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NORMA ANDERSON v. CLUNY INVESTMENT SERVICES LIMITED

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ELGIN

A543/00

JUDGEMENT

of

SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC

in the cause

NORMA ANDERSON

Pursuer and Appellant

against

CLUNY INVESTMENT SERVICES LIMITED

Defenders and Respondents

Act: Mr R C Forbes, solicitor, Iain Smith & Co, Stonehaven

Alt: Mr R Cruickshank, solicitor, Allan, Black & McCaskie, Elgin

Elgin: 10th March 2004

The sheriff principal, having resumed consideration of the cause, allows the pursuer's appeal and varies the interlocutor of the sheriff dated 13th May 2003 as follows:

    • At the end of finding in fact 43 add: "The pursuer refrained from exercising what was otherwise her right to occupy the property due to the defenders continuing to seek to impose conditions which were unacceptable to her and which it was unlawful for the defenders to seek to impose. The pursuer by doing so gave up her occupation of 1 Barmuckity Cottages as a residence during the period August 1998 to October 1999 during which period the defenders were imposing such conditions";

    • Add at the end of finding in fact and law 8: "Such interference caused the pursuer to give up her occupation of the premises as a residence during the period August 1998 to October 1999";

    • Delete finding in law 1 and substitute: "1. The pursuer being entitled to damages from the defenders in terms of section 36 of the Housing (Scotland) Act 1998 in the sum of £7,500 decree should be granted for that sum with expenses in terms of craves 1 (as restricted with regard to quantum) and 2 of the initial writ";

    • In the final paragraph of the interlocutor on page 8 (which begins with the words "Sustains the Third and Fourth ........" (a) delete the word "Sustains" in line 1 thereof and substitute "Repels", (b) in line 2 after the words "action and" insert the word "Sustains", (c) in line 4 delete the word "Repels" and substitute "Sustains", (d) in line 5 after the words "action and ......" insert "Repels", (e) in lines 6 and 7 delete the words "Assoilzies the Defenders from the First Crave of the Initial Writ", and (f) in lines 8 and 9 delete the words "Reserves the question of expenses meantime; Assigns 27th May 2003 at 10.30 am as a diet for a Hearing on Expenses";

quoad ultra adheres to this interlocutor and grants decree for payment by the defenders to the pursuer of the sum of £7,500 with interest thereon at the rate of 8% per annum from 31st August 1998 until payment; finds the defenders liable to the pursuer in the whole expenses of the cause, including the appeal, so far as not already dealt with and allows an account thereof to be given in and remits the same to the auditor of court to tax and to report; thereafter remits the cause to the sheriff to proceed as accords.

Note

[1]In this case the pursuer and appellant was the tenant, and the defenders and respondents the landlords, of a cottage in Elgin. The pursuer sought decree against the defenders for payment of the sum of £10,000 in terms of section 36(3) of the Housing (Scotland) Act 1988 which provides in short that, where the section applies, the landlord shall be liable to pay to the former residential occupier of any premises, in respect of his loss of the right to occupy the premises in question as his residence, damages assessed on the basis set out in section 37. Section 37(1) provides that the basis for the assessment of damages referred to in section 36(3) is the difference in value, determined as at the time immediately before the residential occupier ceased to occupy the premises in question as his residence, between (a) the value of the landlord's interest determined on the assumption that the residential occupier continues to have the same right to occupy the premises as before that time; and (b) the value of the landlord's interest determined on the assumption that the residential occupier has ceased to have that right.

[2]Section 36(1) provides that the section applies if, at any time after 3 December 1987, a landlord or any person acting on his behalf unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises. Section 36(2) provides as follows:

    • This section also applies if, at any time after 6 July 1988, a landlord or any person acting on his behalf -

    • attempts unlawfully to deprive the residential occupier of any premises of his occupation of the whole or part of the premises; or

    • knowingly or having reasonable cause to believe that the conduct is likely to cause the residential occupier of any premises -

    • to give up his occupation of the premises or any part thereof; or

    • to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof,

does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence,

and, as a result, the residential occupier gives up his occupation of the premises as a residence.

