McGrath & Anor v Nelson [2010] ScotCS CSOH_149 (12 November 2010)

McGrath & Anor v Nelson [2010] ScotCS CSOH_149 (12 November 2010)

A valid transfer of a deceased croft tenant's interest requires both a transfer by confirmed executors and intimation to the landlord. Intimation alone is insufficient. If confirmation is not obtained within one year of death, any purported transfer is invalid and the landlord's right to terminate arises. Subsequent confirmation after one year cannot cure the defect, even if no notice of termination has yet been served.

Citation
[2010] ScotCS CSOH_149
Parties
Pursuers: Marie Marion McGrath and another; Defender: Thomas Lorne Nelson
Jurisdiction
Scotland
Judgment Date
12 November 2010
Procedural Posture
Civil / Outer House, Court of Session – Opinion on Relevancy and Dismissal
Outcome
Action dismissed
Legal Topics
Intestate Succession, Transfer of Tenancy, Confirmation of Executors, Termination of Lease, Crofters (scotland) Act 1993, Succession (scotland) Act 1964
Succession Law Landlord and Tenant Law Crofters Law Intestate Succession Transfer of Tenancy Confirmation of Executors Termination of Lease Crofters (scotland) Act 1993 +1 more

Case Brief

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Parties

Marie Marion McGrath and another

Pursuers

Thomas Lorne Nelson

Defender

Procedural Posture

Civil / Outer House, Court of Session – Opinion on Relevancy and Dismissal

Legal Issues

  1. 1 Whether the pursuers, as majority executors dative, validly transferred the deceased's croft tenancy to Josephine McGrath under the relevant statutory provisions.
  2. 2 Whether written intimation to the landlord and subsequent confirmation sufficed to effect a valid transfer within the statutory period.
  3. 3 Whether subsequent confirmation can retrospectively validate a purported transfer made before confirmation, and if so, whether this must occur within one year of death.

Ratio Decidendi

A valid transfer of a deceased croft tenant's interest requires both a transfer by confirmed executors and intimation to the landlord. Intimation alone is insufficient. If confirmation is not obtained within one year of death, any purported transfer is invalid and the landlord's right to terminate arises. Subsequent confirmation after one year cannot cure the defect, even if no notice of termination has yet been served.

Court Disposition

Action dismissed

Orders

  • Sustain defender's first plea in law
  • Dismiss the action