The Trustees of Niall Calthorpe's 1959 Discretionary Settlement v George Hamilton

25 August 2010

This was a rent review application relating to an agricultural holding.  However, the tenant raised a number of preliminary issues. The tenant led at the proof to deal with those issues.

The principal issue was whether the holding was owned by two landlords and not one.  Only one of the landlords had presented the application to the court.  A rent review application had to be made by all the landlords.  The other possible landlord was a limited company controlled by the tenant and his family.  That company held a land certificate for an area of ground extending to about 70 acres in the middle of the farm in question.  The landlord's response was to say that the  area had never been part of the holding or was taken out of the holding at some point long ago. The main thrust of the proof was to hear evidence as to the extent of the holding.  Was the disputed area part of the holding as the tenant contended?  The Land Court, after hearing evidence and submissions over four days, reviewed the evidence at length and concluded that the disputed land had always been part of the tenancy, which dated from 1934. 

An argument that the land had been resumed was not accepted.  One curiosity about the proof was that there was documentary evidence from each party's agricultural surveyor indicating that the surveyors had negotiated rent reviews over a number of years on an acreage some 86 acres less than size of the holding according to the tenant's calculations.  The Court thought that difference was largely attributable to the disputed area of ground.  However, the Court was not persuaded that this puzzling evidence meant that the disputed land had been taken out of the tenancy.  It did not outweigh the tenant's evidence or a number of other adminicles of evidence supporting it.

The application was sisted to enable questions of heritable title and rectification of the Land Register, upon which the Land Court was addressed, to be pursued elsewhere by the landlord if so advised.

The decision in this case will, in due, course, be available on the Scottish Land Court's website (http://www.scottish-land-court.org.uk)

J. Gordon Reid Q.C., F.C.I.Arb. of Axiom appeared on behalf of the tenant.