[3]In view of the sheriff's findings it is perhaps a little puzzling that the pursuer relied, not upon section 36(1), but upon section 36(2). The sheriff found that the circumstances specified in sub-paragraph (b) of section 36(2) applied in this case and the issue in the appeal was whether he ought to have gone on to find that, as a result of these circumstances, the pursuer had given up her occupation of the cottage as a residence and so was entitled to payment of damages in terms of section 36(3). It was not in dispute that, if she gave up her occupation of the cottage as a residence in August 1998, then she did so as a result of these circumstances. On the other hand, if she gave up occupation in October 1999, then it is accepted that she did so as a result of circumstances other than those specified in section 36(2)(b). Thus at the end of the day the issue in the appeal narrowed down to the question whether, as the pursuer maintained, the sheriff ought to have found that she had given up occupation in August 1998 or whether, as the defenders maintained, the sheriff had been correct to conclude, as he effectively did, that she had not given up occupation until October 1999.

[4]Section 36(8) provides:

    • In this section -

    • "residential occupier", in relation to any premises, means a person occupying the premises as a residence whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises;

    • "the right to occupy", in relation to a residential occupier, includes any restriction on the right of another person to recover possession of the premises in question;

    • "former residential occupier", in relation to any premises, means the person who was the residential occupier until he was deprived of or gave up his occupation as mentioned in subsection (1) or subsection (2) above (and, in relation to a former residential occupier, "the right to occupy" and "landlord" shall be construed accordingly).

[5]The defenders counterclaimed against the pursuer for payment of two sums which totalled £27,700. It may be that it was the existence of this counterclaim which explains why the proof occupied three days, namely 17 December 2002 and 10 and 11 February 2003. On this last date the sheriff made avizandum, and thereafter by interlocutor dated 13 May 2003 he granted decree of absolvitor in both the principal action and the counterclaim. The defenders have acquiesced in his decision, and I need therefore say no more about the counterclaim.

[6]In relation to the issue in this appeal, the sheriff's introductory findings in fact were to the following effect. In or about 1985 the pursuer and her then husband entered into a lease of the cottage which at that time belonged to a Mrs Fraser. The rent was initially £60 per month. There was no express agreement with regard to the duration of the lease. When the pursuer initially took entry to the cottage, it was in a dilapidated condition, and it subsequently proved to be prone to flooding from time to time and to suffer consequential damage.

[7]By 1994 the rent payable to Mrs Fraser had been increased by agreement to £100 per month. At that time Mrs Fraser indicated that she intended to sell the cottage. Negotiations ensued between various parties, and the upshot of these was that the defenders purchased the cottage. They did so on the understanding that the pursuer and her husband were the tenants, and they remained in occupation of the cottage thereafter.

[8]It appears that, after the defenders had purchased the cottage, it became necessary to carry out certain renovation works to it. These were completed over a period of about four months ending in September or October 1994. During this period the pursuer and her husband moved out of the cottage, and they separated at about the end of this period. Thus the pursuer alone moved back into the cottage. It was agreed amongst the parties that her husband would relinquish his interest in it and that the pursuer would re-occupy the cottage as a tenant.

[9]No new lease was entered into between the pursuer and the defenders on her return to the cottage. But it was agreed that the rent would be reviewed to take account of the renovations carried out. In the event the agreed rent was £300 per four week period.

[10]Save for the period when the renovations were being undertaken in 1994, the pursuer resided continuously in the cottage from the date of her original entry until September 1995 when it was flooded and suffered substantial damage. As a result the pursuer required to vacate it, and she was temporarily re-housed by Moray Council.

[11]The pursuer was able to resume occupation of the cottage in May 1997 but not for long since, on or about 1st July 1997, it was again flooded and rendered unfit for occupation. Further substantial renovation was required and the pursuer once more required to vacate the property. She had various temporary homes until about April 1998 when she moved to live as a tenant of Moray Council at 1 Mitchell Street, Elgin, where she still resides.

