Title to land – Prescription – Possession – Defenders occupying cottage and paying weekly sum to pursuer’s father as “rent” – Whether pursuer having title to cottage – Whether title established by 1961 disposition of superiority title to pursuer’s father supported by 10 years’ continuous possession – Whether father possessing through defenders – Whether such possession established only where defenders occupying as tenants under lease – Judgment for pursuer
The pursuer was the son and executor of the deceased’s estate. Throughout his life, the deceased had lived near Kilmarnock in one of two semi-detached cottages. The deceased occupied cottage no 1 while his mother occupied the other cottage, no 2, until her death in 1991. The last recorded disposition of the dominum utile of the cottages dated from 1868. The superiority title to the cottages was conveyed to the deceased by a disposition made in 1961.
After the death of the mother, cottage no 2 lay empty until late 1992 when, by arrangement with the deceased and his wife, the defenders moved into it. They paid £15 per week to the deceased in connection with their occupation of no 2 and carried out assorted works of repair and maintenance.
By a non domino disposition dated 2006, another neighbour of the defenders purported to convey no 2 to them. Following the death of the deceased, the pursuer brought an action against the defenders for reduction of the 2006 disposition and an order requiring them to vacate no 2. The defenders did not dispute that the 2006 disposition was insufficient to confer on them a real right of ownership in no 2. However, they disputed the pursuer’s title to being the claim. The pursuer relied on section 1(1) of the Prescription and Limitation (Scotland) Act 1973 as giving him a sufficient title, based on the 1961 disposition supported by possession for a continuous period of 10 years openly, peaceably and without judicial interruption.
The central issue was whether the deceased had possessed no 2 for the necessary period of 10 years before sections 1 and 2 of the Abolition of feudal Tenure etc (Scotland) Act 2000 came into force in November 2004, when superiority interests in land had ceased to exist. The defenders contended that the pursuer could not establish such possession since the deceased had not been in physical possession of no 2 and civil possession could not be established in the absence of evidence that the defenders occupied as tenants under a lease.
Held: Judgment was given for the pursuer.
For the pursuer to succeed, it was necessary for him to establish that the deceased had civil possession of no 2 for 10 years prior to November 2008. For that purpose, it was not necessary to show that the defenders occupied no 2 as tenants under a lease from the deceased. The 1961 disposition did not purport to convey to the deceased only the superiority of the relevant lands but was properly characterised as a grant of the lands themselves. The deceased therefore obtained the right to possession the cottages subject only to the burden of the dominum utile.
A possessor of land could continue in possession through others who had the physical or natural possession of it. A landlord having civil possession through the natural possession of a tenant was just one example of such a situation; there was no definitive list. Whether the defenders’ occupation of no 2 constituted an act of possession by the deceased therefore fell to be determined by a consideration of the whole facts and circumstances, as established in the evidence, and did not depend on whether the defenders were tenants under a lease: Hamilton v McIntosh Donald Ltd 1994 SC 304 applied.
When the deceased purchased the superiority title in 1961, no one was exercising rights in respect of the cottages as owner of the dominum utile. It was a reasonable inference from the evidence that the deceased’s intention in taking title was to establish a real right to the cottages for himself. On the evidence, the defenders had agreed to pay £15 per week, and to carry out repairs and maintenance to no 2, in return for the deceased’s consent to move in. They were not free simply to walk in and start living there and, if they had failed to pay the £15 per week as agreed, they would have been in breach of their agreement. They had continued to make that payment until 2006 and both they and the deceased had considered it to be a payment of rent. Accordingly, the deceased had considered himself to be the landlord and the defenders the tenants of no 2. When he agreed that the defenders could move into no 2, the deceased therefore had the necessary intention to possess no 2. The defenders only occupied no 2 because they had the deceased’s permission to do so and, in all the circumstances, their possession of no 2 was derived from the deceased’s right to possess it.
It was irrelevant that the defenders did not believe that the deceased owned no 2. Natural possession by one person could amount to civil possession not only when the possession acknowledged the right of the civil possessor, but also when the possession was derived from the right of the civil possessor. Accordingly, it did not matter that the defenders’ occupation of no 2 did not acknowledge the deceased’s right of ownership.
It followed that, in all the circumstances, allowing the defenders to take, and remain in, possession of no 2 was an act of possession by the deceased and it was not necessary to determine whether the defenders’ occupations satisfied the requirements for a lease.
Where the pursuer had to establish the deceased’s civil possession through the medium of the defenders’ physical possession, it was the physical possession of the defenders that had to be open, peaceable and without judicial interruption, since civil possession was derivative of natural possession. The defenders’ possession met those requirements. Accordingly, the pursuer had established that the deceased possession to relevant interest for a continuous period of 10 years from 1992, that being the date when the defenders moved into no 2.
Robin Cleland (instructed by Beveridge & Kellas SSC) appeared for the pursuer; Julie McKinlay (instructed by Balfour+Manson LLP) appeared for the defenders.
Sally Dobson, barrister
