Agricultural Holdings (Scotland) Act 1991

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• (1) A lease of an agricultural holding may be assigned by the tenant to any one of the persons mentioned in subsection (1A) if, following notice under subsection (2), the landlord consents to a proposed assignation.

• (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.

• (2) The tenant must give the landlord a notice in writing of any intention of the tenant to assign the lease; and the notice must include the particulars of the proposed assignee, the terms upon which the assignation is to be made and the date on which it is to take effect.

• (3) Subject to subsection (3A), the landlord may withhold consent to the proposed assignation if there are reasonable grounds for doing so; and, in particular the landlord may withhold consent if not satisfied that the proposed assignee—

• (a) would have the ability to pay—

• (i) the rent due under the lease; or

• (ii) for adequate maintenance of the land; or

• (b) has the skills or experience that would be required properly to manage and maintain the land in accordance with the rules of good husbandry.

• (3A) Where the tenant proposes to assign the lease to a person who is a near relative of the tenant, the only grounds on which the landlord can withhold consent to the proposed assignation are the following—

• (a) that the person is not of good character,

• (b) that the person does not have sufficient resources to enable the person to farm the holding with reasonable efficiency,

• (c) subject to subsection (3B), that the person has neither sufficient training in agriculture nor sufficient experience in the farming of land to enable the person to farm the holding with reasonable efficiency.

• (3B) The ground of objection in subsection (3A)(c) does not apply where the person—

• (a) is engaged in or will begin, before the expiry of the period of 6 months beginning with the date of the notice under subsection (2), a course of relevant training in agriculture which the person is expected to complete satisfactorily within 4 years from that date, and

• (b) has made arrangements to secure that the holding is farmed with reasonable efficiency until the person completes that course.

• (4) Any such withholding of consent (and the grounds for withholding it) is to be intimated in writing to the tenant within 30 days of the giving of the notice under subsection (2); and, if no such intimation is made, the landlord is deemed to have consented to the proposed assignation.

• (5) Any term of a lease or of an agreement between the landlord and tenant which purports to provide that the lease of an agricultural holding may not be assigned under this section shall, in so far as it so purports, be null and void.

• (6) In this section and in sections 12A and 12B, “near relative”, in relation to a tenant of an agricultural holding, means—

• (a) a parent of the tenant,

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

• (c) a child of the tenant,

• (d) a spouse or civil partner of such a child,

• (e) a grandchild of the tenant,

• (f) a brother or sister of the tenant,

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

• (h) a child of a brother or sister of the tenant,

• (i) a grandchild of a brother or sister of the tenant,

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

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

• (l) a child of such a brother or sister,

• (m) a grandchild of such a brother or sister.

Tenant’s right to withhold rent

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• (1) Subsection (2) below shall apply to an order—

• (a) made under subsection (1)(b) of section 84 of the Agricultural Holdings (Scotland) Act 2003 (asp 11); and

• (b) which is in relation to a failure of the landlord of an agricultural holding to fulfil any obligation he has towards the tenant in respect of fixed equipment.

• (2) Where the landlord has failed—

• (a) in a material regard; and

• (b) as at the date specified under subsection (2) of that section,

to comply with an order to which this subsection applies, the tenant may apply to the Land Court for an order under subsection (3) below.

• (3) An order under this subsection may (either or both)—

• (a) authorise the tenant to carry out such work as the landlord would have to have carried out for the landlord to comply with the order to which subsection (2) above applies; and

• (b) authorise the tenant to withhold payment of the rent payable to the landlord in respect of the holding on the condition that the tenant shall consign to the Land Court the amount otherwise so payable.

• (4) The Land Court may, on the application of the tenant, from time to time release to the tenant any of the amount so consigned towards or in satisfaction of any reasonable costs incurred or to be incurred by the tenant for the purposes of or in connection with the carrying out of such work as is mentioned in paragraph (a) of subsection (3) above.

• (5) The Land Court, on the application of the landlord and having regard to—

• (a) whether any work mentioned in paragraph (a) of subsection (3) above remains to be carried out; and

• (b) any costs mentioned in subsection (4) above,

may terminate the order made under subsection (3) above if the Court consider that it would be not be appropriate for the order to remain in force.

• (6) Where the Land Court terminate the order made under subsection (3) above, the Court shall order such division between the landlord and tenant of the amount (or, where any of the amount has been released to the tenant, any remaining amount) consigned under subsection (3)(b) above as the Court consider to be equitable.

• (7) Any work carried out and authorised under subsection (3)(a) above shall be treated as having been carried out at the landlord’s expense in so far as the costs of the work have been or are to be satisfied by the release to the tenant of any amount consigned under subsection (3)(b) above.

• (8) Any right of the landlord—

• (a) to irritate the lease on the grounds of non-payment of rent; or

• (b) under section 20 or 22 of this Act in relation to non-payment of rent,

shall be unenforceable if the non-payment is in consequence of an authorisation under subsection (3)(b) above to withhold rent.

• (9) Any term of the lease or of any agreement between the landlord and tenant that purports to deprive the tenant of any right conferred by virtue of this section shall, in so far as it so purports, be null and void.