[12]The sheriff's findings in fact 33 to 49 were as follows (Mr Beck was a director of the defenders):

    • In seeking to be permanently re-housed, the pursuer did so in order to avoid the prospect of her being subjected to frequent moves from one temporary address to another as she had experienced previously. At that time, it was her intention to return to the subjects once repair works had been carried out;

34.When applying to be re-housed, the pursuer represented to Moray Council that she had no other tenancy;

    • While re-housed, the pursuer retained certain possessions, University papers and the like, on the upper floor of the cottage;

    • While re-housed, the pursuer periodically visited the cottage. She no longer held keys to access the property but found, from external inspection over an extended period, that little or no progress was being made with the renovation works. The completion of the renovation of the cottage was long delayed;

    • The pursuer periodically contacted the defenders indicating her wish that the renovations works be advanced;

    • The renovation works were completed in about May 1998. Inter alia, lower floors had been replaced, heating had been installed, the kitchen re-fitted, new doors fitted and re-plastering had been undertaken;

    • On 22nd June 1998 the defenders' solicitors wrote to the pursuer to advise her that the cottage had become available for re-occupation. They wrote to her again in identical terms on 11th August 1998. Neither letter was immediately received by the pursuer but, by the end of August 1998 she had become aware of the terms of these letters;

    • The defenders' letters of 22nd June and 11th August 1998 invited the pursuer to inspect the cottage to ensure that the renovation works had been completed to her satisfaction. They also stipulated inter alia that it was a prerequisite of the pursuer being allowed to re-occupy the subjects that she should pay rent arrears of £650 due for May, June and July 1997, sign a new lease creating an assured tenancy agreement and pay one month's rent in advance;

    • Following sight of one or other of the letters written by the defenders, the pursuer spoke to Mr Beck. She advised him that she would not enter into an assured tenancy agreement or meet the other conditions which the defenders sought to impose. He re-affirmed that keys to the property would only be made available when the conditions contained in the letters were met;

    • The defenders knew or had reasonable cause to know that that the imposition of conditions which they sought to impose upon the pursuer and in particular those relating to her entering into an assured tenancy and paying a month's rental in advance were such as were likely to result in the pursuer refraining from exercising her right to re-occupy the property;

    • Despite her contacting the defenders on a number of occasions subsequent to the defenders laying down their conditions for re-occupation, they maintained their demands and refused to give the pursuer the keys to the property. The property remained unoccupied;

    • In or about October 1999, as part of an out-of-court settlement following upon the raising of Court proceedings against her by the defenders, the pursuer ultimately paid the rent arrears due for May, June and July 1997. The defenders then dropped their demands that she should sign a new lease and pay a month's rent in advance;

    • In or about October 1999, having settled the rent arrears, the pursuer was given keys to the cottage. The parties had it in contemplation that she would then inspect the property with a view to determining whether or not she was to resume occupation. She thereafter visited the property to carry out such an inspection;

    • On inspection, the pursuer found the cottage to be in a filthy condition. The cottage had been substantially altered. Floor levels had been raised, and the corresponding height of windows lowered. A "living flame" stove in the livingroom had been removed. The kitchen had been re-designed. There was mould on certain walls. The condition was such that she decided that she could not cope with the task of returning to the property and determined to give-up her tenancy. She thereupon arranged to remove the possessions that she still had within the property.

    • Having resolved to give-up her tenancy, the pursuer returned the keys of the cottage to the defenders' office in or about November 1999. She advised the defenders that she was not to return to the cottage. She now regards her tenanted property at 1 Mitchell Crescent as her sole and permanent home;

    • The defenders seek rent from the pursuer for the period from July 1998 until May 2000. The pursuer has failed to pay such rent;

    • The pursuer has refused to pay the outstanding rent sought by the defenders on the basis that they wrongfully denied her occupation of the cottage during the period from August 1998 until October 1999. When occupation was offered in October, the subjects were found by the pursuer to be unfit for immediate re-occupation;

[13]In terms of his finding in fact 53 the sheriff found that, at or about August 1998, the difference between the open market value of the defenders' interest in the cottage, assuming vacant possession, and that interest, assuming a protected tenant, was £7,500. It was not in dispute that, if the pursuer succeeded in her appeal, decree for payment of this sum should be granted in her favour against the defenders.

