SCOTTISH LAW COMMISSION (Scot Law Corn No 118) Recovery of Possession of Heritable Property Report on a reference under section 3(l)(e) of the Law Commissions Act 1965 Presented to Parliament by the Lord Advocate and the Secretary of State for Scotland by Command of Her Majesty August, 1989 EDINBURGH HER MAJESTY'S STATIONERY OFFICE f12.10 net The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965 for the purposes of promoting the reform of the law of Scotland. The Commissioners are: The Honourable Lord Davidson, Chairman, Dr E M Clive, Professor P N Love, CBE, Sheriff C G B Nicholson, QC, Mr W A Nimmo Smith, QC. The Secretary of the Commission is Mr K F Barclay. Its offices are at 140 Causeway- side, Edinburgh EH9 1PR. ISBN 0 10 107242 2 Scottish Law Commission Recovery of Possession of Heritable Property Report on a reference under section 3(l)(e) of the Law Commissions Act 1965 To: The Right Honourable the Lord Fraser of Carmyllie, QC, Her Majesv's Advocate and The Right Honourable Malcolm Rifkind, QC, MP, Her Majesty's Secretary of State for Scotland We have the honour to submit our Report on Recovery of Possession of Herit- able Property. (Signed) C K DAVIDSON, Chairman E M CLIVE PHILIP N LOVE GORDON NICHOLSON W A NIMMO SMITH KENNETH F BARCLAY, Secretary 7 June 1989 We wish to acknowledge the considerable contribution to this long-standing exercise made by our immediate former Chairman, Lord Maxwell, and one of our former Commissioners, Mr John Murray, now Lord Dervaird. We are heavily indebted to them for their expertise and interest in this project. Contents Page Paragraph PART I INTRODUCTION The reference Background Consultation Scope of our recommendations Leases Security of tenure legislation Court proceedings Tacit relocation Term and quarter days Contracting out of statutory notice provisions Summary of contents PART I1 TERMINATION OF LEASES Introduction Section A: Form and Content of Notice Effect of notice of termination Necessity for written notice Single document Different notices by landlord and tenant Single form of notice Essential requirements of notice of termination Section B: Minimum Period of Notice Non-agricultural subjects Calculation of the period of notice Agricultural holdings Section C: Miscellaneous matters relating to termination of leases Resumption of leased property Period of notice: non-agricultural subjects Period of notice: agricultural holdings Subjects in mixed use Dates of commencement and termination of lease Duration of lease Non-agricultural leases Agricultural holdings Application to a break Withdrawal of notice of termination Termination of tenancy other than by notice Where tacit relocation excepted Section 27(4) of the 1949 Act: postponement of operation of notice to quit PART I11 STATUTORY PROVISIONS ON NOTICE OF TERMINATION: CONTRACTING OUT Introduction Contracting out agreements in practice Renunciation of a lease Consultation Leases of Agricultural Holdings Review of prohibition on contracting out Minimum period of notice under contracting out agreement Contracting out for a longer period of notice Consistency with other provisions of the 1949 Act Page Paragraph Contracting out of notice of resumption Non-agricultural leases Tenancy of shops Tenancies regulated by the Rent (Scotland) Act 1984 Contracting out of notice of resumption General Requirements: Both types of lease Constitution of contracting out agreements Effect of agreements on successors PART IV GIVING NOTICE IN SPECIAL CASES Introduction Sub-tenancies Chain of sub-tenancies Right of resumption Termination of tenancy other than by notice Contracting out Compensation for disturbance under the 1949 Act More than one separate landlord Response to notice to quit Period of notice Termination of tenancy of whole subjects Agreement to contract out Determination of rent and compensation Compensation for disturbance Sub-tenant in possession of property Recommendations More than one landlord, each with interest in common Entitlement to receive copy notice Contracting out of statutory notice provisions Notice given before transfer or death Assignation of tenant's interest Form of intimation Assignation in security by landlord Assignation in security by tenant Creditor in possession Liferenters and fiars Notice as admission of title PART V NOTICE PROCEDURES ON DEATH OF PARTY TO THE LEASE Introduction DEATH OF TENANT Non-agricultural leases Notification of bequest or transfer as intestate estate Bequest of interest Requirement to give notice Period of notice Failure to give notice Possession by legatee after bequest refused Effect of notice Section 16(8) of the 1964 Act Transfer of interest as intestate estate Requirement to give notice Period of notice Effect of notice Failure to give notice