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• (1) The lease of an agricultural holding shall not be brought to an end, and accordingly the landlord shall not be entitled to bring proceedings to terminate the lease or to treat it as at an end, by reason only that the tenant is not or has not been resident on the agricultural holding.

• (2) Where there is a term in a lease of an agricultural holding which purports to require the tenant to reside on the holding, there shall, in place of that term, be deemed to be incorporated in the lease an undertaking by the tenant that he will, if he does not reside on the holding, ensure that a person who has the skills and experience necessary to farm the holding in accordance with the rules of good husbandry resides on the holding.

Consents for purposes of section 22.

Certificates of bad husbandry.

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• (1) Subsection (2) below applies where the tenancy of part of an agricultural holding has been terminated by reason of a notice to quit which is rendered valid by virtue of subsections (1)(b) and (2)(f) of section 29 of this Act.

• (2) Where—

• (a) this subsection applies; and

• (b) the land which formed that part has subsequently been made suitable for, and is available for, agricultural use,

that land shall, if the conditions in subsection (3) below are fulfilled, be restored to the holding.

• (3) The conditions are that—

• (a) the tenancy of the holding continues in force with the same landlord and tenant under the lease; and

• (b) any compensation paid to the tenant in consequence of the termination was calculated on the basis that the holding would be restored under this section.

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Where the tenant has carried out an improvement—

• (a) specified in Part II or III of Schedule 5 to this Act; and

• (b) by executing work which the landlord was required, at the time the lease was entered into and by virtue of section 5(2)(a) of this Act, to execute in order to fulfil his obligations under the lease,

any term of the lease or of an agreement between the landlord and tenant made before the coming into force of this section which purports to provide that the amount of compensation payable to the tenant for the improvement is less than the amount of compensation to which the tenant is entitled under this Part of this Act for the improvement (or that no compensation is payable) shall not apply in relation to such part or proportion of the improvement as the landlord would have been so required to carry out in order to fulfil those obligations.

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• (1) Subject to subsection (2) below, the landlord of an agricultural holding shall be entitled to recover from the tenant, on his quitting the holding on termination of the tenancy, compensation where the landlord shows that the value of the holding has been reduced during the tenancy by the use, on or after the coming into force of this section, of the holding for a purpose which is not an agricultural purpose; and the amount of compensation payable shall be an amount equal to the reduction in the value of the holding.

• (2) Where there are trees on the holding which were planted—

• (a) by the tenant on or after the coming into force of this section; and

• (b) for future cropping,

the landlord or tenant shall be entitled to recover from the other, on the tenant quitting the holding on the termination of the tenancy, compensation calculated in accordance with subsections (3) and (4) below.

• (3) For the purposes of subsection (2) above, at the termination of the tenancy—

• (a) the trees shall be valued on the basis of their worth to a willing purchaser for future cropping; and

• (b) there shall be evaluated any loss of rent to the landlord which would be incurred by his retaining the trees until the likely date of cropping added to the cost to him of returning the land to agricultural use after cropping.

• (4) If the value reached under paragraph (a) of subsection (3) above is—

• (a) greater than that reached under paragraph (b) of that subsection, the tenant shall be entitled to the difference between the values as compensation;

• (b) less than that reached under paragraph (b) of that subsection, the landlord shall be entitled to the difference between the values as compensation.

• (5) Where the value of an agricultural holding has been increased during the tenancy by such use of the land or part of the land, or such change to the land, for a purpose that is not an agricultural purpose—

• (a) as occurred on or after the coming into force of this section; and

• (b) as had been permitted under section 40 or 41 of the Agricultural Holdings (Scotland) Act 2003 (asp 11),

the tenant shall, subject to subsections (6) and (7) below, be entitled, on quitting the holding on termination of the tenancy, to recover from the landlord such compensation as fairly represents the value of the use, change or carrying out of the activities to an incoming tenant.

• (6) In ascertaining the amount of compensation payable under subsection (5) above—

• (a) there shall be taken into account any benefit which the landlord has agreed in writing to give the tenant in consideration of the matters referred to in that subsection; and

• (b) where a grant has been or will be made to the tenant in respect of those matters, subject to the conditions of the grant—

• (i) if either the landlord or tenant has not made or will not make a contribution towards the cost of the improvement, or neither of them has made or will make such a contribution, the grant shall not be taken into account;

• (ii) in any other case, there shall be taken into account such proportion of the grant as equals the proportion of the contribution by the tenant towards the cost of the improvement as a proportion of the total of his contribution added to that of the landlord.

• (7) No compensation is payable under subsection (5) above if, owing to—

• (a) any of the matters referred to in that subsection, the land is unsuitable for use for agriculture by an incoming tenant; or

• (b) any use of fixed equipment in connection with any of those matters, the landlord would, at the commencement of an incoming tenant’s tenancy, be unable to fulfil his obligations under the lease as to fixed equipment,

in so far as those matters or, as the case may be, that use is attributable to those facts.

• (8) Where the tenant has remained in occupation of the holding during two or more tenancies, he shall not be deprived of his right to compensation under this section by reason only that the use of the land or change to the land did not occur during the tenancy on the termination of which he quits the holding.

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