[14]The sheriff's findings in fact and law 3 to 8 were as follows:

    • The original tenancy entered into between the pursuer and her husband, as tenants, and Mrs Fraser, as landlord, became a protected tenancy in terms of the Rent (Scotland) Act 1984;

    • In respect that no term was agreed for the original lease, the lease endured by operation of law from year to year;

    • The original tenancy was unaffected by the defenders' purchase of the subjects save that the defenders thereafter assumed the role of landlord to the pursuer and her husband in place of Mrs Fraser;

    • As at July 1998, the pursuer remained a residential occupier of the property, albeit not then in residence;

    • The defenders were not entitled to impose upon the pursuer the pre-conditions which they sought to impose upon her with regard to her signing a new assured tenancy agreement and paying a month's rent in advance of her re-occupying the property in and subsequent to July 1998;

    • By imposing such pre-conditions on the pursuer's re-occupation of the property, the defenders thereby interfered with her comfort as a residential occupier of the property;

[15]The sheriff's finding in law 1 was to the effect that no sums were due by the defenders to the pursuer by way of damages and that they should therefore be assoilzied in the principal action. As already indicated, he proceeded accordingly to grant decree of absolvitor in favour of the defenders.

[16]Referring to his finding in fact and law 6, the sheriff commented at page 25 of his judgement as follows (Mr Forbes was for the pursuer and Mr McCartan for the defenders):

Finding in Fact and Law 6. I have found it established that the pursuer retained certain possessions - albeit perhaps of little value - within the property and harboured a long-term wish to return to the property. On my reading of Section 36 (8) of the Act as a whole and having regard to the submissions made by Mr Forbes, I am satisfied that, as a matter of law, the pursuer thereby continued to "occupy" the premises. She was either a residential occupier or a former residential occupier and she had not by that time become a "former residential occupier" as defined in Section 36 (8) (c).

Had the pursuer elected to give up her tenancy before the defenders withdrew their demands in relation to the signing of a new lease and payment of a month's rent in advance, then her position in these proceedings may have been very different. But I do not require to determine that question because, as a matter of fact, she did not do so.

The defenders have an averment on Record to the effect that the pursuer ceased to be a residential occupier of the cottage by virtue of her accepting a new tenancy from Moray Council. During his submissions, Mr McCartan invited me to adopt such a view. I have not done so. I find nothing in the definition of "residential occupier" within the Act to support such a position and I can otherwise find no substance in this argument. Necessarily, a tenant who requires to temporarily remove from a flood-damaged property may require to find other tenanted accommodation on, at least, an interim basis. I do not consider that, in the normal case, this will have any impact whatsoever upon the original tenancy. It will not, simply by operation of law, bring about the termination of that tenancy. In the unlikely event that to enter into a second lease in these circumstances contravened a provision of the original lease, then the lease would, I think, endure until the Landlord founded on that breach to bring the lease to an end.

[17]The sheriff explained his ultimate decision to grant decree of absolvitor in favour of the defenders in a passage on page 27 of his judgement where he wrote:

It was Mr McCartan's position that the provisions of Section 36 (2) (b) of the Act - being the provisions upon which the pursuer founds - were not apposite to the circumstances of this case. As I understood his position, it was that the Section struck at unlawful eviction whereas, in the present case, we were dealing not with eviction but rather with exclusion. I do not agree with this view. I am satisfied that on a reasonable reading of Section 36, if a tenant was unlawfully excluded from a property by the acts of their landlord and, as a consequence, gave up their occupation of that property, then a remedy under Section 36 could be available. The provisions of the Section are, I think, of wide application.

I do, however, agree with Mr McCartan when he made the point that, for the pursuer to succeed in this claim, she must establish facts that meet all the requirements of Section 36 (2) (b) upon which she founds. To fail in this regard would be fatal to her position. The outcome of this case has turned upon such a failure.

One of the critical averments of the pursuer, found at line 22 of Article 2 of Condescendence is to the effect that "As a result of their conduct, she did give up her occupation of the subjects". The "conduct" referred to is the laying down of pre-conditions all as earlier condescended upon and referred to in my Findings in Fact. To have such an averment is critical to the relevancy of the pursuer's case and to establish such an averment as a matter of fact is likewise critical to ultimate success. The pursuer has failed to establish this averment. Rather, as my Finding No. 47 reflects, I have found that the pursuer failed to re-occupy the property because of the condition in which she found it when she carried out an inspection in or about October 1999. This finding - or, rather, the lack of a finding linking her surrender of the tenancy to the imposing of the pre-conditions - has been fatal to her action.

