Part 1SAgricultural tenancies

Chapter 1STypes of tenancy

Tenancies under the 1991 ActS

1Application of the 1991 Act to agricultural holdingsS

(1)This subsection applies where—

(a)a lease is entered into on or after the coming into force of this subsection; and

(b)the tenancy under the lease is a tenancy of an agricultural holding in relation to which the Agricultural Holdings (Scotland) Act 1991 (c. 55) (in this Act referred to as “the 1991 Act”) would have applied had the lease been entered into immediately before the coming into force of this subsection.

(2)Where subsection (1) applies, the 1991 Act does not apply in relation to the tenancy (except in so far as this Act applies any provision of that Act to short limited duration tenancies or limited duration tenancies) unless the lease—

(a)is entered into in writing prior to the commencement of; and

(b)expressly states that the 1991 Act is to apply in relation to,

the tenancy.

(3)Section 2 (leases for less than year to year) of the 1991 Act is repealed.

(4)Where, in respect of a tenancy of an agricultural holding—

(a)the lease is entered into before the coming into force of this subsection and the 1991 Act applies in relation to the tenancy; or

(b)the lease is entered into on or after the coming into force of this subsection and (by virtue of the conditions mentioned in paragraphs (a) and (b) of subsection (2) being fulfilled) the 1991 Act applies in relation to the tenancy,

the tenancy under the lease is in this Act referred to as a “1991 Act tenancy”.

F12Conversion from 1991 Act tenancy to limited duration tenancyS

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Annotations:

Amendments (Textual)

[F22AConversion from 1991 Act tenancy to modern limited duration tenancyS

(1)The landlord and tenant under a 1991 Act tenancy may terminate the tenancy by agreement in writing provided that—

(a)the agreement—

(i)specifies the date on which the termination is to have effect, and

(ii)is made not less than 30 days before that date, and

(b)subsection (2) is complied with.

(2)This subsection is complied with if the landlord and tenant enter into a lease constituting a modern limited duration tenancy for a term of not less than 25 years which—

(a)comprises or includes the same land as that comprised in the tenancy being terminated under subsection (1), and

(b)has effect from the date on which the termination under that subsection has effect.

(3)The landlord or tenant is entitled, at any time before the date on which the termination under subsection (1) has effect, to revoke (without penalty)—

(a)the agreement made under that subsection, and

(b)the lease mentioned in subsection (2),

by giving notice in writing to the other of the revocation.

(4)On termination of a 1991 Act tenancy under subsection (1), the tenant is entitled to—

(a)such compensation for improvements as the tenant would have been entitled to under Part 4 (compensation for improvements) of the 1991 Act (or, as the case may be, under the lease), and

(b)such compensation as the tenant would have been entitled to under section 45A (compensation arising as a result of diversification and cropping of trees) of that Act,

were the tenant quitting the holding as a result of the termination of the tenancy.

(5)Where a 1991 Act tenancy is terminated under subsection (1), section 21 (notice to quit and notice of intention to quit) of the 1991 Act does not apply in respect of the tenancy.

(6)Section 5B does not apply to a modern limited duration tenancy created under this section.]

[F32BConversion from limited duration tenancy to modern limited duration tenancyS

(1)The landlord and tenant under a limited duration tenancy may terminate the tenancy by agreement in writing provided that—

(a)the agreement—

(i)specifies the date on which the termination is to have effect, and

(ii)is made not less than 30 days before that date, and

(b)subsection (2) is complied with.

(2)This subsection is complied with if the landlord and tenant enter into a lease constituting a modern limited duration tenancy for a term of not less than the term remaining under the limited duration tenancy which—

(a)comprises or includes the same land as that comprised in the tenancy being terminated under subsection (1), and

(b)has effect from the date on which the termination under that subsection has effect.

(3)The landlord or tenant is entitled, at any time before the date on which the termination under subsection (1) has effect, to revoke (without penalty)—

(a)the agreement made under that subsection, and

(b)the lease mentioned in subsection (2),

by giving notice in writing to the other of the revocation.

(4)On termination of a limited duration tenancy under subsection (1), the tenant is not entitled to compensation for improvements under Part 4 (or, as the case may be, under the lease).

(5)But any improvements for which the tenant would have been entitled to compensation under that Part but for subsection (4) are, for the purposes of that Part, to be regarded as improvements carried out during the modern limited duration tenancy.

(6)Where a limited duration tenancy is terminated under subsection (1), section 8 does not apply in respect of the tenancy.

(7)Section 5B does not apply to a modern limited duration tenancy created under this section.]

Leases for grazing or mowingS

3Leases for grazing or mowingS

(1)This section applies to a tenancy under a lease under which agricultural land is let for the purpose of its being used only for grazing or mowing during some specified period of the year (whether or not the lease expressly so provides).

(2)The tenancy is not to be constituted for a period of more than 364 days; and where the term of the tenancy has expired, the land may not be let for the same purpose to the same tenant before one clear day from the date of expiry of the tenancy has elapsed.

New types of tenancyS

4Short limited duration tenanciesS

(1)Where—

(a)agricultural land is let under a lease for a term of not more than five years;

(b)the land comprised in the lease is not let to the tenant during the tenant’s continuance in any office, appointment or employment held under the landlord; and

(c)the lease does not constitute—

(i)a 1991 Act tenancy; or

(ii)a tenancy to which section 3 applies,

the tenancy under the lease is, by virtue of this subsection, a short limited duration tenancy.

(2)Without prejudice to subsection (1), where the tenant remains in occupation of the land after the expiry of the term of a tenancy to which section 3 applies with the consent of the landlord, the tenancy continues to have effect as if it were for a term of—

(a)5 years; or

(b)such period of less than 5 years as the landlord and tenant may agree to,

and the tenancy is, by virtue of this subsection, a short limited duration tenancy.

(3)Where the tenant remains in occupation of the land after the expiry of the term of a short limited duration tenancy of less than 5 years (including such a term fixed by virtue of subsection (2)) with the consent of the landlord, the tenancy continues to have effect as if it were for a term of—

(a)5 years; or

(b)such period of less than 5 years as the landlord and tenant may agree to.

(4)This subsection applies to a short limited duration tenancy where—

(a)the term of the tenancy has expired and the tenant has not remained in occupation of the land; or

(b)during the term of the tenancy, the landlord and tenant have terminated the tenancy by agreement.

(5)Where the landlord and tenant enter into a lease constituting a further short limited duration tenancy which—

(a)comprises the same land as that comprised in the tenancy to which subsection (4) applies; and

(b)has effect less than one year from the expiry of the term of, or termination of, that tenancy,

the expired period of the term of that tenancy counts as an expired period of the term of the further tenancy; but this is subject to subsection (3) of section 5.

