question whether it is competent for this court to allow an appeal to be lodged after the statutory time limit has expired; but I think that it is unnecessary for us to consider that question. I am satisfied that the appellant's application to the Land Court and her grounds of appeal are irrelevant.

Relevancy
[10] Since the existence of the landlord-tenant relationship is denied by the respondent, the appellant's primary crave should have been for declarator of the existence of a tenancy and of the nature of it. It would have been open to the Land Court to make a determination as to whether a 1991 Act tenancy (1991 Act, s 60(2)(a)) or either of the limited duration tenancies (2003 Act, s 77(2)(a)) existed. A claim to any form of agricultural tenancy would have been bound to fail in this case because, as the appellant herself avers, there was no agreement on rent and none was ever charged (Gray v University of Edinburgh 1962 SC 157). That alone is fatal to her case.

[11] In any event, since the appellant's only use of the land was for the accommodation of horses that were kept there for a non-agricultural purpose, she could not have enjoyed an agricultural tenancy of any form (McDonald v O'Donnell, supra, in which Rutherford v Maurer, supra, was discussed). Moreover, since the appellant's use of the land began in 2006 (Land Court Note, para [1]), it would not have been possible to create a 1991 Act tenancy without a written lease containing an express declaration that the 1991 Act was to apply to it (2003 Act, s 1(2)).

[12] Even if the appellant had established such a tenancy, she would have been bound to fail because the right to buy is available only if the tenant has registered an interest under section 25 of the 2003 Act and only if one of the events specified in section 28 has triggered the exercise of it under section 29.

[13] The appellant's claim is also irrelevant in respect of her claim to have one or other of the limited duration tenancies under the 2003 Act. Neither form of tenancy carries with it the right to buy (2003 Act, s 25(1)).

[14] I conclude therefore that on the appellant's primary contention, this application could not under any circumstances succeed.

[15] The appellant's alternative plea is also irrelevant. Since she does not have a tenancy of the land of any kind, a claim based on an agreement for the sale of it would be justiciable only in the ordinary courts.

Disposal
[16] I propose to your Ladyships that we should refuse the motion.

Act: Party

Alt: Ms Adams, sol-adv; Thorntons, Dundee

7 November 2013

[17] I agree entirely with the views expressed by your Lordship in the chair and I have nothing to add.

Act: Party

Alt: Ms Adams, sol-adv; Thorntons, Dundee

7 November 2013

[18] I agree entirely with your Lordship in the chair and I have nothing to add.