[18]Opening the appeal, the pursuer's solicitor submitted that the sheriff had been wrong to find that the last leg of section 36(2) had not been satisfied in this case. The sheriff, so it was said, had wrongly equated the pursuer's having given up her tenancy in October 1999 with her having given up occupation of the cottage as a residence which she had done in August 1998. The reference in section 36(2) to the giving up of occupation was not to be interpreted as the giving up of a tenancy upon the renunciation of a lease. Reference was made to the Shorter Oxford English Dictionary (5th edition, 2002), and it was submitted that as a matter of fact the pursuer had ceased to occupy the cottage as a result of the defenders' actions in the summer of 1998. It was not necessary that there should have been a termination of the tenancy for the remedy under section 36(3) to be available so long as there had in fact been a deprivation of occupation of the premises in question. The sheriff had thus erred in law in concluding that the pursuer had failed to establish a causal connection between the defenders' actions and her having given up occupation of the cottage. In light of the sheriff's finding in fact 42 and his finding in fact and law 8 it was clear that there had been a causal relationship between, on the one hand, the pursuer's non-occupation of the cottage between August 1998 and October 1999 and, on the other hand, the defenders' actions. It followed from these findings that the pursuer had given up her occupation of the cottage as a result of the defenders' actions and the sheriff ought to have made a finding to this effect accordingly. During the period of fourteen months between August 1998 and October 1999 the pursuer had given up her right to occupy the cottage inasmuch as she had not been prepared to comply with the conditions which the defenders, without lawful entitlement, had sought to impose. The sheriff's findings should therefore be adhered to subject to the following amendments which were a necessary inference from the findings which he had himself made (1 Barmuckity Cottages was the address of the cottage):

    • Add at the end of finding in fact 43: "The pursuer refrained from exercising what was otherwise her right to occupy the property due to the defenders continuing to seek to impose conditions which were unacceptable to her and which it was unlawful for the defenders to seek to impose. The pursuer by doing so gave up her occupation of 1 Barmuckity Cottages as a residence during the period August 1998 to October 1999 during which period the defenders were imposing such conditions".

    • Add at the end of finding in fact and law 8: "Such interference caused the pursuer to give up her occupation of the premises as a residence during the period August 1998 to October 1999".

    • Delete finding in law 1 and substitute: "1. The pursuer being entitled to damages from the defenders in terms of section 36 of the Housing (Scotland) Act 1988 in the sum of £7,500 decree should be granted for that sum with expenses in terms of craves 1 (as restricted with regard to quantum) and 2 of the initial writ".

The pursuer's solicitor submitted finally that I should repel the defenders' third and fourth pleas-in-law and sustain the pursuer's second plea-in-law in the principal action (these pleas being all directed to the merits of the pursuer's claim) and thereafter grant decree for payment by the defenders to the pursuer of the sum of £7,500 with interest thereon at the rate of 8% from 31st August 1998 until payment.

[19]The defenders' solicitor submitted that I should adhere to the interlocutor of the sheriff and dismiss the appeal. He submitted in the first place that the sheriff had not erred in law in finding that no causal link had been established between the defenders' actions and the pursuer's having given up her tenancy of the cottage. It was to be observed that the sheriff had not made a finding in fact to the effect that the pursuer had given up her occupation of the cottage in August 1998. She had, so it was argued, remained the residential occupier of the cottage right up until October 1999 when, having decided that she could not cope with the task of living in the cottage once more, she had given up her tenancy of it. That was when she had given up her occupation, and the reason she had done so was not on account of the earlier actings of the defenders but on account of the condition of the property at that time. The sheriff had thus been correct in holding that all the conditions of section 36(2) had been satisfied with the vital exception of the last leg. As at October 1999 the pursuer had remained a residential occupier of the cottage, and it was only then that she had given up her occupation of it as a residence. Thus there had been no misdirection on the part of the sheriff.

