Alloa sheriff grants decree de plano to son seeking removal of parents from residential property

About this case:

• Citation:
  [2026] SC ALL 53
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Charles Lugton

Derrick Taylor Jr sought the removal of Derrick Taylor Sr and Lesley Taylor on the basis that they had no right or title to stay in the property. The defenders asserted that the effect of a promise made to them by their son when they moved into the property, which they had renovated with their own money, was to create an improper liferent in their favour.

The case was heard by Sheriff Charles Lugton at Alloa Sheriff Court, with Tosh, advocate, appearing for the pursuer and the defenders representing themselves.

Scandalous averments

It was averred by the defenders that they took possession of the keys to the property in June 2020 before moving in that September. They further averred that the pursuer promised them that they could reside in the property without limit of time, and they had spent a substantial amount of money renovating the property, which was initially in a dilapidated state, with the pursuer’s knowledge and agreement.

Relations between the parties degraded as a result of what the defenders alleged was mismanagement of a partnership set up with the parties and the pursuer’s other siblings to manage and expand on the defenders’ property portfolio, including the pursuer transferring the title to various properties to his name without the defenders’ knowledge and agreement. The timing of the service of notice to quit the property was said to coincide with the pursuer’s discovery that the defenders were seeking legal advice in relation to this dispute.

Counsel for the pursuer submitted that the defenders’ averments were silent on the actual wording that was used to create the averred liferent and amounted to no more than bare assertions. While the averments regarding the Taylor family partnership were scandalous, they were irrelevant as there was no suggestion that the pursuer did not own the property which was the subject of the present action. Without specifying the actual words that were used, no relevant defence could be stated to the action.

The defenders disputed the validity of the notice served on them, with the first defender stating that his daughter told him that it had been signed for by a man claiming to be the first defender and, when he subsequently changed the locks to the property, his landlord had written to him to complain about this. In reply, the pursuer noted that there was no requirement to serve notice in the present case, as the property was not occupied under a private residential tenancy.

Harsh truth

In his decision, Sheriff Lugton said of the constitution of a promise outside the course of a business: “Clear language is essential because it is with his words that the promisor binds himself. And critically, the corollary of this is that the words that are said to have been used must be placed before the court to enable an assessment to be made of whether they are sufficiently clear and unambiguous to constitute a binding obligation. It follows that a party seeking to relevantly plead a case based on promise must, as a starting point, aver the actual words that are said to constitute the promise. This requirement pertains whether the promise is said to have been written or – as in this case – made orally.”

On improper liferent as a form of trust, he added: “No special form of words must be invoked to create a trust. But it is implicit to the reasoning that whatever words are used, they must convey the intention of the truster to create a trust. In my opinion, it follows that a party offering to prove the existence of a trust must aver the specific words that are alleged to have been used by the putative truster to constitute the trust. This is because, self-evidently, the court must have sight of those words to determine whether they convey the intention to create a trust.”

Considering whether the defenders had done enough to plead a relevant defence, Sheriff Lugton said: “Their averment that ‘the pursuer promised the defenders that they could both reside at the property without limit of time’ has the flavour of a summary of or a gloss upon a conversation: it is an assertion of the existence of a promise rather than an averment of its actual terms. Critically, the defenders do not aver what the pursuer is alleged to have said. As there are no averments of his words, the court cannot begin to evaluate whether the pursuer bound himself in a promissory obligation in clear and unambiguous terms.”

He concluded: “The defenders’ averments of the background to the action are troubling, both because they contain serious allegations regarding the pursuer’s conduct and because of the deep rift between a son and his parents which they reveal. But the harsh truth is that these are, as counsel submitted, collateral matters which have no direct bearing on the subject of the present action, and they do not afford the defenders a relevant defence.”

Decree de plano in terms of the pursuer’s first crave was therefore granted.