Scottish Court of Session Decisions

The Marquis of Bute brought an action in the Sheriff Court at Ayr against Andrew Prenderleith, craving warrant to summarily eject him from a house know as Pennylands, Auchinleck.

The parties averred, inter alia—“(Cond. 1) The defender was till 10th November 1919 in the employment of pursuer as a gamekeeper at a weekly wage of 35s., and in addition he occupied in virtue of his employment the house known as Pennylands foresaid belonging to pursuer, with fuel and cow's grass. Defender's answer is denied so far as inconsistent herewith. ( Ans. 1) Admitted that the defender was in the employment of the pursuer as a gamekeeper from July 1907 till 10th November 1919, latterly at the weekly wage stated, and with fuel and cow's grass. Admitted further that the house Pennylands was let to him in virtue of his employment, and the rent thereof was counted in his remuneration. Explained that the said house is a dwelling-house to which the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 applies. The rateable value of said dwelling-house is £4 per annum. (Cond. 2) On or about 26th August 1919 the pursuer, through his head gamekeeper Andrew Law, gave verbal notice to the defender that in view of the sale of a large proportion of the farms on the estate his services would not be required after 10th November 1919, and that his occupancy of said house would terminate with his employment. (Ans. 2) Admitted that the head gamekeeper Andrew Law on or about the date mentioned intimated to the defender that his services would probably be dispensed with at 10th November 1919. Nothing, however, was said as to terminating the occupancy of house. (Cond. 3) The defender's employment with pursuer accordingly terminated on said 10th November 1919, although the pursuer paid him wages up till the end of November 1919. Defender's answer is denied so far as inconsistent herewith. ( Ans. 3) Admitted that on 7th November 1919 the said Andrew Law intimated to the defender that his employment would cease on 10th November 1919. Admitted that wages were paid up till end of November 1919. Explained that on and after 11th November 1919 the defender continued to occupy said house. Averred that from and after said date defender became a yearly tenant of said house.”

The pursuer pleaded—“1. The defences are irrelevant. 2. The defender's possession of the said subjects having been incident solely to his service with pursuer, now terminated, and defender having no title to possess said subjects otherwise, pursuer is entitled to warrant with expenses as craved.”

The defender pleaded—“1. The defender's occupancy of said house being still current, and not having been ended by legal notice,

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the present proceedings are incompetent and should be dismissed. 2. Alternatively, the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 being applicable to the dwelling-house in question, it is not, in the circumstances condescended on, reasonable to grant the warrant craved; and the action should be dismissed with expenses.”

On 22nd July 1920 the Sheriff-Substitute ( Broun) sustained the first plea-in-law for the pursuer and granted warrant of ejection.

Note.—“In this case the agent for the defender admitted that he would have no defence if his client were not protected by the Increase of Rent and Mortgage Interest (Restrictions) Act 1920. He, however, contended that under the terms of that Act a gamekeeper, part of whose remuneration was the use of a house belonging to his master, was entitled to retain possession of the house after his contract of service had been brought to an end, and occupy the house as a yearly tenant as long as he paid the standard rent as defined by the Act.

In my opinion this contention is untenable. On the termination of a contract of service a servant is bound to quit any house which he occupies as part of his wages. Section 5 of the Act of 1920 only applies to questions between a landlord and tenant. A person in the defender's position ‘is not considered as a tenant with a right to tenants’ privileges, nor entitled to the usual warning given to them prior to removal from their houses'—Fraser on Master and Servant, 2nd ed., p. 332. As Lord Deas remarks in Scott v. M'Murdo ( 1869, 6 S.L.R. 301), with regard to one in the defender's position—‘He was not a tenant. If the place he occupied had been part of the mansion-house the matter would have been clear.’ The defender had no longer a title of possession of the house after he ceased to be in the pursuer's service. He became a squatter or trespasser, and could have been removed without any warrant after he had been requested to leave the house and been allowed a reasonable time to remove his goods— Sinclair v. Todd, 1907 S.C. 1038, and cases there cited.”

The defender appealed to the Sheriff ( Mackenzie), who on 28th October 1920 adhered to the interlocutor of the Sheriff-Substitute.