[20]The defenders' solicitor further submitted that, even if the sheriff had misdirected himself in his interpretation of section 36(2), he had still been correct to grant decree of absolvitor in favour of the defenders in the principal action in light of section 36(6)(a) which provides that no liability shall arise by virtue of section 36(3) if, before the date on which the proceedings to enforce the liability are finally decided, the former residential occupier is reinstated in the premises in question in such circumstances that he becomes again the residential occupier of them. It was submitted that, having been given the keys of the cottage in October 1999 and an opportunity to inspect it, the pursuer had at that stage been reinstated within the meaning of section 36(6).

[21]The defenders' solicitor submitted finally that, if I were against him so far, I should nonetheless not grant decree in favour of the pursuer but instead should remit the cause to the sheriff to consider the matters referred to in sections 36(6B)(b) and 36(7). But he did not seek to elaborate upon this particular submission.

[22]In my opinion the submissions for the pursuer are to be preferred. As already indicated, the critical question in this appeal is whether she gave up her occupation of the cottage as a residence in August 1998. In answering this question, the starting point I think must be the sheriff's finding in fact and law 6 to the effect that, as at July 1998, the pursuer remained a residential occupier of the cottage, albeit not then in residence. Neither side sought to challenge this particular finding which in any event seems to me to be explicable in light of the sheriff's earlier findings in fact, and in particular those to the effect that on or about 1st July 1997 the pursuer again required to vacate the cottage after it had been flooded and rendered unfit for occupation (31), that, when she was re-housed by Moray Council, it was her intention to return to the cottage once repair works had been carried out (33), that, while re-housed, she retained certain possessions, university papers and the like, on an upper floor of the cottage (35), that, while re-housed, she periodically visited the cottage and inspected it externally (albeit that she no longer had keys to it) (36), and that she periodically contacted the defenders indicating her wish that the renovation works be advanced (37).

[23]It is important not to lose sight of the fact that while these renovation works were being carried out the pursuer remained the tenant of the cottage and thus had the right to occupy it when it was once more fit for habitation. What then happened is recorded in the sheriff's findings in fact 38 to 47 which I have already rehearsed. In a nutshell, once the renovation works had been completed, the defenders' solicitors wrote twice to the pursuer. Neither letter was immediately received by her but by the end of August 1998 she had become aware of the terms of the letters. They stipulated inter alia that it was a pre-requisite of the pursuer being allowed to re-occupy the cottage that she should pay rent arrears of £650 due for May, June and July 1997, sign a new lease creating an assured tenancy agreement and pay one month's rent in advance. The pursuer then spoke to the defenders' Mr Beck and told him she would not accept the conditions which the defenders sought to impose. He for his part reaffirmed that the keys to the property would only be made available to her when these conditions were met. At that stage the defenders knew or had reasonable cause to know that their seeking to impose these conditions upon the pursuer was likely to result in her refraining from exercising her right to re-occupy the cottage. Despite her contacting the defenders on a number of subsequent occasions, they maintained their demands and refused to give her the keys to the property which remained unoccupied. Finally, in or about October 1999, as part of an out-of-court settlement the pursuer paid the rent arrears and the defenders then dropped their demands that she should sign a new lease and pay a month's rent in advance and gave the pursuer keys to the cottage. The parties had it in contemplation that she would then inspect the cottage with a view to determining whether or not she was to resume occupation. She duly visited the cottage and upon inspection decided that she could not cope with the task of returning to the cottage. She therefore determined to give up her tenancy and subsequently returned the keys to the defenders' office in or about November 1999. At the same time she advised the defenders that she was not to return to the cottage.

[24]Against the background of these findings the sheriff made two important findings in fact and law 7 and 8, namely that the defenders were not entitled to impose upon the pursuer the pre-conditions they sought to impose upon her with regard to her signing a new assured tenancy agreement and paying a month's rent in advance of her re-occupying the property in and subsequent to July 1998 and that, by imposing such pre-conditions on her re-occupation of the property, the defenders thereby interfered with her comfort as a residential occupier of the property.

