Sheriff Appeal Court rules spouse of executor living in estate property could not apply for recall of decree of ejection

About this case:

• Citation:
  [2024] SAC (Civ) 44
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Santander UK plc raised a claim for recovery of possession under which Mr Sajjad Soofi, the second respondent, was substituted as defender in place of his late mother. His wife Rumellag Soofi resided in the property with their children and Mr Soofi’s father, and she sought recall of the decree of ejection on the basis of her status as a non-entitled spouse.

The appeal was heard in the Sheriff Appeal Court by Sheriff Principal Aisha Anwar KC, with Clair, advocate, appearing for the appellant and Garden, advocate, for the first respondent. No representations were made on behalf of the second respondent.

Absurd result

Santander was the heritable creditor of the late Mrs Bushara Soofi, the registered proprietor of a property on Titwood Road in Glasgow. In May 2016 it raised proceedings seeking recovery of possession of the property. However, Mrs Soofi died in October 2016, and her son Sajjad Soofi was appointed her sole executor. He was sisted into proceedings in October 2017 in his capacity as executor. The will left the property in unequal pro indiviso shares to Mr Soofi and his sister, with Mr Soofi holding a two-thirds share.

In establishing her right to apply for recall the appellant founded on section 24C(1)(b) of the 1970 Act, which allowed the non-entitled spouse of the debtor or proprietor of security subjects that are a matrimonial home to apply for recall. The sheriff noted that the term “debtor” could extent to a debtor’s executor but concluded that as an executor did not obtain any personal or proprietary rights on appointment to office, instead acting as a trustee of the estate, their spouse could not be regarded as an entitled resident.

For the appellant it was submitted that the sheriff erred in his approach to the terms “debtor” and “proprietor” and impermissibly read additional words into the legislation. Parliament had intended to extend the protection afforded by the 1970 Act to the widest class of persons, and any undesirable consequences of this were for Parliament to address. An executor, while uninfeft, was still a proprietor.

Counsel for the first respondent submitted that the role of an executor was purely administrative and stood in the shoes of the debtor only to parties such as creditors or other third parties such as tenants. Were the appellant’s position correct it would lead to an absurd result of executors being permitted to breach their duties to administer the estate for the benefit of beneficiaries or to avoid conflicts of interest.

Absence of intention

In her decision, Sheriff Principal Anwar observed: “There appeared to be no dispute that the property was occupied by the appellant and the second respondent. Before the sheriff, the appellant had submitted that the property was ‘plainly a matrimonial home’. The first respondent did not take issue with that submission; the sheriff was not invited to address the issue; and it was not the focus of submissions before this court.”

She also noted: “It is not said whether, when, or by what means, the second respondent has acquired any rights enabling him to ‘provide the property or make it available’ as a family residence. I was not addressed on this issue and thus form no concluded view; however, in the absence of averments dealing with the basis upon which it is asserted that the property is a matrimonial home, the application may be of questionable competency.”

Turning to what was meant by a proprietor, the Sheriff Principal said: “The term ‘proprietor’ is not apt to include rights conferred upon those who occupy an office, such as that of executorship, which has, at its very core, the purpose of administering an estate by ingathering and distributing property; an executor has a duty to confer exclusive rights of ownership upon those with a right to it, namely the beneficiaries. As the sheriff correctly identified, an executor acts as a trustee of the deceased’s estate for the beneficiaries, subject to the rights of creditors.”

Sheriff Principal Anwar concluded: “Were the appellant’s interpretation of section 24C(1)(b) to be preferred, it would lead to manifestly unfair or unreasonable results. Most notably, an executor who occupies a property belonging to the deceased is likely to be acting in breach of his duty to administer the estate for the benefit of the beneficiaries. Difficulties too would arise upon the resignation or removal of an executor from office. In the absence of a clear intention on the part of the legislature to extend occupancy rights to executors and, in turn, their spouses, the expansive interpretation contended for by the appellant cannot be supported.”

The appeal was accordingly refused.