Land Court finds 70-year-old man to be sole tenant of Stirling Farm in dispute with brothers over amnesty notice

About this case:

• Citation:
  [2024] SLC 11
• Judgment:
  External link
• Court:
  Scottish Land Court
• Judge:
  Lord Minginish

Charles McAllister raised the action against his brothers Walter and George McAllister, acting as the executors of their mother, the late Martha McAllister, seeking approval for improvements specified in an amnesty notice in terms of the Land Reform (Scotland) Act 2016. The respondents contended that the lease was to a partnership rather than the applicant individually and had ended on Mrs McAllister’s death on 18 December 2018.

The case was heard by the President of the Court, Lord Minginish, and Tom Campbell. Andrew Upton appeared for the applicant and Hamish Lean for the respondents.

Arrangement between partners

The parties’ parents purchased Patrickston Farm as originally comprised, the applicant having bought additional land in 1989, and occupied it until their retirement in or around 1984. Since then, the land was farmed by the applicant with no other member of the family having an active involvement. Mrs McAllister was left as sole proprietrix of the farm following her husband’s death. It was contended by the respondents that the tenancy of the farm was held by a partnership comprising the applicant and the deceased, in which case the application would fall to be refused.

Evidence was given by the applicant, who stated that he had agreed with his parents to pay an annual rent of £2,000, later £2,500. Receipts for rent were produced showing the deceased signing her name as “M M McAllister”, made out to “Charles J McAllister”, which the respondents contended meant the trading name of a partnership between the two of them rather than to the applicant personally. He likewise declined that the designation “Charles McAllister Business Account” on the farm account was a business name.

Reference was also made by the applicant to a Sheriff Court case to which his mother had been a party in 1995, in which a finding in fact was made that the applicant was the tenant of Patrickston. However, in the evidence of Walter McAllister, he said that in the course of administering his mother’s estate he and George McAllister had become aware that accounts were prepared for the partnership of Charles J McAlister. The applicant explained this as a partnership with his then wife, Mhairi, which was not put into writing.

For the applicant it was submitted that the evidence of the applicant ought to be preferred. It was quite common for one member of a farming family to have title to the land, whether as owner or tenant, but for the farming to be carried out by a partnership. At best, the accounts reflected an arrangement between partners, not a relationship between the landlord and the partnership.

The respondent’s solicitor submitted that it was incredible that partnership accounts as late as March 2018 could refer to Mhairi McAllister, given they had divorced in 1993. So far as the Sheriff Court action, with its finding-in-fact that the applicant was the tenant of Patrickston, was concerned, the issue in that case had not been the identity of the tenant but liability for the maintenance of shared road.

Gaps and weakenesses

In its decision, the Land Court described the evidence given as unsatisfactory, saying: “The accountant who prepared the accounts which have been produced was not called as a witness. The accountant who was called, Mr Smith, was asked to speak to accounts he had not prepared and the accounts he had prepared were not produced. Mrs Mhairi McAllister was not led as a witness. No doubt there were good reasons for these gaps and weaknesses in the evidence but the result was that the most appropriate people did not speak to key elements of the case.”

He continued: “One might reasonably have expected the accountancy evidence to put the identity of ‘Mrs M McAllister’ beyond doubt, but not only is it deficient in the respects mentioned but there were aspects of Mr Smith’s evidence which left us unimpressed.”

Determining the nature of the tenancy from the facts, the court said: “The only evidence which supports [the respondents’] view comprises the payments of rent, rates and insurance and the entries for ‘Land and Buildings Leasehold’ contained in the accounts. Here again, the weaknesses in the accountancy evidence are relevant. These are (a) that Mr Smith was not the accountant who produced these accounts, although he said the ones he had produced were similar, (b) that he fluctuated between saying the rent was for the farmhouse and saying it was for the farm and (c) that he had ‘no idea’ that Patrickston Farm comprised two areas of land, one owned by Martha McAllister and one owned by Charles.”

The court concluded: “The evidence to the effect that the applicant was tenant as an individual is much stronger. Aside from the evidence of the applicant himself, there is the evidence of how his mother regarded him, both in what she said in the Sheriff Court litigation and how she made out the rent receipts. We realise that the issue in the litigation was not the identity of the tenant of Patrickston, but the fact is that she referred to him as being the tenant, not any partnership. That is consistent with the way she made out the rent receipts. It is also consistent with all the documentation produced relating to the operation of the farm.”

Accordingly, the court found the applicant to be the sole tenant of the farm and granted the application.