[25]It is no doubt true that it was only in or about October or November 1999 that the pursuer gave up her tenancy of the cottage. But this is not the same as to say that it was then that she gave up her occupation of it as a residence. "Occupation" and a "right to occupy" are two quite separate concepts, and should not be confused. A person may be in occupation of premises without having a right to do so, and he may also have the right to occupy premises but not in fact occupy them. In the present case it respectfully seems to me that in the sections of his judgement quoted in paragraphs [16] and [17] above the sheriff fell into error in confusing the pursuer's having given up her occupation of the cottage as a residence with her having given up her tenancy of it. In my opinion it is plain in light of the sheriff's findings that, while she only gave up her tenancy in or about October or November 1999, she gave up, or rather was effectively forced to give up, her occupation of the cottage as a residence in August 1998 when she still had the right to occupy it but did not exercise that right as a result of the defenders' actions in seeking to impose the conditions which they were not entitled to impose.

[26 ]In reaching this conclusion, I am conscious that it may be asked how the pursuer can be said to have remained in occupation of the cottage during the period when the renovation works were being carried out and yet to have given up occupation during the period after these works had been completed when the defenders were insisting on their unlawful demands as a condition of her returning to the cottage. After all, during both these periods she was not actually living in the cottage. The answer I think is to be found in the proposition that the question whether or not a person is in occupation of premises is always one of fact and degree, and here the circumstances changed materially once the renovation works had been completed. Until then (and following the flood on 1st July 1997) what prevented the pursuer from living in the cottage was the need to carry out the renovation works rather than the actings of either of the parties, and it is perfectly intelligible to say that during this period she remained in occupation of the cottage. Although the duration of the period was uncertain, the pursuer was entitled to assume that it would come to an end sooner or later when the renovation works were eventually completed, and when this happened it was her intention to return to live in the cottage. But once the renovation works had been completed, it was no longer these but the defenders' actings which kept her from moving back into the cottage, and moreover there was then no assurance that there would ever come a time when the defenders would desist from their unlawful demands. In these circumstances it seems to me likewise to be perfectly intelligible to say that the pursuer was no longer in occupation of the cottage, having been forced by the defenders' actings to give up her occupation.

[27 ]In summary, while the renovation works were being carried out the pursuer's being unable to live in the cottage was never likely to be anything other than a temporary state of affairs, whereas once the defenders came to impose their unlawful demands there was no guarantee that the pursuer would ever be free to move back into the cottage. In my opinion it is this critical distinction which permits the conclusion that, although not actually living in the cottage, she remained in occupation of it while the renovation works were being carried out but ceased to be in occupation of it once they had been completed.

[28]Turning to the second principal submission for the defenders, I am of the opinion that they cannot escape liability upon the grounds set out in section 36(6)(a). This demands that the pursuer should have been reinstated in the cottage in such circumstances that she again became the residential occupier of them. This she plainly did not. On the contrary, having at last been given the keys to the cottage in or about October 1999, she went to inspect it but found that its condition was such that she could not cope with the task of returning to it. Accordingly she determined to give up her tenancy, and she did so more or less immediately. Thus there was no question of her having again become the residential occupier of the cottage.

[30]Turning to the third principal submission for the defenders, I do not consider that it would be appropriate to remit the cause to the sheriff for consideration of the matters referred to in sections 36(6B)(b) and 37(7). If the defenders had wished to pursue these matters, they should have done so in the context of the appeal and invited me to make any necessary findings. In any event, it is difficult in light of the sheriff's existing findings to see how either section 36(6B)(b) or section 37(7) could have had any application in the present case.

[31]The pursuer's note of appeal was lodged before the sheriff had had the opportunity to deal with the expenses of the action. The pursuer's solicitor submitted that I should find the defenders liable to the pursuer in the whole expenses of the cause including the appeal. The defenders' solicitor on the other hand submitted that I should find them entitled to the expenses of the appeal. I notice from the interlocutor sheets that there have been various occasions on which the defenders have already been found liable in expenses to the pursuer. They were unsuccessful in their counterclaim against her and have now also been unsuccessful in resisting her appeal in the principal action. In these circumstances I have thought it appropriate to find them liable to the pursuer in the whole expenses of the cause, including the appeal, so far as not already dealt with.

[32]For the sake of completeness, I should record that in the course of the submissions I was referred to Tagro v Cafane 1991 1 WLR 378.