F45Limited duration tenanciesS

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Annotations:

Amendments (Textual)

[F55AModern limited duration tenanciesS

(1)Where—

(a)agricultural land is let under a lease entered into on or after the coming into force of this section for a term of not less than 10 years,

(b)the land comprised in the lease is not let to the tenant during the tenant's continuance in any office, appointment or employment held under the landlord, and

(c)the lease does not constitute a 1991 Act tenancy or a repairing tenancy,

the tenancy under the lease is, by virtue of this subsection, a modern limited duration tenancy.

(2)Where—

(a)at any time before the expiry of the term of a short limited duration tenancy, the landlord and the tenant agree in writing to convert the tenancy to a modern limited duration tenancy, or

(b)the tenant remains in occupation of the land after the expiry of the term of a short limited duration tenancy of 5 years (including such a term fixed by virtue of section 4(2) or (3)) with the consent of the landlord,

the tenancy has effect as if it were for a term of 10 years commencing at the start of the term of the short limited duration tenancy, and the tenancy is, by virtue of this subsection, a modern limited duration tenancy.

(3)Where subsection (5) of section 4 results in a short limited duration tenancy purporting to be for a term of more than 5 years, the tenancy has effect as if it were for a term of 10 years; and the tenancy is, by virtue of this subsection, a modern limited duration tenancy.

(4)Without prejudice to subsections (2) and (3), where a lease constituting a tenancy of agricultural land, as described in paragraphs (b) and (c) of subsection (1), purports to be for a term of more than 5 years and less than 10 years, the tenancy has effect as if it were for a term of 10 years; and the tenancy is, by virtue of this subsection, a modern limited duration tenancy.

(5)Section 5B does not apply to a modern limited duration tenancy created under subsection (2), (3) or (4).

Annotations:

Amendments (Textual)

F5Ss. 5A, 5B inserted (23.12.2016 for specified purposes, 30.11.2017 in so far as not already in force) by Land Reform (Scotland) Act 2016 (asp 18), ss. 85(3), 130(1) (with s. 128); S.S.I. 2016/365, reg. 2, sch.; S.S.I. 2017/299, reg. 2, sch. (with reg. 5)

5BModern limited duration tenancies: break clausesS

(1)This section applies where the tenant under a lease constituting a modern limited duration tenancy is a new entrant to farming.

(2)The lease may contain a provision that the tenancy may be terminated after 5 years in accordance with section 8D (a “break clause”).

(3)The Scottish Ministers may by regulations make further provision about the tenants who are new entrants for the purposes of this section.]

Annotations:

Amendments (Textual)

F5Ss. 5A, 5B inserted (23.12.2016 for specified purposes, 30.11.2017 in so far as not already in force) by Land Reform (Scotland) Act 2016 (asp 18), ss. 85(3), 130(1) (with s. 128); S.S.I. 2016/365, reg. 2, sch.; S.S.I. 2017/299, reg. 2, sch. (with reg. 5)

[F65CRepairing tenancies: creationS

(1)Where—

(a)agricultural land is let under a lease entered into on or after the coming into force of this section for a term of not less than 35 years,

(b)the land comprised in the lease is not let to the tenant during the tenant's continuance in any office, appointment or employment held under the landlord,

(c)the lease does not constitute a 1991 Act tenancy,

(d)the lease requires the tenant, during the repairing period, to improve the land comprised in the lease in order to bring it into a state capable of being farmed, after the expiry of the repairing period, in accordance with the rules of good husbandry, and

(e)the lease expressly states that this section is to apply to the tenancy,

the tenancy is, by virtue of this subsection, a repairing tenancy.

(2)In this Part, the “repairing period” is the period, beginning with the commencement of the tenancy, of—

(a)5 years, or

(b)such longer period—

(i)as the landlord and tenant may agree under this paragraph or, as the case may be, under subsection (3)(a), or

(ii)as the Land Court may determine under subsection (3)(b).

(3)The repairing period may be extended at any time before its expiry—

(a)by the landlord and tenant by agreement, or

(b)by the Land Court on the application of either the landlord or the tenant.

(4)On an application under subsection (3)(b), the Land Court may extend the repairing period—

(a)if it considers it appropriate in all the circumstances to do so, and

(b)by such period as it determines necessary in all the circumstances.

(5)A lease constituting a repairing tenancy may contain a provision that the tenancy may be terminated in accordance with section 8G (a “break clause”).

(6)In this section and section 5D, what is good husbandry is to be construed by reference to schedule 6 of the Agriculture (Scotland) Act 1948.

5DRepairing tenancies: exemption from rules of good husbandry during repairing periodS

(1)Where a lease constituting a repairing tenancy does not include provision mentioned in subsection (2), such provision is incorporated.

(2)The provision is that during the repairing period the tenant cannot be held liable for not farming the land comprised in the lease in accordance with the rules of good husbandry.]

Chapter 2SGeneral provision as to new types of tenancy

[F7New types of tenancy: general provision]S

Annotations:

Amendments (Textual)

6Assignation, subletting and termination of short limited duration tenanciesS

(1)The tenant may not assign a lease constituting a short limited duration tenancy nor sublet the land comprised in the lease.

(2)A short limited duration tenancy may be terminated by the landlord and tenant by agreement.

7Assignation and subletting of limited duration tenanciesS

(1)A lease constituting a limited duration tenancy may be assigned by the tenant if, following notice under subsection (2), the landlord consents to a proposed assignation.

(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)[F8Subject 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.

[F9(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 land 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 land with reasonable efficiency.]

[F9(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 land 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 (except where the landlord exercises the right under subsection (5) to acquire the tenant’s interest in the lease) deemed to have consented to the proposed assignation.

(5)Where the landlord has been given notice under subsection (2), the landlord is entitled to acquire the tenant’s interest in the lease provided that—

(a)the landlord gives the tenant notice—

(i)in writing; and

(ii)within 30 days of the giving of the notice under subsection (2),

of the landlord’s intention to acquire that interest; and

(b)the terms upon which the landlord acquires that interest are no less favourable to the tenant than any reasonable terms upon which the proposed assignation was to have been made.

[F10(5A)For the purposes of subsection (3A), “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.]

(6)For the purposes of subsection (3)(b), what is good husbandry is to be construed by reference to the Sixth Schedule to the Agriculture (Scotland) Act 1948 (c. 45).

(7)A tenant may sublet the land comprised in a lease constituting a limited duration tenancy only on such basis as the lease expressly permits.

Annotations:

Amendments (Textual)

F8Words in s. 7(3) substituted (23.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 104(2)(a), 130(1) (with s. 128); S.S.I. 2016/365, reg. 2, sch. (with reg. 4)

Commencement Information

I5S. 7 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

[F117ASubletting of modern limited duration tenanciesS

A tenant may sublet the land comprised in a lease constituting a modern limited duration tenancy only on such basis as the lease expressly permits.]

Annotations:

Amendments (Textual)

[F127BAssignation of modern limited duration tenanciesS

(1)A lease constituting a modern limited duration tenancy may be assigned by the tenant if, following notice under subsection (2), the landlord consents to a proposed assignation.

