Indefinite occupiers of Stranraer property win appeal against sheriff’s eviction order

About this case:

• Citation:
  [2024] SAC (Civ) 18
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Catherine Dowdalls KC

An action for recovery of possession of the property occupied by Neil Farroll and his partner Joyce McMeikan was raised by Emma, Laura, and Rebecca Alexander on the basis that the appellants no longer had a need for the property. The appellants argued that the sheriff was wrong to read in an additional expiry condition that triggered if they could be said to no longer need to occupy the property.

The appeal was heard by Sheriffs Principal Aisha Anwar and Kate Dowdalls, along with Appeal Sheriff Andrew Cubie. G Henderson, advocate, appeared for the appellants and McAndrew, advocate, for the respondents.

A matter for evidence

The first appellant had occupied the property since 1990, initially with his former partner Margaret Gulline until her death in 2005 and then more recently with the second appellant. Margaret Gulline died intestate, but by means of a Deed of Family Arrangement the executors of her estate agreed they would convey the property to the Alexanders while granting the first appellant a right to occupy the property “for as long as he shall require”.

Following the conveyance, the first appellant and the respondents agreed a Minute of Agreement regulating his use of the property. Clause First reiterated his right to occupy the property so long as he should require, while Clause Six provided that the respondents could resume possession of the property on either the death of the appellant or his giving written intimation that he no longer required to occupy the property.

On 30 August 2021, the respondents’ solicitor wrote to the first appellant contending that he no longer required to occupy the property as he owned three other properties in Stranraer jointly with the second respondent. The appellant refused to vacate, leading to an action before the sheriff.

The sheriff found that clause six of the Minute did not prescribe the circumstances under which the first appellant’s right would terminate. Whether he “required” to occupy the property was a matter for evidence, which per Clause First was an additional basis for expiry. As for the second appellant, there was no basis to read in an incidental right for another person to reside in the property with the first appellant.

It was submitted for the appellants that the sheriff erred in holding that clause six did not prescribe the circumstances under which the first appellant’s right expired. The word “require” could not be construed as “need” as the sheriff had done. Further, no averments had been any made by the respondents as to whether any of the other properties owned by the appellants were habitable or provided suitable alternative accommodation.

No such clause exists

Delivering the opinion of the court, Sheriff Principal Dowdalls said of the terms of the Minute: “Clause Six of the Minute provides the only mechanism for bringing an end to the first appellant’s right to occupy the property. Nowhere else in the Minute is there a right or obligation conferred on any party to terminate the first appellant’s right to occupy for as long as he requires. One might have expected to see a clause providing that, in the event of his marriage or cohabitation with a third party, his right would come to an end; no such clause exists.”

She continued: “The first appellant has not given notice that he no longer requires to occupy the property. That being the case, his right to occupy continues. No question arises whether, on an objective analysis, he requires the property or not. Only he may give notice; it follows that only he may determine whether and when he no longer requires to occupy the property. That conclusion is an evitable consequence of the application of the principles of contractual construction.”

Expressing some sympathy for the position of the respondents, the Sheriff Principal said: “The first appellant has occupied the property for around 18 years. He has done so without payment of rent. The respondents are unable to benefit from the deceased’s estate until one of the two events set out in Clause Six comes to pass. However, as observed by Lord Neuberger in Arnold v Britton (2015), the mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language.”

She concluded: “As neither of the two events set out in Clause Six has come to pass, the respondents are not entitled to the declarators sought. Insofar as the second appellant is concerned, her occupancy of the property is entirely dependent on the first appellant continuing to exercise his right to occupy.”

The appeal was therefore allowed, with the interlocutor of the sheriff recalled and the case dismissed.