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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