The Fifth Element: Exclusive Possession in the Scottish Law of Leases

This blog post is by Mitchell Skilling, a 2016 LLB (Hons) graduate. It is based on the presentation he gave at the launch of the seventh volume of the Aberdeen Student Law Review, itself based on an article that he wrote for that volume.

At a common law level, the Scottish contract of lease is made up of four elements:

  1. parties acting as landlord and tenant;
  2. a property to be leased;
  3. payment of rent; and
  4. a period over which the contract has effect, which in Scots could be described as a definite ish (or end date).

Combined, these four requirements afford each party a personal contractual right enforceable against the other. A contract lacking one or more of these requirements is instead likely to be a contract of licence. However, there is a fifth element that lurks outside of this four-element paradigm: exclusive possession of the leased subjects by the tenant.

Under the Leases Act 1449, a tenant entering into possession of their leased subjects will, provided that the four elements are present, gain a real right enforceable against their landlord’s singular successor. This cannot be achieved with a licence agreement, which will only ever afford a personal right. Possession here has been clarified to mean exclusive possession (Millar v McRobbie 1949 SC 1, 8). Similarly, the various Housing Acts in the social and private rented sectors as well as the Agricultural Holdings Acts have used exclusive possession as a mechanism for obtaining security of tenure, a powerful right that protects the tenant against eviction without a legal ground, even past the end date of their lease.

From this, it would appear that exclusive possession plays no role in the construction of a common law lease, and that it is rather used only to obtain additional rights once that lease has been established. However, there appears to be a growing school of thought that it is an essential requirement on par with the other four. This was the opinion of Sheriff Gordon in the case of Conway v Glasgow City Council (1999 Hous. LR 20), which related to accommodation in a hostel for homeless people.

In that case, Sheriff Gordon stated that the law had ‘come increasingly to talk of exclusive possession as a necessary condition of a lease.’ To support this proposition, he cited the earlier case of Commercial Components (Int) Ltd v Young (1993 SLT (Sh Ct) 15). That case was an appeal to a Sheriff Principal in which it was said that exclusive possession was ‘one of the badges of a lease.’ In addition, Sheriff Gordon was persuaded by the defender’s arguments relating to the case Brador Properties Ltd v British Telecom Plc (1992 SC 12), which came before the Inner House of the Court of Session. The pursuer in the Conway case had tried to use Brador as authority for exclusive possession not being a feature of a lease, but Sheriff Gordon felt that it was in fact consistent with exclusive possession being a requirement of a lease as it was concerned with the question of what needed to be exclusively possessed.

Whilst Conway proceeded to appeal, it was ultimately decided on the basis of another, more successful, argument made by the pursuer, based on contractual rights unrelated to a tenancy. This meant that no further comments were made about Sheriff Gordon’s opinion on leases. This is a pity, as it is clear that these comments are not wholly consistent with the most likely readings of those two cases.

In the case of Brador, the idea that this case is consistent with exclusive possession as an element of a common law lease is at odds with its treatment of Street v Mountford ([1985] 1 AC 809), a case that is authority for this requirement in England and Wales. The Inner House stated that Street was of no assistance in this case, which suggests that their comments on sufficient possession instead related to an unspoken degree of possession that would rule out a lesser agreement.

Meanwhile, the reading of the term ‘badge of a lease’ from Commercial Components seems stretched in its interpretation. The word ‘badge’ does not suggest an essential element so much as an obvious, but not definitive, outward sign that something is the case, akin to a learner driver plate affixed to a car. Whilst it suggests a highly likely conclusion, it is not an absolute guarantee, and to treat it as such seems to go too far.

Later case law developments also seem to count against Sheriff Gordon’s interpretation of a lease. Denovan v Blue Triangle (Glasgow) Housing Association (1999 Hous LR 97), another hostel case decided later in the same year as Conway, did not use exclusive possession as a requirement of a lease, instead only bringing it in as something to be considered with legislation that first required a tenancy to be established. In the 2005 case of South Lanarkshire Council v Taylor ([2005] CSIH 6), it was held that a lease existed even with a contractual clause forcing the tenant to vacate their property at any time within a short notice period.

A final nail in the coffin for Conway came in the Land Court case of Cameron v Alexander. The landlord’s arguments in this case were strongly based on Sheriff Gordon’s opinion, however the court did not find them a persuasive authority. Instead, it stated that exclusive possession was an ‘important pointer’ in determining the nature of an indeterminate agreement, which seems more consistent with the ‘badge of a lease’ comment from Commercial Components.

Despite these comments, it may still be possible that there is a valid argument for including exclusive possession among the cardinal elements of a lease.

One such argument relates to legal certainty: that is, with a view to clarifying the distinction between leases and licences. Historically, the licence agreement has been rarely used in Scotland compared with its application south of the border, but in recent times the term has appeared more frequently in litigation. As such, a definitive difference between the two may be necessary in order to prevent future disputes. That being said, the introduction of a possessory requirement is not the only way to accomplish this. There is currently no statutory definition of a licence agreement, and while several texts have defined the term, no single one has become definitive. The creation of such a definition, rather than a modification of another type of contract, may serve as a better basis for distinguishing between the two.