Note.—“The agent for the appellant and defender submitted an able argument, which if given effect to would extend the scope of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 far beyond anything to be found in the statute, or, unless all the canons of construction of a statute are to be disregarded, can possibly be construed therefrom.

He argued that the word ‘tenant’ in section 5 (1) of the Act must be read in what he called its popular sense, and be construed as equivalent to ‘occupier,’ and he endeavoured to fortify his contention by a reference to section 12 (1) ( g), which provides—‘The expression “landlord” also includes in relation to any dwelling-house any person other than the tenant who is or would but for this Act be entitled to possession of the dwelling-house.’

He further contended that even assuming the relation of landlord and tenant did not exist, the pursuer and respondent was not entitled to decree unless the Court was satisfied—(1) that the resumption of the house by him was reasonably required; and (2) that it was reasonable to make the order, and he relied on section 5 (1) ( d) of the Act.

On a consideration of the pleadings and the arguments submitted, I am of opinion that no relevant defence has been stated to the action.

With regard to the contention that the word ‘tenant’ as used in the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 must be construed in a wide and popular sense so as to include any ‘occupier,’ I dismiss it at once as clearly untenable.

This Act, like all prior legislation of the same category, had for its object the limitation of the common law rights of the landlord, and therefore must be strictly construed. Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a strict construction. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights. It is presumed, when the objects of the Act do not obviously imply such an intention, that the Legislature does not desire to confiscate the property or to encroach upon the rights of persons, and it is therefore expected that if such be its intention it will manifest it plainly, if not in express words, at least by clear implication and beyond reasonable doubt—Maxwell on the Interpretation of Statutes, p. 501. To give effect to the appellant's argument would, it appears to me, violate the rules of construction just quoted.

The argument for the construction of the word ‘tenant’ in the Act contended for was further supported by a reference to section 12 (1) ( g) of the Act already quoted. This in my opinion has no application to the question at issue.

The appellant and defender in his defences, answer 1, avers that the house Pennylands was let to him in virtue of his employment, and the rent was counted in his remuneration, and in answer 3, that on and after 11th November 1919 he continued to occupy said house, and that from and after said date he became a yearly tenant of said house. He does not, however, aver what was the rent agreed upon betwixt the parties, without which there could be no completed contract of let.

I am of opinion that the true relation between the parties was that of master and servant and not landlord and tenant, and that the defender occupied the subjects in virtue solely of his employment as a gamekeeper by the pursuer. This is fully explained by the learned Sheriff-Substitute in the note to his interlocutor, with which I concur and have nothing to add.

If the relation of landlord and tenant has never existed between the parties, there is no obligation on the pursuer to offer to provide alternative accommodation for the defender.

I have accordingly refused the appeal with expenses.”

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The defender appealed, and argued—The appellant was protected from ejection by the Increase of Rent and Mortgage Interest (Restrictions) Act 1920, section 5. The purpose of the Act was to provide security of possession. Payment of rent in services did not exclude its application—section 12 (1) ( f) and ( g); or prevent the occupier being a tenant—Fraser on Master and Servant, p. 7; and for continued possession, when the services had been made impossible by the act of the landlord, the occupier could pay a money equivalent. Nor was the application of the Act excluded from the case of possession solely under a contract of service. It was apparent from the double expression in section 5 (1), “No order … for the recovery of possession … or for the ejectment of a tenant,” that the Act was intended to apply to all cases of legally obtained possession— Dobson v. Richards, 1919, W.N. p. 166. To limit its application to tenants as defined by common law would render the provisions as to employees in section 5 (1) ( d) and ( i) nugatory.

Argued for the respondent—The Act did not apply to the appellant's case. It applied only to cases of landlord and tenant as defined by common law. This was apparent from the use of the word “restrictions” in the headings and from the provision as to standard rent—section 12 (1) ( a). There was no question of a casus improvisus, for the Act contained provisions regarding houses let to landlords' employees—section 2(1) ( e), 5 (1) ( d) and ( i). Section 5 (1) ( i) was conclusive against the appellant.