(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 (4), 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.

(4)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 land with reasonable efficiency,

(c)subject to subsection (5), that the person has neither sufficient training in agriculture nor sufficient experience in the farming of land to enable the person to farm the land with reasonable efficiency.

(5)The ground of objection in subsection (4)(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 land is farmed with reasonable efficiency until the person completes that course.

(6)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.

(7)For the purposes of subsection (3)(b), what is good husbandry is to be construed by reference to schedule 6 of the Agriculture (Scotland) Act 1948.

(8)For the purposes of subsection (4), “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.]

8Continuation and termination of limited duration tenanciesS

(1)A limited duration tenancy may be terminated by agreement between the landlord and tenant if the agreement is in writing and—

(a)is entered into after the commencement of the tenancy; and

(b)makes provision as to compensation payable by the landlord or the tenant to the other.

(2)At and after the expiry of the term of a limited duration tenancy, the tenancy continues to have effect in accordance with subsection (6) unless it is terminated in accordance with this section.

(3)At the expiry of the term of a limited duration tenancy, the landlord may terminate the tenancy by giving a notice under this subsection to the tenant.

(4)A notice under subsection (3) must—

(a)be in writing and state that the tenant shall quit the land on the expiry of the term of the tenancy; and

(b)be given not less than one year nor more than two years before the expiry of the term of the tenancy, provided that not less than 90 days have elapsed from the date on which the intimation mentioned in subsection (5) is given.

(5)A notice under subsection (3) is of no effect unless the landlord has given written intimation of the landlord’s intention to terminate the tenancy to the tenant not less than two years nor more than three years before the expiry of the term of the tenancy.

(6)If the tenancy is not terminated in accordance with this section, it continues in effect on a cycle of continuations; that is to say, a continuation of three years (a “first short continuation”) followed by a further continuation of three years (a “second short continuation”) followed by a further continuation of [F1310] years (a “long continuation”) (the cycle being repeated without limit to the number of times).

(7)During a first short continuation, the landlord may terminate the tenancy by giving a notice under this subsection to the tenant; and subsections (4) and (5) apply to a notice under this subsection as they do to a notice under subsection (3).

(8)During a second short continuation, the landlord may terminate the tenancy by giving a notice under this subsection to the tenant.

(9)A notice under subsection (8)—

(a)must be in writing and state that the tenant shall quit the land on the relevant day; and

(b)may be given at any time during the continuation.

(10)For the purposes of subsection (9)(a)—

(a)where the notice has been given during the first year of the continuation, the relevant day is the day on which the continuation expires; and

(b)in any other case, the relevant day is the day on which the period of two years from the giving of the notice expires (and the continuation is deemed to expire on the relevant day).

(11)During a long continuation, the landlord may terminate the tenancy by giving a notice under this subsection to the tenant; and subsections (4) and (5) apply to a notice under this subsection as they do to a notice under subsection (3).

(12)For the purposes of subsections (7) and (11), the references in subsections (4) and (5) to the expiry of the term of the tenancy are to be read as references to the expiry of the continuation.

(13)At or after the expiry of the term of a limited duration tenancy, the tenant may terminate the tenancy by giving a notice under this subsection to the landlord.

(14)A notice under subsection (13) must—

(a)be in writing and state that the tenant intends to quit the land on the expiry of the term of the tenancy or, as the case may be, a continuation of the tenancy; and

(b)be given not less than one year nor more than two years before the expiry of the term of the tenancy or, as the case may be, continuation.

(15)During the term of a limited duration tenancy, the term of the tenancy may be extended by the landlord and tenant by agreement in writing.

Annotations:

Amendments (Textual)

Commencement Information

I6S. 8 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

[F148ATermination of modern limited duration tenancies by agreementS

A modern limited duration tenancy may be terminated by agreement between the landlord and tenant if the agreement is in writing and—

(a)is entered into after the commencement of the tenancy, and

(b)makes provision as to compensation payable by the landlord or the tenant to the other.

8BTermination of modern limited duration tenancies by landlordS

(1)At the expiry of the term of a modern limited duration tenancy, the landlord may terminate the tenancy by giving a notice under this subsection to the tenant.

(2)A notice under subsection (1) must—

(a)be in writing and state that the tenant must quit the land on the expiry of the term of the tenancy, and

(b)be given not less than 1 year nor more than 2 years before the expiry of the term of the tenancy, provided that not less than 90 days have elapsed from the date on which the intimation mentioned in subsection (3) is given.

(3)A notice under subsection (1) is of no effect unless the landlord has given written intimation of the landlord's intention to terminate the tenancy to the tenant not less than 2 years nor more than 3 years before the expiry of the term of the tenancy.

8CTermination of modern limited duration tenancies by tenantS

(1)At the expiry of the term of a modern limited duration tenancy, the tenant may terminate the tenancy by giving a notice under this subsection to the landlord.

(2)A notice under subsection (1) must—

(a)be in writing and state that the tenant intends to quit the land on the expiry of the term of the tenancy, and

(b)be given not less than 1 year nor more than 2 years before the expiry of the term of the tenancy.

8DTermination of modern limited duration tenancies subject to break clauseS

(1)This section applies where the lease constituting a modern limited duration tenancy contains a break clause by virtue of section 5B.

(2)The tenant may terminate the tenancy after 5 years by giving a notice under this subsection to the landlord.

(3)A notice under subsection (2) must—

(a)be in writing and state that the tenant intends to quit the land on the expiry of the period of 5 years beginning with the day the tenancy commenced, and

(b)be given not less than 1 year nor more than 2 years before the expiry of that period.

(4)The landlord may terminate the tenancy after 5 years by giving a notice under this subsection to the tenant.

(5)A notice under subsection (4) must—

(a)be in writing and state—

(i)that the tenant must quit the land on the expiry of the period of 5 years beginning with the day the tenancy commenced, and

(ii)the landlord's reasons for terminating the tenancy, and

(b)be given not less than 1 year nor more than 2 years before the expiry of that period.

(6)The landlord may give notice under subsection (4) only if the tenant—

(a)is not using the land in accordance with the rules of good husbandry, or

(b)is otherwise failing to comply with any other provision of the lease.

(7)For the purposes of subsection (6)(a), what is good husbandry is to be construed by reference to schedule 6 of the Agriculture (Scotland) Act 1948.

8EContinuation and extension of modern limited duration tenanciesS

(1)At and after the expiry of the term of a modern limited duration tenancy, the tenancy continues to have effect for a further term of 7 years unless it is terminated in accordance with section 8A, 8B or 8C.

(2)During the term of a modern limited duration tenancy, the term of the tenancy may be extended by the landlord and tenant by agreement in writing.]