Another argument for exclusive possession is that many types of lease now afford access to security of tenure, a right arguably greater than a personal right for its ability to keep a tenant in their property even past their ish date (assuming the landlord has no legal ground on which to evict them, such as non-payment of rent). Access to this right shifts the balance of power firmly in favour of the tenant, so perhaps the balance should be corrected by making those rights harder to access.

That being said, it has been observed by commentators such as Stalker that the various residential tenancy acts seem to have been designed to extend security of tenure to as many people as possible, so the introduction of a possessory requirement may go against the intentions of Parliament. Additionally, the introduction of a fifth element to benefit only one type of lease ignores the diversity present in the Scottish lease, which encompasses a broad variety of rights, some of which are not dependent on possession in order to be exercised.

Exclusive possession, then, is probably not the best means by which to distinguish leases from licences. What is required is a mode of distinction that respects the unique character of the Scottish lease and recognises the exact nature of the difference between the rights conferred by a lease and a licence.

The full article may be found in Volume 7 of the Aberdeen Student Law Review , which is available for free online viewing.

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Gotta catch ’em all, but what about the law? Access to land and #PokemonGO

This post is by Malcolm Combe

Amidst all that is going on in the world just now, I bet you a Jigglypuff you will have heard someone talking about Pokémon. You might not exactly know what this is, but you can still be affected, as this church in Glasgow discovered. You might have been bemused by the idea of people wandering around, smartphone in hand, chasing imaginary creatures in the augmented reality world of Pokémon GO. Or you might be an avid fan, so much so that you can identify with those who crowded into New York’s Central Park when a Vaporeon popped up.

This advance into augmented reality is a fun development for many and, it appears, a profitable one for Nintendo. That being the case, as the app has been rolled out across the world (launching in its native Japan today, as reported by BBC News) it has not been without issues. That news report highlights the first Japanese accident associated with the game has already occurred, after someone fell down some real stairs whilst distracted by the game. As it rolls across reality, it is clear there are safety issues involved with immersing yourself in augmented reality: in Scotland it might be mountainous terrain, in Bosnia it might be landmines. Its augmented reality has also rolled over the legal reality of various jurisdictions. The reality of realty, that is to say the reality of property law, allows landowners to take steps to retain and regain exclusive possession of their land in many circumstances. What those steps are will depend which jurisdiction a Pidgey nests in.

Scotland

What can a Scottish landowner do? In principle, the owner of land can get an interdict (a court order prohibiting certain conduct, equivalent to an English injunction) to prevent someone encroaching on her land by, for example, building on it. Similar orders could be obtained if someone was to undermine it or periodically intrude on it by swinging the jib of a crane over it. What about someone who turns up uninvited to your land without such profound plans? All they want to do is catch a Pikachu and move on, (hopefully) leaving the land itself undamaged and any real animals on it undisturbed. Can they do that?

Access to land in Scotland has been much discussed and often misunderstood. A commonly expressed sentiment is that there is no law of trespass in Scotland. That is not quite right, but from the other end of the spectrum a landowner putting up a sign saying ‘TRESPASSERS WILL BE PROSECUTED’ is likely to be sorely disappointed if it comes to an attempt to do so. Such signs might well suggest a desire to instigate criminal action against uninvited guests, but that is normally a matter for a public prosecutor in Scotland, namely the local procurator fiscal, rather than a landowner. Meanwhile, there are some circumstances when being on land can be a criminal offence, particularly if you are part of a disorderly group or if you cause damage to property or wildlife, but a careful Pokémon hunter should be able to avoid such offences. Indeed, a one-time, harmless trespasser might not even be liable for civil damages to a landowner in Scotland, although that should not be taken as an invitation to strut anywhere with impunity. Scotland is also criss-crossed by a number of defined public rights of way, allowing people to travel from one public place to another without fear of landowner challenge.

Private Property
This sign located off the old Deeside Railway promises prosecution for trespass. Good luck with that.

That gives an idea of the underlying Scots law position. That position has actually been liberalised by recent reforms, making the legal terrain even friendlier for access takers. The key legislation that does that is Part 1 of the Land Reform (Scotland) Act 2003. It gives everyone – yes, everyone, that is exactly what the statute says – rights to cross land or to be on land for certain purposes, including recreational purposes, subject to certain exceptions based on the character of the land or the conduct that is undertaken.

Those access rights are not unchecked: they must be exercised responsibly. Activity is not responsible if it interferes with the rights of other people, which includes other access takers as well as the landowner: if one person is lazily approaching a Snorlax, perhaps you should think carefully before you barge past them. There are also certain things that can never be classed as responsible, such as ‘hunting, shooting or fishing’ or taking motorised access (unless doing that in a vehicle which has been constructed or adapted for use by a person who has a disability). Although the term ‘hunting’ is not defined, it is respectfully submitted that hunting relates to real animals as opposed to augmented reality imaginary creatures.

