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The Pursuer/Appellant sought Declarator that he was a tenant at will of a hut at Downs of Barry by Carnoustie and that he had the right to occupy the land on which the hut was erected “as established by custom and usage”. A Debate had taken place in relation to the Defenders/Respondents’ preliminary pleas. The Defenders had argued that the Sheriff Court did not have jurisdiction to declare the existence of a tenancy at will and also questioned the relevancy of the Pursuer’s pleadings. Following the Debate, the Sheriff had upheld both preliminary pleas and dismissed the action. The Pursuer had appealed. The Respondents had argued that the action should be dismissed on the basis that the Lands Tribunal had exclusive jurisdiction to determine the question of whether the Pursuer was a tenant at will.They had also argued that, in any event, the Pursuer’s pleadings were irrelevant to support the existence of a tenancy at will. There was lack of specification in relation to custom and usage. The Pursuer had also averred that the annual ground rent had varied over time, whereas a tenancy at will required a ground rent that was fixed. The Sheriff had held that the proper interpretation of Sections 20 and 21 (1) of the Land Registration (Sc) Act 1979 meant that an application to the Lands Tribunal was the only means by which a person could establish a right as a tenant at will. He had also taken the view that there was inadequate specification of “custom and usage” and that the Pursuer’s position in relation to rent was impossible to reconcile with the requirement that the ground rent should not vary. At appeal, the Pursuer argued that it was clear that the jurisdiction conferred in the 1979 Act was confined to a situation in which a tenant at will sought to acquire his landlord’s interest in the land that was subject to the tenancy. The Sheriff Principal agreed and allowed the appeal in respect of that element of the Sheriff’s interlocutor. As regards the relevancy of the Pursuer’s pleadings, the Pursuer argued that the Sheriff had gone too far in dismissing the action and that he was at least entitled to a Proof Before Answer. He referred to a number of averments describing the nature of the holding and argued that these pointed to a tenancy at will. He argued that there was no rule of law that the ground rent of a tenancy at will required to be a fixed sum. The Defenders referred to the decision in Allan v McTaggart 2007 SC 482 as providing authorative guidance on the elements necessary to constitute a tenancy at will. It was simply not enough to make reference to “custom and usage” without further specification. The Sheriff Principal agreed that the decision in Allan v McTaggart provided authoritative guidance and he was satisfied that the pleadings in the present case did not provide the necessary specification of custom and usage. The Sheriff’s decision on this point had been well founded and the appeal was refused.

Noise abatement notices are governed by Part 3, Environmental Protection Act 1990 (as amended). They are not ‘pure’ housing law but they are frequently used in a housing context, particularly when dealing with noise-related complaints of anti-social behaviour.
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