9[F15Review of rent under limited duration tenancies, modern limited duration tenancies and repairing tenancies]S

[F16(A1)Where, by virtue of any provision, a review of rent due as payable under a lease constituting a limited duration tenancy [F17, a modern limited duration tenancy or a repairing tenancy]

(a)may be initiated only by the landlord; or

(b)may only determine that the rent is to be increased,

the provision concerned is void and the rent due as payable under the lease is instead to be reviewed and determined in accordance with this section.]

(1)Where a lease constituting a limited duration tenancy [F18or a modern limited duration tenancy] makes no provision for review of rent, the rent due as payable under the lease is to be reviewed and determined in accordance with this section.

[F19(1A)The rent due as payable under a lease constituting a repairing tenancy is to be reviewed and determined in accordance with this section.]

[F20(2)The landlord may initiate a review of the rent that is to be payable under the lease by serving a notice in writing on the tenant.

(3)The tenant may initiate such a review by serving a notice in writing on the landlord.

(4)A notice served under subsection (2) or (3) is a “rent review notice”.]

Annotations:

Amendments (Textual)

F15S. 9 heading substituted (23.12.2016 for specified purposes) by Land Reform (Scotland) Act 2016 (asp 18), ss. 102(2)(e), 130(1) (with s. 128); S.S.I. 2016/365, reg. 2, sch.

F17Words in s. 9(A1) inserted (23.12.2016 for specified purposes) by Land Reform (Scotland) Act 2016 (asp 18), ss. 102(2)(a), 130(1) (with s. 128); S.S.I. 2016/365, reg. 2, sch.

F18Words in s. 9(1) inserted (23.12.2016 for specified purposes) by Land Reform (Scotland) Act 2016 (asp 18), ss. 102(2)(b), 130(1) (with s. 128); S.S.I. 2016/365, reg. 2, sch.

F19S. 9(1A) inserted (23.12.2016 for specified purposes) by Land Reform (Scotland) Act 2016 (asp 18), ss. 102(2)(c), 130(1) (with s. 128); S.S.I. 2016/365, reg. 2, sch.

F20S. 9(2)-(4) substituted for s. 9(2)-(8) (23.12.2016 for specified purposes) by Land Reform (Scotland) Act 2016 (asp 18), ss. 102(2)(d), 130(1) (with s. 128); S.S.I. 2016/365, reg. 2, sch.

Modifications etc. (not altering text)

Commencement Information

I7S. 9 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

[F219AForm and content of rent review noticeS

(1)A rent review notice must be dated and state the following—

(a)the names and designations of the landlord and the tenant,

(b)the name (if any) and the address of the land comprised in the lease or such other description of the land as will identify it,

(c)the rent currently payable in respect of the land,

(d)the rent that the person serving the notice proposes should be payable,

(e)the date by which the landlord and the tenant must reach agreement as to what the rent payable should be (the “rent agreement date”).

(2)The rent review notice must be accompanied by information in writing explaining the basis on which the rent proposed by the person serving the notice has been calculated.

(3)The Scottish Ministers may by regulations make further provision about—

(a)the form and content of rent review notices,

(b)the information that must or may accompany them.

9BDetermination of rentS

(1)On review, the rent payable is the fair rent for the tenancy taking account of all the circumstances and having regard, in particular, to—

(a)the productive capacity of the land comprised in the lease,

(b)the open market rent of any surplus residential accommodation on the land provided by the landlord, and

(c)the open market rent of—

(i)any fixed equipment on the land provided by the landlord, or

(ii)any land comprised in the lease,

used for a purpose that is not an agricultural purpose.

(2)In this section and section 9C(4)(a)(ii), the “open market rent” means the rent at which—

(a)any surplus residential accommodation, or

(b)any fixed equipment or land used for a purpose that is not an agricultural purpose,

might reasonably be expected to be let on the open market by a willing landlord to a willing tenant.

(3)The Scottish Ministers may by regulations make provision for the purposes of this section about the productive capacity of land comprised in leases of limited duration tenancies, modern limited duration tenancies and repairing tenancies, including how the productive capacity of such land is to be determined.

(4)The rent determined in accordance with this section is to take effect from the rent agreement date.

9CReview of rent under limited duration tenancies, modern limited duration tenancies and repairing tenancies: surplus residential accommodationS

(1)Residential accommodation on land comprised in the lease of a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy is surplus to the extent that it exceeds what is necessary to provide accommodation for the standard labour requirement of the land.

(2)In determining whether residential accommodation is surplus—

(a)whether the standard labour requirement of the holding varies (seasonally or otherwise) may be taken into account,

(b)any accommodation—

(i)all or part of which is occupied by the tenant, or

(ii)which the tenant is prohibited (by the lease or otherwise) from subletting,

is to be disregarded.

(3)But any such prohibition as is mentioned in subsection (2)(b)(ii) is to be ignored if the tenant has sublet the accommodation by virtue of section 39(3).

(4)In having regard for the purposes of section 9B(1)(b) to the open market rent for any surplus residential accommodation—

(a)all the circumstances must be taken into account, including—

(i)the condition of the accommodation and its location, and

(ii)where accommodation is occupied by a retired agricultural worker, under an arrangement or agreement between the landlord and the tenant, at no rent or at a rent that is below what the open market rent for that accommodation would otherwise be, that fact,

(b)the fact that the accommodation is not currently let is to be disregarded.

(5)Where regard is had to the open market rent for surplus residential accommodation for the purposes of section 9B(1)(b), that accommodation is to be disregarded for the purposes of section 9B(1)(c).

(6)The Scottish Ministers may by regulations make provision about the standard labour requirement of land comprised in leases of limited duration tenancies, modern limited duration tenancies or repairing tenancies, including how the standard labour requirement of such land is to be determined.]

10Increase in rent: landlord’s improvementsS

(1)Where the landlord has carried out an improvement on the land comprised in a lease constituting a limited duration tenancy [F22, a modern limited duration tenancy or a repairing tenancy] (whether or not one specified in Schedule 5 to the 1991 Act)—

(a)at the request of, or in agreement with, the tenant;

(b)in pursuance of an undertaking given by the landlord by virtue of section 49(2) (as read with section 39(3) of the 1991 Act); F23...

(c)in compliance with a direction given by the Scottish Ministers under powers conferred on them by or under any enactment, [F24or

(d)after giving a landlord improvement notice in accordance with section 10A and—

(i)the tenant has not given notice of objection in accordance with section 10B, or

(ii)the tenant has given such notice of objection but the Land Court has approved the improvement under section 10C,]

subject to subsections (2) and (3), the rent payable is to be increased as from the completion of the improvement by an amount equal to the increase in the rental value of the land resulting from the carrying out of the improvement.

(2)The landlord must give the tenant notice in writing of any such increase in the rent payable within 6 months of the completion of the improvement.

(3)Where any grant has been made to the landlord in respect of an improvement mentioned in subsection (1), the increase in rent under that subsection must be reduced proportionately.

Annotations:

Amendments (Textual)

F23Word in s. 10(1) repealed (23.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 120(5), 130(1) (with s. 128); S.S.I. 2016/365, reg. 2, sch.

