Sheriff Appeal Court upholds validity of executor’s notice to quit, affirming ratification by confirmation

About this case:

• Citation:
  [2026] SAC (Civ) 50
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Gillian A Wade KC

The appellant was served with a notice to quit a room he had leased in a Crail hotel a few months after the death of the hotel’s owner in 2024. After the appellant’s arguments that the notice was invalid on account of the owner’s executor remaining unconfirmed at the time of service were rejected, his case came before the Sheriff Appeal Court.

The appeal was heard by Sheriff Principal Gillian Wade KC, with the appellant appearing in person and Anderson, advocate, appearing for the respondent.

Retrospective validation

In July 2024, the appellant took a lease of a room at the Marine Hotel in Crail for a period of a year. The hotel’s proprietor, Morgan Chalmers, died shortly thereafter. In December 2024, Mr Chalmers’ unconfirmed executor-nominate, the respondent, gave orders to sheriff officers to serve a notice to quit on the appellant. Only five months later, however, was the respondent confirmed as Mr Chalmers’ executor.

After the appellant refused to move out, the respondent raised a summary cause action to recover possession of the subjects. Legal argument on agreed facts proceeded in December 2025 and resulted in the sheriff granting decree for the respondent. Although the respondent had no formal title to the hotel when the notice to quit was served, that defect was, in effect, ‘cured’ by the subsequent grant of confirmation, which operated retrospectively to validate the notice.

On appeal to the Sheriff Appeal Court, the appellant advanced several submissions in support of his position that the sheriff had been wrong to grant decree. Authorities cited in the sheriff’s decision, including Bentley v Macfarlane (1964), did not support the extension of the retrospective validation principle beyond existing limits. Previous cases had concerned situations involving “imperfect” titles or simple administrative defects; there was no case to date, the appellant submitted, that provided support for the ability of an unconfirmed executor to perform acts that affected substantive possessory rights.

In policy terms, the appellant argued, affirming too capacious a view of retrospective validation would create uncertainty in common-law tenancies, for the validity of a notice to quit could not be determined at the time of service but would instead be contingent on the subsequent grant of confirmation. Since the respondent’s purported notice to quit was invalid, the appellant submitted, his tenancy of the room had continued beyond July 2025 by way of tacit relocation. The sheriff was wrong, therefore, to grant decree for recovery of possession.

No authority for appellant’s propositions

Sheriff Principal Gillian Wade KC began her decision by noting that: “[A]lthough there is authority in relation to the effect of confirmation on antecedent acts of an unconfirmed executor neither party was able to bring to the court’s attention any authority directly in point in relation to the service of a notice to quit. The question as to whether subsequent confirmation of an executor retrospectively validates service of a notice to quit by an unconfirmed executor requires to be answered by analogy.”

Noting the power to remove tenants conferred on executors-nominate qua trustees under section 4 of the Trusts (Scotland) Act 1921, she continued: “Confirmation operates to vest the title to the deceased’s estate in the executor for the purposes of its administration and disposal thereof. The effect of confirmation on acts of the executor prior to confirmation is expressly dealt with in Currie on Confirmation of Executors (9th Edition) at 14.03: ‘…confirmation granted subsequently will validate the purported dealing or transfer retrospectively’ … There is therefore no doubt that it is long established that actings of an executor before confirmation are retrospectively vindicated thereafter on the basis that the executor has an underlying good title which is simply ratified by the granting of confirmation.”

She added: “In my opinion, standing th[e] authority [of Garvie’s Trs v Garvie’s Tutors (1975)], which is binding on this court, a notice to quit, which had the effect of intimating to the appellant that formal steps were in train to terminate his lease is a good notice proceeding as it did on an underlying sound title and is capable of retrospective validation by the subsequent grant of confirmation … There was no contrary authority cited to support the proposition advanced by the appellant that only administrative acts could be retrospectively validated and for those reasons it is my opinion that the sheriff was correct in both his reasoning and his conclusions.”

Turning to evaluate the appellant’s arguments regarding tacit relocation, Sheriff Principal Wade reasoned: “[T]he arguments which the appellant sought to advance and which he maintained constituted a stateable defence to the action are fundamentally flawed. He suggests that tacit relocation had operated to renew the lease on the same terms and conditions for a further year because he had served notice on the respondent to that effect on 29 June 2025. The operation of tacit relocation is dependent on a failure of the parties to give notice of termination and silence or at least a lack of agreement as to the position at ish. In this case there was a valid notice to quit. That is the generally accepted means by which notice is given. Even if the notice had been flawed in some way, which it was not, it was clear in its terms and would have been sufficient to exclude the operation of tacit relocation following Rockford Trilogy Ltd v NCR Ltd (2022).”

The appeal was accordingly refused.