Agricultural Holdings (Scotland) Act 1991

Part I — Agricultural Holdings

Meaning of “agricultural holding” and “agricultural land”

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• (1) In this Act (except sections 68 to 72) “agricultural holding” means the aggregate of the agricultural land comprised in a lease, not being a lease under which the land is let to the tenant during his continuance in any office, appointment or employment held under the landlord.

• (2) In this section and in section 2 of this Act, “agricultural land” means land used for agriculture for the purposes of a trade or business, and includes any other land which, by virtue of a designation of the Secretary of State under section 86(1) of the Agriculture (Scotland) Act 1948, is agricultural land within the meaning of that Act.

Leases for less than year to year

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Leases to be continued by tacit relocation

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Notwithstanding any agreement or any provision in the lease to the contrary, the tenancy of an agricultural holding shall not come to an end on the termination of the stipulated endurance of the lease, but shall be continued in force by tacit relocation for another year and thereafter from year to year, unless notice to quit has been given by the landlord or notice of intention to quit has been given by the tenant.

Part II — Terms of Leases and Variations Thereof

Written leases and the revision of certain leases

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• (1) Where in respect of the tenancy of an agricultural holding—

• (a) there is not in force a lease in writing; or

• (b) there is in force a lease in writing, being either—

• (i) a lease entered into on or after 1st November 1948, or

• (ii) a lease entered into before that date, the stipulated period of which has expired and which is being continued in force by tacit relocation,

but such lease contains no provision for one or more of the matters specified in Schedule 1 to this Act or contains a provision inconsistent with that Schedule or with section 5 of this Act,

either party may give notice in writing to the other requesting him to enter into a lease in writing containing, as the case may be, provision for all of the matters specified in Schedule 1 to this Act, or a provision which is consistent with that Schedule or with section 5 of this Act; and if within the period of 6 months after the giving of such notice no such lease has been concluded, the terms of the tenancy shall be referred to the Land Court.

• (2) On a reference under subsection (1) above, the Land Court shall in its determination specify the terms of the existing tenancy and, in so far as those terms do not make provision for all the matters specified in Schedule 1 to this Act or make provision inconsistent with that Schedule or with section 5 of this Act, make such provision for those matters as appears to the Land Court to be reasonable.

• (3) On a reference under subsection (1) above, the Land Court may include in its determination any further provisions relating to the tenancy which may be agreed between the landlord and the tenant, and which are not inconsistent with this Act.

• (4) The determination of the Land Court under this section or section 5 of this Act shall have effect as if the terms and provisions specified and made therein were contained in an agreement in writing between the landlord and the tenant, having effect as from the making of the determination or from such later date as the determination may specify.

Fixed equipment and insurance premiums

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• (1) When a lease of an agricultural holding to which this section applies is entered into, a record of the condition of the fixed equipment on the holding shall be made forthwith, and on being so made shall be deemed to form part of the lease; and section 8 of this Act shall apply to the making of such a record and to the cost thereof as it applies to a record made under that section.

• (2) There shall be deemed to be incorporated in every lease of an agricultural holding to which this section applies—

• (a) an undertaking by the landlord that, at the commencement of the tenancy or as soon as is reasonably practicable thereafter, he will put the fixed equipment on the holding into a thorough state of repair, and will provide such buildings and other fixed equipment as will enable an occupier reasonably skilled in husbandry to maintain efficient production as respects both—

• (i) the kind of produce specified in the lease, or (failing such specification) in use to be produced on the holding, and

• (ii) the quality and quantity thereof,

and that he will during the tenancy effect such replacement or renewal of the buildings or other fixed equipment as may be rendered necessary by natural decay or by fair wear and tear; and

• (b) a provision that the liability of the tenant in relation to the maintenance of fixed equipment shall extend only to a liability to maintain the fixed equipment on the holding in as good a state of repair (natural decay and fair wear and tear excepted) as it was in—

• (i) immediately after it was put in repair as aforesaid, or

• (ii) in the case of equipment provided, improved, replaced or renewed during the tenancy, immediately after it was so provided, improved, replaced or renewed.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) Any provision in a lease to which this section applies requiring the tenant to pay the whole or any part of the premium due under a fire insurance policy over any fixed equipment on the holding shall be null and void.

• (4A) Any agreement between the landlord and tenant made before the coming into force of this subsection which purports to provide for the tenant to execute on behalf of the landlord (whether wholly at his expense or wholly or partly at the expense of the landlord) any work effecting such replacement or renewal of the building or other fixed equipment on the holding as is rendered necessary by natural decay or by fair wear and tear shall be nullified provided that subsection (4B) below is complied with.