Commencement Information

I8S. 10 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

[F2510ALandlord improvement noticesS

(1)This section applies where the landlord of—

(a)a short limited duration tenancy within the meaning of section 4,

(b)a limited duration tenancy F26...,

(c)a modern limited duration tenancy within the meaning of section 5A, or

(d)subject to subsection (2), a repairing tenancy within the meaning of section 5C,

intends to carry out a relevant improvement.

(2)Subsection (1) does not apply in respect of the landlord of a repairing tenancy in relation to which the repairing period has not expired.

(3)A “relevant improvement” is an improvement specified in schedule 5 of the 1991 Act which is not intended to be carried out—

(a)at the request of or in agreement with the tenant,

(b)in pursuance of an undertaking given by landlord under section 49(2) (as read with section 39(3) of the 1991 Act), or

(c)in pursuance of a direction given by the Scottish Ministers under powers conferred on them by or under any enactment.

(4)The landlord must give notice in writing to the tenant before carrying out the relevant improvement, unless section 10F applies.

(5)A notice served in accordance with this section is a “landlord improvement notice”.

(6)A landlord improvement notice must be dated and state the following—

(a)the names and designations of the landlord and the tenant,

(b)the name (if any) and the address of the land comprised in the lease or such other description of the land as will identify it,

(c)details of the intended improvement, including the manner of the improvement,

(d)the landlord's reasons as to why the improvement is necessary to enable the tenant to fulfil the tenant's responsibilities to farm the land comprised in the lease in accordance with the rules of good husbandry.

(7)In this section and in sections 10B to 10F, what is good husbandry is to be construed by reference to schedule 6 of the Agriculture (Scotland) Act 1948.

10BObjection by tenantS

(1)Where the landlord has given a landlord improvement notice under section 10A, the tenant may object to the improvement or to part of it by giving notice in writing to the landlord before the end of the period of 2 months beginning with the day on which the tenant received the landlord improvement notice.

(2)A notice under subsection (1) must be dated and must state the tenant's reasons as to why the improvement is not necessary to enable the tenant to fulfil the tenant's responsibilities to farm the land comprised in the lease in accordance with the rules of good husbandry.

10CReferral to Land CourtS

(1)Where the tenant has given notice of objection under section 10B the landlord may, before the end of the period of 2 months beginning with the day on which the landlord received the notice of objection, apply to the Land Court for approval of the relevant improvement.

(2)The Land Court may—

(a)approve the carrying out of the relevant improvement—

(i)unconditionally, or

(ii)upon such terms as appear to it to be appropriate, or

(b)withhold its approval.

(3)Before approving a relevant improvement, the Land Court must be satisfied that the improvement is necessary to enable the tenant to fulfil the tenant's responsibilities to farm the land comprised in the lease in accordance with the rules of good husbandry.

10DNotice of dates of improvementS

(1)This section applies where an improvement is to be carried out by the landlord—

(a)at the request of or in agreement with the tenant,

(b)in pursuance of an undertaking given by the landlord under section 49(2),

(c)in pursuance of a direction given by the Scottish Ministers under powers conferred on them by or under any enactment, or

(d)after the landlord has given a landlord improvement notice in accordance with section 10A and—

(i)the tenant has not given notice of objection in accordance with section 10B, or

(ii)the tenant has given such notice of objection but the Land Court has approved the improvement under section 10C(2)(a).

(2)The landlord must give notice in writing to the tenant stating the period during which the landlord intends to carry out the improvement.

(3)Unless the landlord and tenant agree otherwise, that period must not commence earlier than the expiry of 2 weeks beginning with the day on which the landlord gives notice under subsection (2).

(4)Where the landlord has not begun to carry out an improvement, notice of which has been given under subsection (2), and there is a good reason for postponing the carrying out of the improvement, the landlord may give a new notice under subsection (2).

(5)Subsection (6) applies where the landlord has begun to carry out an improvement, notice of which has been given under subsection (2), and there is a good reason for extending the period during which the improvement is to be carried out.

(6)The landlord may, at any time before the expiry of the period stated in the notice under subsection (2), extend the period by giving notice in writing to the tenant stating the extended period during which the landlord intends to carry out the improvement.

(7)See section 10F on emergency improvements.

10EImprovement by landlord without notice etc.S

(1)Subsection (2) applies where a landlord has carried out an improvement and—

(a)the landlord did not give notice of the improvement to the tenant in accordance with section 10A,

(b)the tenant objected to the improvement under section 10B and the Land Court has not approved the improvement under section 10C(2)(a),

(c)the improvement is in breach of any decision of the Land Court under section 10C,

(d)the improvement was not an emergency improvement as defined in section 10F.

(2)Any such improvement is to be disregarded for the purposes of—

(a)assessing the tenant's responsibilities—

(i)in relation to farming the land comprised in the lease in accordance with the rules of good husbandry,

(ii)in relation to fixed equipment under sections 16(4)(b) and 16A(5)(b)(ii),

(b)any subsequent rent review under section 9.

10FEmergency improvementsS

(1)Where a landlord or a tenant considers that an emergency improvement is required, sections 10A(4) and 10D(2), (3), (5) and (6) do not apply.

(2)In this section an “emergency improvement” means a relevant improvement that is necessary for the purposes of—

(a)protecting public health from infectious diseases, contamination or other hazards which constitute a danger to human health,

(b)preventing a danger or potential danger to public safety,

(c)enabling the tenant to comply with the requirements of the Animal Health and Welfare (Scotland) Act 2006,

(d)securing the provision of essential services including electricity and water supply services, or

(e)remedying an accident or natural cause or force majeure which was exceptional and could not reasonably have been foreseen.]

11Variation of rent by Land CourtS

Where it appears to the Land Court, in determining any matter in relation to a limited duration tenancy [F27, a modern limited duration tenancy or a repairing tenancy] by virtue of section 13 [F28, 16, 16A or 16B] , that it is equitable that the rent payable under the lease should be varied, it may vary the rent accordingly.

Annotations:

Amendments (Textual)

Commencement Information

I9S. 11 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

12Right of tenant to withhold rentS

(1)Subsection (2) applies to an order—

(a)made under subsection (1)(b) of section 84; and

(b)which is in relation to a failure of the landlord in a short limited duration tenancy [F29, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy] to fulfil any obligation the landlord 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).

(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) applies; and

(b)authorise the tenant to withhold payment of the rent payable to the landlord under the tenancy on the condition that the tenant consigns 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).

(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) remains to be carried out; and

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

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

(6)Where the Land Court terminates the order made under subsection (3), it is to 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) as it considers to be equitable.

(7)Any work carried out and authorised under subsection (3)(a) is to 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).

(8)Any right of the landlord to irritate the lease or remove the tenant on the grounds of non-payment of rent is unenforceable if the non-payment of rent is in consequence of an authorisation under subsection (3)(b) 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 is, in so far as it so purports, of no effect.