Some land is excluded from the scope of access rights entirely, regardless of the conduct of a purported access taker. Access rights are simply incompatible with certain features on or of excluded land, such as a building, the ‘curtilage’ immediately surrounding a building, or a reasonably sized garden next to a dwelling. From this, we can glean that the interior of the church mentioned above would not be included in Scotland’s liberal access regime. Other exclusions include longstanding attractions where a fee is payable for entry, like Blair Drummond Safari Park, a sports field when it is in use, or farmland where crops are growing. Anyone seeking entry to such should ideally obtain permission: the ‘gotta catch ’em all’ defence will not wash here. In fact, Farmers Weekly has already carried an article warning Pokémon Go players to keep clear of farms.

Assuming the land itself is not excluded from access rights, can playing an augmented reality video game be classed as recreation? Recreation is not defined, but the Scottish Outdoor Access Code‘s (PDF) explanation of the term (at paragraph 2.7) is that it includes:

  • pastimes (such as watching wildlife, sightseeing, painting, photography and enjoying historic sites);
  • family and social activities (such as short walks, dog walking, picnics, playing, sledging, paddling or flying a kite);
  • active pursuits (such as walking, cycling, horse riding, orienteering, caving, air sports and wild camping); and
  • participation in events (such as walking or cycling festivals, hill running races, and orienteering events.

It does not seem a massive stretch to include Pokémon chasing as analogous to some of these activities, most notably orienteering.

England

All in all, it seems Scotland has a regime that is quite conducive to catching ’em all. What would be the position of an English landowner? It would be fair to say that England is not traditionally viewed as having a liberal access regime. Crucially, in England the very act of being on another person’s land without permission can give the relevant landowner a claim in damages, but England has also witnessed some important statutory reforms that widen access rights away from the traditional (delimited) public footpaths and occasional voluntary agreements.

The Countryside and Rights of Way Act 2000 applies to mapped open access land, which includes mountains, moor, heath and down, and registered commons (making a much smaller proportion of the country available for access when contrasted with Scotland, in the region of 865,000 acres). That legislation confers the right to enter and remain on land for the purposes of open-air recreation, but that right is restricted by twenty exceptions listed in a schedule to the statute.  The overall effect of this scheme would allow someone to walk on land, accompanied by a dog (but no other animal) and stop for a picnic, but not use a metal detector, camp or bathe in non-tidal water.  What about gaming? There is an exception relating to ‘organised games’. Previous DEFRA guidance suggested ‘organised games’ included ‘those which use a set pitch or defined area of play, organised starts and finishes and associated infrastructure, and which involves the participation of a number of people or a competitive element.  On the other hand, we do not consider that a family group or a small group of friends engaging in an ad-hoc game of rounders or cricket, playing with a frisbee etc are “organised games”.‘ As such, Pokémon hunting might just be alright in the areas mapped as open land, and perhaps also in coastal areas by virtue of the Marine and Coastal Access Act 2009.

Important as those areas are, what about the substantial area of land not covered by such legislation? In those circumstances, players may have to hope their desired Pokémon appears on an existing village green (which might not actually need to be green at all), or will be relying on a sympathetic landowner to allow access.

Conclusion

Each legal system may have different insights to bring to this new legal situation. Of particular interest to the liberally minded are the Norwegian friluftsliv, which translates as the ‘open air life’, and the Swedish allemansrätten and Finnish jokamiehenoikeus, which translate as ‘every man’s right’. For those in favour of a stricter approach, that mindset seems to be evident in many states in the USA. Wherever you are, there will be some considerations for landowners and access takers to work through: putting up a sign berating all things Pokémon is all well and good, but will it be enforceable?

STAY OUT OF MY YARD
Image credit: @davidharvey

Of course, there are other legal issues that might need to be considered. There might be a new issue for the future: should there be a remedy for a landowner against the person who projects augmented reality apparatus onto her land? This would not quite be analogous with a traditional nuisance by a neighbouring landowner or the situation of a photo or political slogan being projected onto a landmark. Alternatively, might there be some kind of negligence if people are lured to an unsuitable location?

Those challenges are for another day. All in all, it might be an idea to embrace the technology and make the best of it. That is what my own university seems to be doing, after all.

Although the allegedly grown-up Malcolm Combe is a lecturer in the School of Law, he remembers fondly the carefree days when he would come home from school to watch a TV double-header of Pokémon then cult Channel 4 quiz show ‘Countdown’. He also went to see ‘Pokémon: the First Movie’ in the cinema with his wee sister. He is delighted to find his latent knowledge of things like Team Rocket and Charmanders are once again relevant, and even more delighted to have combined that with some legal analysis.

UPDATE: A Drowzee and a Caterpie have been sighted in the Law School office. Staff are understandably concerned.