• (4B) This subsection is complied with if—

• (a) subject to subsection (4BA), no later than 6 months before the date from which any variation of rent will take effect, the tenant gave written notice to the landlord stating that the agreement is to be nullified on that date;

• (b) the rent is reviewed in accordance with the terms of the tenancy or is determined by the Land Court in accordance with section 13 of this Act; and

• (c) on the date referred to in paragraph (a)—

• (i) the buildings and other fixed equipment are in a reasonable state of repair; or

• (ii) if the buildings and other fixed equipment were in an unreasonable state of repair when the agreement was made, they are not in a worse state of repair than they were then.

• (4BA) Where a rent review is initiated less than 6 months before any variation of rent would take effect, subsection (4B)(a) is complied with if notice is given when it is initiated, or as soon as reasonably practicable thereafter.

• (4C) Any agreement between the landlord and tenant made before the coming into force of this subsection which purports to provide for the tenant to bear any expense of any work effecting such replacement or renewal of the building or other fixed equipment on the holding as is rendered necessary by natural decay or by fair wear and tear shall be subject to subsections (4A) and (4B) above.

• (4D) Any agreement between the landlord and tenant made on or after this subsection comes into force which purports to provide for the tenant to bear any expense of any work which the landlord is required to execute in order to fulfil his obligations under the lease shall be null and void.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) This section applies to any lease of an agricultural holding entered into on or after 1st November 1948.

Sums recovered under fire insurance policy

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Where the tenant of an agricultural holding is responsible for payment of the whole or part of the premium due under a fire insurance policy in the name of the landlord over any buildings or other subjects included in the lease of the holding and the landlord recovers any sum under such policy in respect of the destruction of, or damage to, the buildings or other subjects by fire, the landlord shall be bound, unless the tenant otherwise agrees, to expend such sum on the rebuilding, repair, or restoration of the buildings or subjects so destroyed or damaged in such manner as may be agreed or, failing agreement, as may be determined by the Secretary of State.

Freedom of cropping and disposal of produce

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• (1) Subject to subsections (2) and (5) below, the tenant of an agricultural holding shall, notwithstanding any custom of the country or the provisions of any lease or of any agreement respecting the disposal of crops or the method of cropping of arable lands, have full right, without incurring any penalty, forfeiture or liability,—

• (a) to dispose of the produce of the holding, other than manure produced thereon;

• (b) to practise any system of cropping of the arable land on the holding.

• (2) Subsection (1) above shall not have effect unless, before exercising his rights thereunder or as soon as is practicable after exercising them, the tenant makes suitable and adequate provision—

• (a) in the case of an exercise of the right to dispose of crops, to return to the holding the full equivalent manurial value to the holding of all crops sold off or removed from the holding in contravention of any such custom, lease or agreement; and

• (b) in the case of an exercise of the right to practise any system of cropping, to protect the holding from injury or deterioration.

• (3) If the tenant of an agricultural holding exercises his rights under subsection (1) above so as to injure or deteriorate, or to be likely to injure or deteriorate, the holding, the landlord shall have the following remedies...—

• (a) should the case so require, he shall be entitled to obtain an interdict restraining the exercise of the tenant’s rights under that subsection in that manner;

• (b) in any case, on the tenant quitting the holding on the termination of the tenancy the landlord shall be entitled to recover damages for any injury to or deterioration of the holding attributable to the exercise by the tenant of his rights under that subsection.

• (3A) Such interdict as is, or damages as are, mentioned in subsection (3) above shall be obtainable only in the Land Court; and, notwithstanding the terms of section 84 of the Agricultural Holdings (Scotland) Act 2003 (asp 11), no other remedy shall be available in respect of the circumstances mentioned in that subsection.

• (4) For the purposes of any proceedings for an interdict brought under paragraph (a) of subsection (3) above, where the question whether the tenant is exercising or has exercised his rights under subsection (1) above in such a manner as is referred to in subsection (3) above has, by virtue of section 61(1) of this Act, been determined by arbitration, a certificate of the arbiter as to his determination of the question shall, for the purposes of any proceedings brought under this section, be conclusive proof of the facts stated in the certificate.

• (5) Subsection (1) above shall not apply—

• (a) in the case of a tenancy from year to year, as respects the year before the tenant quits the holding or any period after he has received notice to quit or given notice of intention to quit which results in his quitting the holding; or

• (b) in any other case, as respects the year before the expiry of the lease.

• (6)

• (a) In this section “arable land” does not include land in grass which, by the terms of a lease, is to be retained in the same condition throughout the tenancy;

• (b) the reference in paragraph (a) above to the terms of a lease shall, where the Secretary of State has directed under section 9 of the 1949 Act or an arbiter has directed under that section or it has been determined under section 9 of this Act that the lease shall have effect subject to modifications, be construed as a reference to the terms of the lease as so modified.

