Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT PETERHEAD

 

Note

 

By

 

Sheriff Philip Mann

 

In causa

 

Gordon Malcolm Maclure, Trustee in the Sequestrated Estate

of

Sally J Stewart

 

Against

 

Sally J Stewart and Steven Wilson

 

Peterhead 13 September 2011

 

1. This note is written at the request of the Pursuer in this action of division and sale and arises out of my refusal to grant orders for possession and ejection sought by the Pursuer. I indicated when refusing the orders that I would be prepared to write a note if requested so to do.

 

2. The Pursuer is the Trustee in the sequestrated estate of the First Defender. As such he is vested in the one half pro indiviso share of the dwellinghouse 14A Victoria Road, Peterhead formerly owned by the First Defender. The Second Defender is the owner of the other one half pro indiviso share of the dwellinghouse. The First and Second Defenders reside in the dwellinghouse with their son and daughter, aged 22 and 19 respectively.

 

3. The action has never been defended.

 

4. On 28 July 2011 the Pursuer lodged a minute seeking orders in terms of craves 1 to 4 of the Initial Writ. Briefly, these craves were for:-

 

1. Warrant for division of the dwellinghouse, which failing for its sale by public roup or private bargain

 

2. Warrant to sell the Pursuer's one half pro indiviso share in the dwellinghouse in terms of the Bankruptcy (Scotland) Act 1985 section 40(2)

 

3. Warrant to obtain vacant possession and to enter into possession of the dwellinghouse

 

4. Warrant to eject the First and Second Defenders and their family, etc.

 

5. I arranged for the case to call before me in chambers because I doubted the competency of granting orders in terms of craves 3 and 4. The case called on 2 September 2011 when I was addressed by Mr Gibb, as local agent acting for Glasgow agents, on behalf of the Pursuer. Standing the prior procedure and interlocutors in the case there was no issue in relation to the orders sought in terms of craves 1 and 2. I granted them.

 

6. In moving for orders in terms of craves 3 and 4 Mr Gibb referred to section 40(3) of the 1985 Act. Its terms did not exclude vacant possession. As against that, McBryde on Bankruptcy, second edition, at paragraph 9.72 expressed doubt about the ability of a Trustee to evict a co-proprietor. However, in the case of Price v Watson 1951 SC 359 the Lord President (Cooper) opined that it would be unsafe to affirm in absolute terms that one pro indiviso proprietor could never under any conditions eject another from the common property. Mr Gibb advised me of the Pursuer's apprehension that the Defenders would refuse to cooperate in regard to the sale of the dwellinghouse and would fail to yield possession following the sale of the subjects. Accordingly, the orders sought would be appropriate.

 

7. I was unconvinced by Mr Gibb's submissions. A Trustee in Bankruptcy is in no better a position than any other pro indiviso proprietor. Until such time as the court order for sale of the property is implemented both pro indiviso proprietors retain their right of ownership. Ownership, at least in the case of a natural person, carries with it the right to occupy. Neither pro indiviso proprietor has any greater right than the other. It follows, therefore, that one pro indiviso proprietor cannot eject the other. In Price v Watson Lord Keith sought to differ from the Lord President and clearly reasoned that an action of ejection by one pro indiviso proprietor against the other was incompetent.

 

8. I remained unconvinced even in the face of Mr Gibb's (dare I say it, instructed, less than half hearted and presumably tongue in cheek) reliance upon the checklist for Glasgow Sheriff Clerks in regard to actions of division and sale and the guidance therein relating to ancillary craves.

 

9. Arguably, the Pursuer has a right of possession as against both Defenders but in my view an order for possession in favour of the Pursuer would serve no useful purpose. I am doubtful if the Pursuer, as a Trustee in Bankruptcy, could competently possess the dwellinghouse naturally but, in any event, I think it safe to say that the Pursuer would not wish to move in with the Second Defender. The Pursuer could not exercise civil possession by installing a tenant without the consent of the Second Defender (see the remarks of Lord Keith in Price v Watson and his reference therein to Bell's principles).

 

10 It may be true that the Pursuer has a right of ejection as against the First Defender but he has no such right as against the Second Defender. An order for the ejection of the First Defender would likewise serve no useful purpose as she would retain the right to occupy through the tolerance of the Second Defender. I suppose it might be argued that the First Defender is in the position of an outsider as regards the ownership of the property and that, as such, she may only occupy if both pro indiviso proprietors are in agreement. I prefer to think that the right of the Second Defender to have the First Defender live in family with him would trump any veto that the Pursuer might pretend to have in a case such as this.

 

11 It may be that the Pursuer's apprehensions about the Defenders' lack of cooperation as regards the sale of the dwellinghouse will turn out to be true but that is no reason for me to grant the orders sought. The Pursuer will have other remedies should the Defenders fail to cooperate.

 

12. For completeness, I should say that in preparing this note I have become aware of the cases of Reith v Paterson 1993 S.C.L.R 921 and Langstane (SP) Housing Association v Davie 1994 S.C.L.R. 158. In each of these cases, though in differing circumstances, it was held that an action for recovery of possession of heritable property by one pro indiviso proprietor against another was incompetent. In Reith v Paterson Sheriff Principal Nicholson also pointed out that the Pursuer who holds a decree authorising the sale in an action of division and sale can seek the assistance of the court in order to have the defender brought to account for not obtempering the decree, and that it could therefore not be said that an action for the recovery of possession of heritable property was the only remedy available to the Pursuer. Mr Gibb, instructed as he was, did not refer to either of these cases (or, at least, I have no note that he did) but given that I had already come to the conclusion that I did no harm has been done.

 

13. For all of the foregoing reasons I refused to grant the orders sought in terms of craves 3 and 4, such either serving no useful purpose or being incompetent.

 

 

 

 

Sheriff Philip Mann