Annotations:

Amendments (Textual)

F29Words in s. 12(1)(b) substituted (30.11.2017) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 2 para. 7(5) (with s. 128); S.S.I. 2017/299, reg. 2, sch. (with reg. 12)

Commencement Information

I10S. 12 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

13Written leases and the revision of certain leasesS

(1)Where, in respect of a short limited duration tenancy[F30, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy]

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

(b)there is in force a lease in writing but—

(i)the lease does not contain provision for the matters mentioned in subsection (2)(a) or contains provision inconsistent with those matters; or

(ii)the lease contains provision inconsistent with section 16 (as read with section 5(2) to (4) of the 1991 Act)[F31, section 16A or, as the case may be, section 16B],

the landlord or tenant may give notice in writing to the other requesting that a lease in writing be entered into containing the matters mentioned in subsection (2).

(2)Those matters are, as the case may be—

(a)provision for all the matters specified in Schedule 1 to the 1991 Act (that Schedule applying for the purposes of this section as it does for the purposes of that Act) or provision consistent with those matters; or

(b)provision consistent with section 16[F32, 16A or, as the case may be, 16B].

(3)If, within the period of 6 months after notice has been given under subsection (1), no such lease has been concluded, the terms of the lease may be determined by the Land Court.

(4)In such a determination, the Land Court—

(a)is to specify the terms of the existing tenancy and, in so far as those terms do not make provision for the matters mentioned in subsection (2)(a) or make provision inconsistent with those matters or with section 16 (as read with section 5(2) to (4) of the 1991 Act)[F33, section 16A or, as the case may be, section 16B,] make such provision for those matters as appears to it to be reasonable; and

(b)may specify any further term of the tenancy which is—

(i)agreed between the landlord and the tenant; and

(ii)not inconsistent with any provision applying to the tenancy by virtue of this Act.

(5)Any determination of the Land Court by virtue of this section or section 16[F34, 16A or, as the case may be, 16B] has effect as if—

(a)the terms and provisions specified or made therein were contained in an agreement in writing between the landlord and the tenant; and

(b)such agreement had effect as from the date of the determination or from such later date as the determination may appoint.

(6)If it appears to the Land Court that on the date of the determination the landlord or tenant would be in breach of any term of the tenancy so specified or made, the Court is to appoint such later date as would allow the landlord or, as the case may be, tenant to remedy the breach.

Annotations:

Amendments (Textual)

F31Words in s. 13(1)(b)(ii) inserted (30.11.2017) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 2 para. 7(6)(a)(ii) (with s. 128); S.S.I. 2017/299, reg. 2, sch. (with reg. 12)

Commencement Information

I11S. 13 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

14Freedom of cropping and disposal of produceS

Section 7 (freedom of cropping and disposal of produce) of the 1991 Act applies to short limited duration tenancies [F35, limited duration tenancies, modern limited duration tenancies and repairing tenancies] as it does to 1991 Act tenancies, but as if—

(a)the references to the holding were references to the land;

(b)in subsection (4)—

(i)the reference to section 61(1) of that Act were a reference to section 78(1) of this Act; and

(ii)the reference to arbitration included any other method mentioned in that section of this Act (the reference to the arbiter being construed accordingly);

(c)in subsection (5)—

(i)paragraph (a); and

(ii)in paragraph (b), the words “in any other case,”,

were omitted; and

(d)in subsection (6), in paragraph (b), the reference to a direction under section 9 of the 1949 Act were omitted.

Annotations:

Amendments (Textual)

Commencement Information

I12S. 14 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

15Permanent pastureS

Section 9 (arbitration as to permanent pasture) of the 1991 Act applies in relation to short limited duration tenancies [F36, limited duration tenancies, modern limited duration tenancies and repairing tenancies] as it does in relation to 1991 Act tenancies, but as if the references to the holding were references to the land.

Annotations:

Amendments (Textual)

Commencement Information

I13S. 15 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

16Fixed equipment etc.S

[F37(1)There is incorporated in every lease constituting a short limited duration tenancy or a limited duration tenancy an undertaking by the landlord that the landlord will—

(a) within 6   months of the commencement of the tenancy or, where that is not reasonably practicable by virtue of any obligation on the landlord under any other enactment, as soon as reasonably practicable thereafter—

(i)provide such fixed equipment as will enable the tenant to maintain efficient production as respects the use of the land as specified in the lease; and

(ii) put the fixed equipment so provided into the condition specified in the schedule of fixed equipment that is required by virtue of subsection   (2); and

(b)during the tenancy, effect such renewal or replacement of the fixed equipment so provided as may be rendered necessary by natural decay or by fair wear and tear.

(2)Where a lease constituting a short limited duration tenancy or a limited duration tenancy is entered into and fixed equipment is comprised in the lease, the parties must agree in writing a schedule of fixed equipment specifying—

(a)the fixed equipment which the landlord will provide in terms of subsection (1)(a); and

(b)the condition of the fixed equipment,

and on being so agreed (or, failing such agreement, on being determined in accordance with section   77 or 78 of this Act) the schedule of fixed equipment is deemed to form part of the lease.

(3)If at any time after the commencement of the tenancy the fixed equipment or its condition is varied, the landlord and tenant may agree to amend the schedule of fixed equipment accordingly or to substitute for it a new schedule.

(4)There is also incorporated in every such lease a provision that the liability of the tenant in relation to the maintenance of fixed equipment extends only to a liability to maintain the fixed equipment specified in the schedule of fixed equipment in as good a state of repair (natural decay and fair wear and tear excepted) as it was in—

(a)immediately after it was put into the condition specified in the schedule of fixed equipment; or

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

(5)The cost of making and agreeing the schedule of fixed equipment under this section must, unless otherwise agreed, be borne by the landlord and tenant in equal shares.]

(6)Any agreement between the landlord and tenant 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 the landlord’s obligations under the lease is of no effect.

(7)Any term of a lease constituting a short limited duration tenancy or a limited duration tenancy that requires the tenant to pay the whole or any part of the premium due under a fire insurance policy over any fixed equipment on the land is of no effect.

Annotations:

Amendments (Textual)

Commencement Information

I14S. 16 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

[F3816AModern limited duration tenancies: fixed equipment etc.S

(1)There is incorporated in every lease constituting a modern limited duration tenancy an undertaking by the landlord that the landlord will, within 6 months of the commencement of the tenancy or, where that is not reasonably practicable by virtue of any obligation on the landlord under any other enactment, as soon as reasonably practicable thereafter—

(a)provide such fixed equipment as will enable the tenant to maintain efficient production as respects the use of the land as specified in the lease, and

(b)put the fixed equipment so provided into the condition specified in the schedule of fixed equipment that is required by virtue of subsection (2).

