Secure tenancy — Right to buy — Conclusion of missives — Tenant dying before settlement of transaction — Whether executors entitled to enforce contract against council — Appeal by council dismissed
Prior to his death the late George Cooper was the tenant of 2 Loganlea Gardens, Edinburgh; the appellant district council were his landlords. On January 12 1987 he made an application to purchase his house under section 63(1) of the Housing (Scotland) Act 1987. This resulted in missives of sale being entered into dated March 15 and 25 1987 whereby the council contracted to sell the house to him at a price of £6,900. George Cooper died on July 17 1988; no disposition had by then been executed. The respondent executors raised an action against the council concluding for implementation of their part of the missives of sale.
The council took a plea of relevancy contending that the contract was personal to the deceased and could not be enforced by the respondents. The deceased lived alone and there was no person qualified to succeed to the secure tenancy.
Held The appeal was dismissed.
The constitution of a contract of sale does not put an end to the secure tenancy, which will continue until the transaction is settled by delivery of the disposition of the subjects. But the contract of sale necessarily amounts to a written agreement between landlord and tenant to bring the tenancy to an end within the meaning of section 46(1) of the Act. So although a qualified person may succeed to the secure tenancy of one who has died after entering into a contract of sale, the secure tenancy to which he succeeds is one which will be brought to an end on the settlement of the transaction.
The secure tenant exercises the right to purchase his house by accepting, in accordance with section 66(1), the landlord’s offer to sell. As provided for in section 66(2) a contract of sale of the house is then constituted. The right to purchase having been exercised, does not revive in favour of a qualified person succeeding to the tenancy on the death of the secure tenant before settlement of the transaction. The tenancy to which he succeeds is one which is limited to come to an end. The respondents are therefore entitled to enforce the contract.
A R Hardie QC and Scott Brady (instructed by Rees & Freres) appeared for the appellants; and Brian Gill QC and Patrick Hodge (instructed by A & WM Urquhart) appeared for the respondents.