Record of condition, etc., of holding

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• (1) The landlord or the tenant of an agricultural holding may, at any time during the tenancy, require the making of a record of the condition of the fixed equipment on, and of the cultivation of, the holding.

• (2) The tenant may, at any time during the tenancy, require the making of a record of—

• (a) existing improvements carried out by him or in respect of the carrying out of which he has, with the consent in writing of his landlord, paid compensation to an outgoing tenant;

• (b) any fixtures or buildings which, under section 18 of this Act, he is entitled to remove.

• (3) A record under this section shall be made by a person to be appointed by agreement between the parties; but, in the absence of such agreement, the Scottish Ministers shall on the application of either party appoint a person to make the record.

• (3A) The Scottish Ministers may charge such reasonable fee as they may determine for making an appointment under subsection (3) above.

• (3B) The record shall be in such form as the parties agree or, in the absence of such agreement, as the recorder considers appropriate.

• (4) A record made under this section shall show any consideration or allowances which have been given by either party to the other.

• (5) Subject to section 5 of this Act, a record may, if the landlord or the tenant so requires, be made under this section relating to a part only of the holding or to the fixed equipment only.

• (6) Any question or difference between the landlord and the tenant arising out of the making of a record under this section shall... be referred to the Land Court for determination by them.

• (7) The cost of making a record under this section shall, in default of agreement between the landlord and the tenant, be borne by them in equal shares.

• (8) The remuneration of any person appointed by the Secretary of State to make a record under this section shall be such amount as the Secretary of State may fix, and any other expenses of and incidental to the making of the record shall be subject to taxation by the auditor of the sheriff court, and that taxation shall be subject to review by the sheriff.

• (9) The remuneration of any person appointed by the Secretary of State to make a record under this section shall be recoverable by that person from either the landlord or the tenant, but any amount paid by either of those parties in respect of—

• (a) that remuneration, or

• (b) any other expenses of and incidental to the making of the record,

in excess of the share payable by him under subsection (7) above of the cost of making the record, shall be recoverable by him from the other party.

Arbitration as to permanent pasture

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• (1) Where under the lease of an agricultural holding, whether entered into before or after the commencement of this Act, provision is made for the maintenance of specified land, or a specified proportion of the holding, as permanent pasture, the Land Court may determine the holding that the amount of land required to be maintained as permanent pasture should be reduced.

• (2) The Land Court may in its determination direct that the lease shall have effect subject to such modifications of its provisions as to land which is to be maintained as permanent pasture or is to be treated as arable land, and as to cropping, as may be specified in the direction.

• (3) If the Land Court gives a direction under subsection (2) above reducing the area of land which is to be maintained as permanent pasture, it may also direct that the lease shall have effect as if it provided that on quitting the holding on the termination of the tenancy the tenant should leave—

• (a) as permanent pasture, or

• (b) as temporary pasture sown with seeds mixture of such kind as may be specified in that direction,

(in addition to the area of land required by the lease, as modified by the direction, to be maintained as permanent pasture) a specified area of land not exceeding the area by which the land required to be maintained as permanent pasture has been reduced by the direction under subsection (2) above.

Power of landlord to enter on holding

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The landlord of an agricultural holding or any person authorised by him may at all reasonable times enter on the holding for any of the following purposes—

• (a) viewing the state of the holding;

• (b) fulfilling the landlord’s responsibilities to manage the holding in accordance with the rules of good estate management;

• (c) providing, improving, replacing or renewing fixed equipment on the holding otherwise than in fulfilment of such responsibilities.

Bequest of lease

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• (1) Subject to subsections (2) and (3) and to sections 12A to 12C , the tenant of an agricultural holding may, by will or other testamentary writing, bequeath his lease of the holding to any one of the persons mentioned in subsection (1A) .

• (1A) The persons referred to in subsection (1) are—

• (a) any person who would be, or would in any circumstances have been, entitled to succeed to the tenant's estate on intestacy by virtue of the Succession (Scotland) Act 1964,

• (b) a spouse or civil partner of a child of the tenant,

• (c) a spouse or civil partner of a grandchild of the tenant,

• (d) a spouse or civil partner of a brother or sister of the tenant,

• (e) a brother or sister of the tenant's spouse or civil partner,

• (f) a spouse or civil partner of such a brother or sister,

• (g) a child (including a step-child) of such a brother or sister,

• (h) a grandchild (including a step-grandchild) of such a brother or sister,

• (i) a step-child of the tenant,

• (j) a spouse or civil partner of such a step-child,

• (k) a descendant of such a step-child,

• (l) a step-brother or step-sister of the tenant,

• (m) a spouse or civil partner of such a step-brother or step-sister,

• (n) a descendant of such a step-brother or step-sister.