(2)Where a lease constituting a modern limited duration tenancy is entered into and fixed equipment is comprised in the lease, the parties must agree in writing a schedule of fixed equipment specifying—

(a)the fixed equipment which the landlord will provide in terms of subsection (1)(a), and

(b)the condition of the fixed equipment,

and on being so agreed (or, failing such agreement, on being determined in accordance with section 77 or 78) the schedule of fixed equipment is deemed to form part of the lease.

(3)The schedule of fixed equipment must be agreed before the expiry of the period of 90 days beginning with the commencement of the tenancy.

(4)If at any time after the commencement of the tenancy the fixed equipment or its condition is varied, the landlord and tenant may agree to amend the schedule of fixed equipment accordingly or to substitute for it a new schedule.

(5)Unless the lease makes provision to the contrary, there is also incorporated in every such lease—

(a)an undertaking by the landlord that the landlord will, during the tenancy, effect such renewal or replacement of the fixed equipment provided as required by virtue of subsection (1) 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 extends only to a liability to maintain the fixed equipment specified in the schedule of fixed equipment 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 into the condition specified in the schedule of fixed equipment, or

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

(6)The cost of making and agreeing the schedule of fixed equipment under this section must, unless otherwise agreed, be borne by the landlord and tenant in equal shares.

(7)Any agreement between the landlord and tenant 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 the landlord's obligations under the lease is of no effect.

(8)Any term of a lease constituting a modern limited duration tenancy that requires the tenant to pay the whole or any part of the premium due under a fire insurance policy over any fixed equipment on the land is of no effect.]

17Resumption of land by landlordS

(1)The landlord may resume the land or any part of the land comprised in a lease constituting a short limited duration tenancy or [F39, a limited duration tenancy or a modern limited duration tenancy] if (and only if)—

(a)the resumption is for a non-agricultural purpose in respect of which permission requires to be obtained, and has been obtained, under the enactments relating to town and country planning by—

(i)in the case of a short limited duration tenancy, any person (including the tenant);

(ii)in the case of a limited duration tenancy [F40or a modern limited duration tenancy] , any person apart from the tenant;

(b)the lease does not expressly prohibit resumption for that purpose; and

(c)notice as mentioned in subsection (2) has been given.

(2)The landlord must give the tenant notice of any intention of the landlord so to resume any land; and the notice must—

(a)be in writing;

(b)be given not less than 1 year before the date on which the resumption is to take place; and

(c)specify that date.

(3)Where notice is given under subsection (2) for resumption of part of the land, the tenant may, within 28 days after—

(a)the giving of the notice; or

(b)the determination of any matter arising from the notice,

whichever is the later, terminate the tenancy by giving notice in writing to the landlord; and the termination takes effect on the date specified under subsection (2)(c).

(4)Where the landlord resumes part of the land under this section, the tenant is entitled to a reduction in rent—

(a)of an amount proportionate to that part; and

(b)of an amount in respect of any depreciation of the value to the tenant of the remainder of the land caused by the resumption of the part or any use made of the part,

but where paragraph (a) applies, in determining the amount of the reduction, account is to be taken of any benefit or relief allowed to the tenant under the lease in respect of the part resumed.

(5)Where—

(a)part of the land has been resumed under this section for a purpose mentioned in paragraph (f) (which specifies certain forms of mineral exploitation) of subsection (2) of section 29 of the 1991 Act (that paragraph applying for the purposes of this subsection as it does for the purposes of that section); and

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

that land is, if the conditions in subsection (6) are fulfilled, to be restored to the tenancy.

(6)The conditions are that—

(a)the tenancy continues in effect with the same landlord and tenant under the lease; and

(b)any compensation paid to the tenant in consequence of the resumption was calculated on the basis that the land would be restored under subsection (5).

Annotations:

Amendments (Textual)

Commencement Information

I15S. 17 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

18Irritancy of lease and good husbandryS

(1)Without prejudice to any rule of law, it is for the landlord and tenant to provide in the lease constituting a short limited duration tenancy or a limited duration tenancy what grounds there are for irritancy of the lease.

(2)Any term of such a lease or of an agreement in connection with the lease that provides for the lease to be irritated solely on the grounds that the tenant is not or has not been resident on the land is of no effect.

[F41(2A)Where such a lease may be irritated on the grounds that the rent is due and unpaid, notice as mentioned in subsection (7) may not be given unless—

(a)the landlord has given the tenant a demand in writing requiring the tenant to pay the rent due before the expiry of the period of 2 months beginning with the date of the demand, and

(b)the demand has not been complied with.]

(3)Where such a lease may be irritated on the grounds that the tenant is not using the land in accordance with the rules of good husbandry, what is good husbandry is to be construed, subject to subsections (4) and (5), by reference to the Sixth Schedule to the Agriculture (Scotland) Act 1948 (c. 45).

(4)Conservation activities are to be treated as being in accordance with the rules of good husbandry if they are carried out in accordance with—

(a)an agreement entered into under any enactment by the tenant; or

(b)the conditions of—

(i)any grant for the purpose of such activities paid out of the Scottish Consolidated Fund; or

(ii)such other grant of a public nature as the Scottish Ministers may by order specify.

(5)In the case of limited duration tenancies, such use of any of the land, or such change to the land, for a non-agricultural purpose as has been permitted under section 40 or 41 is to be treated as being in accordance with the rules of good husbandry.

(6)The landlord may not enforce any right to remove the tenant on grounds of irritancy unless notice as mentioned in subsection (7) is given.

(7)The landlord must give the tenant notice in writing of any intention of the landlord so to remove the tenant not less than 2 months before the date on which the tenant is to be removed.

Annotations:

Amendments (Textual)

Commencement Information

I16S. 18 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

[F4218AIrritancy of lease and good husbandry: modern limited duration tenanciesS

(1)Without prejudice to any rule of law, it is for the landlord and tenant to provide in the lease constituting a modern limited duration tenancy what grounds there are for irritancy of the lease.

(2)Any term of such a lease or of an agreement in connection with the lease that provides for the lease to be irritated solely on the grounds that the tenant is not or has not been resident on the land is of no effect.

(3)Where such a lease may be irritated on the grounds that the tenant is not using the land in accordance with the rules of good husbandry, what is good husbandry is to be construed, subject to subsections (4) and (5), by reference to schedule 6 of the Agriculture (Scotland) Act 1948.

(4)Conservation activities are to be treated as being in accordance with the rules of good husbandry if they are carried out in accordance with—

(a)an agreement entered into under any enactment by the tenant, or

(b)the conditions of—

(i)any grant for the purpose of such activities paid out of the Scottish Consolidated Fund, or

(ii)such other grant of a public nature as the Scottish Ministers may by regulations specify.

(5)Such use of any of the land, or such change to the land, for a non-agricultural purpose as has been permitted under section 40 or 41 is to be treated as being in accordance with the rules of good husbandry.

(6)Where the landlord intends to irritate the lease, the landlord must give the tenant notice in writing specifying—

(a)the breach of the tenant's obligations under the lease which form the grounds on which the landlord intends to irritate the lease, and

(b)the period before the expiry of which the tenant must remedy that breach, which period must be not less than 12 months beginning with the date of the notice.