Leases of agricultural holdings Notification of bequest or transfer as intestate estate Bequest of interest Period of notice Objection and application to Land Court Page Paragraph Failure to give notice to landlord Possession by legatee after refusal of bequest Transfer of interest as intestate estate Objection and application to Land Court Compensation on termination of transferee's tenancy DEATH OF PARTY TO A LEASE: GIVING NOTICE Giving notice where party has died Ending of entitlement to give notice to deceased party Right to respond to notice Operation of section 16 of the 1964 Act Death of sub-tenant in possession of leased property PART V1 TITLE TO SUE AND TO DEFEND Title to sue More than one separate landlord Landlords having interest in common Proper liferents Resumption of leased property Debtor under ex facie absolute disposition Title capable of completion Tenants Agents or factors Title to defend Service of notice as admission of title Property owned in common and liferents Sub-tenants Deceased tenant's or sub-tenant's interest PART V11 ORDINARY CAUSE PROCEDURE IN THE SHERIFF COURT Terminology for all proceedings Sheriff court:ordinary cause procedure The 1907 Act Introduction of the summary cause Actions excluded from the summary cause Extraordinary removings One form of ordinary cause proceeding Extract decree and charge to remove Period of charge Effect of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 PART V111 SUMMARY PROCEDURE IN THE SHERIFF COURT Summary Cause Rule 69 Period of induciae Problems of citation Composite actions Appeals Issue of extract decree Summary application under the 1970 Act PART IX PROCEEDINGS IN THE COURT OF SESSION Actions for removing One form of conclusion Letters of ejection Extract decree and warrant PART X COURT PROCEEDINGS: GENERAL ISSUES Introduction Violent Profits Action for removing Action of ejection vii Page Paragraph ~xtraordinaryremoving Agricultural tenancies Consultation: power to order caution Assessment of violent profits Abolition of violent profits Any occupation by defender Stage at which order may be made Requirement to show cause Recommendations Repeals Implementation of order Proceedings against Unidentified Persons Consultation English procedure Similar procedure for Scotland Use of interdict Acceleration of procedures for removing persons in unlawful occupation PART XI GENERAL MATTERS Giving notice Manner of service Proper address Change of landlord Allotments, crofts etc Application to existing leases Application to existing actions and decrees Repeals PART XI1 SUMMARY OF RECOMMENDATIONS APPENDIX A Draft Removing from Heritable Property (Scotland) Bill APPENDIX B List of those submitting comments on the Memorandum APPENDIX C List of those submitting comments on the Consultation Paper viii Part I Introduction The reference 1.1 In 1983 we received from the Lord Advocate and the Secretary of State for Scotland a reference under section 3(l)(e) of the Law Commissions Act 1965 in the following terms:- "To consider and advise on procedural and related requirements in connection with the recovery of possession of heritable property, with particular reference to notices to quit, title to sue and to defend in actions for recovery of possession, and the relevant court procedures, with a view to rationalisation and simplification of the law." Background 1.2 The general law relating to recovery of possession of heritable property1(some- times described as the law relating to removings and ejections) is in an unsa~tisfactory state. The problems associated with this branch of the law arise from statute, from the common law and from case-law. Statute law is unquestionably the main source of difficulty, in particular the Sheriff Courts (Scotland) Act 1907.2The provisions in the 1907 Act are unnecessarily complicated and can lead to confusion, pzlrticularly in regard to the statutory forms of notice to quit, the number and variety of periods of such notice and the processes by which questions relating to removing and ejection are brought before the court. It was said of the 1907 Act in one case3 that it "had thrown the whole matter (the law relating to actions of removing and ejection), which was by no means devoid of confusion at any rate, into still greater confiusion". 1.3 This area of law was considered by the Law Reform Committee for Scotland who made certain recommendations in their Second Report4concerning the statutory forms of notices to quit, the periods of notice to be given and the various court processes. These recommendations for amendment of the law were endorsed by the Committee on The Sheriff Court (the Grant C~rnmittee)~who noted6 that the law and procedure relating to actions of removing and ejection were "in considerable