(7)The period mentioned in subsection (6)(b) may be extended—

(a)by the landlord and the tenant by agreement, or

(b)by the Land Court on the application of the tenant.

(8)The landlord may not enforce any right to remove the tenant on grounds of irritancy unless—

(a)the period specified in the notice under subsection (6)(b), or such extended period as mentioned in subsection (7), has expired without the tenant having remedied the breach specified in the notice, and

(b)the landlord has given notice in writing of the intention so to enforce the right to remove the tenant not less than 2 months before the date on which the tenant is to be removed.]

Annotations:

Amendments (Textual)

F42S. 18A inserted (23.12.2016 for specified purposes, 30.11.2017 in so far as not already in force) by Land Reform (Scotland) Act 2016 (asp 18), ss. 89(2), 130(1) (with s. 128); S.S.I. 2016/365, reg. 2, sch.; S.S.I. 2017/299, reg. 2, sch.

19Resumption and irritancy: supplementaryS

Any provision of this Act as to the termination of a short limited duration tenancy [F43, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy] does not affect any right of the landlord to—

(a)resume land under section 17 [F44or 17A] ; or

(b)remove a tenant—

(i)whose estate has been sequestrated; or

(ii)who for any reason has incurred irritancy of the lease or other liability to be removed.

Annotations:

Amendments (Textual)

Commencement Information

I17S. 19 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

Succession to short limited duration tenancies and limited duration tenanciesS

20Section 16 of the Succession (Scotland) Act 1964S

In section 16 (provisions relating to leases) of the Succession (Scotland) Act 1964 (c. 41) (in sections 21 to 23 referred to as “the 1964 Act”), after subsection (4) there is inserted—

(4A)Where an interest, being an interest under a lease constituting a short limited duration tenancy or a limited duration tenancy—

(a)is not the subject of a valid bequest by the deceased; or

(b)is the subject of such a bequest, but the bequest is not accepted by the legatee; or

(c)is the subject of such a bequest, but the bequest is declared null and void by virtue of section 21 of the 2003 Act,

and there is among the conditions of the lease (whether expressly or by implication) a condition prohibiting assignation of the interest, the executor shall be entitled, notwithstanding that condition, to transfer the interest to a person to whom subsection (4B) below applies; and the executor shall be entitled so to transfer the interest without the consent of the landlord.

(4B)This subsection applies to—

(a)any one of the persons entitled to succeed to the deceased’s intestate estate, or to claim legal rights or the prior rights of a surviving spouse out of the estate, in or towards satisfaction of that person’s entitlement or claim; or

(b)any other person.

(4C)In the case of any interest under a lease constituting a short limited duration tenancy or a limited duration tenancy—

(a)if at any time the executor is satisfied that the interest cannot be disposed of according to law and so informs the landlord, the executor may terminate the tenancy (in so far as it relates to the interest); and

(b)if the interest is not so disposed of within the period referred to in subsection (4D) below, the lease shall (in so far as it relates to the interest) terminate at the expiry of the period,

notwithstanding any provision in the lease, or any enactment or rule of law, to the contrary effect.

(4D)The period is one year or such longer period as may be fixed by agreement or, failing agreement, by the Land Court on the application of the executor—

(a)in the case of an interest which is the subject of an application to that court by virtue of section 21 of the 2003 Act, from the date of the determination or withdrawal of the application; and

(b)in any other case, from the date of death of the deceased.

(4E)The—

(a)interest may be transferred under subsections (4A) and (4B) above; or

(b)tenancy may be terminated under subsection (4C)(a) above,

only if the transfer, or as the case may be, termination is in the best interests of the deceased’s estate..

21Bequest of leaseS

(1)Subject to subsections (2) and (3), the tenant of a short limited duration tenancy [F45, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy] may, by will or other testamentary writing, bequeath the lease constituting the tenancy to [F46any one of the persons mentioned in subsection (1A)] .

[F47(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.]

[F48(2)Sections 11(2) and (3), 12A, 12B and 12C(1) and (2) of the 1991 Act apply in relation to subsection (1) as they do in relation to section 11(1), subject to the following modifications—

(a)in section 11(2), the words “of a holding” and “of the holding” are omitted,

(b)in section 12A, in subsections (3)(b) and (c) and (4)(b), for “holding” substitute “ land comprised in the lease ”,

(c)in section 12C, in subsection (1), for “holding” substitute “ land comprised in the lease ”.]

(3)If the person to whom the lease is so bequeathed does not accept the bequest, or if the bequest is declared null and void by virtue of subsection (2), the right to the lease is, subject to section 16(4A) to (4E) of the 1964 Act, to be treated as intestate estate of the deceased in accordance with Part I of that Act.

Annotations:

Amendments (Textual)

Commencement Information

I19S. 21 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)

22Right of landlord to object to acquirer of tenancyS

(1)A person to whom a lease constituting a short limited duration tenancy [F49, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy] is transferred under section 16 (provisions relating to leases) of the 1964 Act must give notice of the transfer to the landlord within 21 days of the transfer or (where that is not possible) as soon as practicable thereafter; and the lease is, subject to subsections (2) and (3), binding on the landlord and that person as landlord and tenant respectively as from the date of the transfer if such notice is given.

[F50(2)Sections 12A, 12B and 12C(1), (2) and (5) of the 1991 Act apply in relation to subsection (1) as they do in relation to section 12(1), subject to the following modifications—

(a)in section 12A—

(i)in subsection (2), the reference to notice given under section 12(1) is to be read as a reference to notice given under subsection (1),

(ii)in subsections (3)(b) and (c) and (4)(b), for “holding” substitute “ land comprised in the lease ”,

(b)in section 12B(2), the reference to notice given under section 12(1) is to be read as a reference to notice given under subsection (1),

(c)in section 12C, in subsection (1), for “holding” substitute “ land comprised in the lease ”.]

(3)Where a lease constituting a short limited duration tenancy [F51, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy] is transferred to a person under subsections (4A) and (4B)(b) of section 16 of the 1964 Act, the landlord is entitled to acquire the person’s interest in the lease provided that—

(a)the landlord gives the person notice—

(i)in writing; and

(ii)within 30 days of the giving of the notice under subsection (1),

of the landlord’s intention to acquire that interest; and

(b)the terms upon which the landlord acquires that interest are no less favourable to the person than any reasonable terms upon which the lease was transferred to the person.

23Effect of termination of tenancy where tenant deceasedS

Termination of a short limited duration tenancy [F52, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy] by virtue of—

(a)section 16 of the 1964 Act; or

(b)section 22,

is to be treated, for the purposes of any compensation payable under this Act, as termination at the expiry of the term of the tenancy.

Annotations:

Amendments (Textual)

Commencement Information

I21S. 23 in force at 27.11.2003 by S.S.I. 2003/548, art. 2(a) (with Sch.)