447.Section 92 amends the 2003 Act by inserting new sections 5C and 5D.
448.Section 5C of the 2003 Act sets out how a repairing tenancy is created. Subsection (1) states that a repairing tenancy is to be for a period of not less than 35 years; it cannot be a 1991 Act tenancy and the lease must expressly state that it is one to which section 5C applies; the land leased cannot be let to the tenant during the tenant’s continuance in any office, appointment or employment held under the landlord; and during the “repairing period” the tenant is required by the lease to improve the land so as to bring it into a state capable of being farmed in accordance with the rules of good husbandry after the expiry of the repairing period.
449.Subsection (2) defines the duration of the repairing period as at least 5 years from the start of the tenancy or such longer period as is initially agreed between the parties Alternatively, under subsection (3), the repairing period may be extended at any time before its expiry by agreement between the parties, or by the Land Court upon application of either party. The Land Court may extend the repairing period if it considers it appropriate in all the circumstances and by such a period as it considers necessary (subsection (4)). There are significant differences between the requirements on parties to a repairing tenancy during this period and after the expiry of the period.
450.Subsection (5) provides that the lease may contain provision for a break clause.
451.Subsection (6) states that for the purposes of section 5C and 5D, good husbandry is to be construed by reference to schedule 6 of the Agriculture (Scotland) Act 1948.
452.Section 5D contains provision exempting the tenant from liability for not farming the land in accordance with the rules of good husbandry during the repairing period.
453.Section 93 inserts a new section 7C into the 2003 Act which provides that, during the repairing period, the tenant can only sublet the land with the consent of the landlord and that after this period the land may only be sublet if the lease expressly provides for it.
454.Section 94 inserts new sections 8F and 8G into the 2003 Act. Section 8F applies the same process for the termination, continuation and extension of a repairing tenancy as provided for MLDTs by section 87 of the Act, subject to section 8G.
455.Section 8G provides the process whereby both parties may end a repairing tenancy during the repairing period if it contains a break clause.
456.Subsection (2) of new section 8G states that at any time during the repairing period, the tenant can terminate the tenancy by giving notice to the landlord.
457.Subsection (3) of that section sets out the notice requirements here: the notice must be in writing and given at least 1 year but no more than 2 years before the date specified in the notice on which the tenant intends to quit the land.
458.Subsection (4) of new section 8G states that the landlord may also terminate the tenancy but such termination can only take effect on the expiry of the repairing period. Subsection (5) then sets out the notice requirements here, including that the landlord must give reasons for terminating the tenancy at this point.
459.Subsection (6) prohibits the landlord from terminating the tenancy on the expiry of the repairing period on the grounds that the tenant is not farming the land in accordance with the rules of good husbandry. However the landlord may terminate the tenancy at this point if the tenant is in breach of another provision of the lease.
460.Section 95 inserts new section 16B into the 2003 Act and makes provision for fixed equipment obligations under the lease. The dividing line provided by the duration of the repairing period is significant in determining parties’ obligations.
461.Subsection (1) of section 16B of the 2003 Act provides that the parties must agree a schedule of fixed equipment which the landlord will provide to enable the tenant to maintain efficient production when the repairing period ends.
462.Subsections (2) and (3)> of section 16B state that the schedule must be agreed within 90 days of the tenancy commencing but it may be varied during the life of the lease.
463.Subsection (4) of section 16B provides that the cost of preparing the schedule falls in equal shares on the parties, unless otherwise agreed.
464.Subsection (5) of section 16B states that the tenant must, during the repairing period, provide such fixed equipment as will allow the tenant to maintain efficient production when the repairing period ends; and that the tenant must maintain, renew or replace any such fixed equipment, or that provided by the landlord under subsection (1)(a). But these are default obligations, and the parties may agree otherwise.
465.Subsection (6) of section 16B provides that after the repairing period ends, the landlord must renew and replace the fixed equipment in the schedule of condition where necessary due to fair wear and tear. It also places an obligation on the tenant to maintain fixed equipment after the repairing period ends, but only to the same state of repair as it was in when the repairing period ended (or, if it was improved, provided, renewed or replaced after that point, at the point it was so improved etc). Again, these are default obligations, and the parties may agree otherwise.
466.Subsections (8) and (9) of section 16B prevent any agreement between the landlord and tenant that provides that the tenant is to bear any expense of work that the landlord is required to execute to fulfil their own obligations under the lease, or which provides that the tenant is required to pay whole or part of any fire insurance premium for fixed equipment.
467.Section 96 inserts a new section 17A into the 2003 Act which prevents the landlord from resuming the land, or any part of it, during the repairing period and until five years after its end. At five years after the end of the repairing period, section 17 of the 2003 Act is applied for the purposes of resuming a repairing tenancy, as it applies in relation to LDTs and MLDTs.
468.Section 97 inserts a new section 18B into the 2003 Act which provides that new section 18A of the 2003 Act, relating to irritancy of MLDTs, also applies to repairing tenancies throughout their duration. However subsection (2) qualifies this by providing that any attempt to irritate the lease for breach of the rules of good husbandry will have no effect during the repairing period.
469.Section 98 inserts a new section 59A into the 2003 Act which gives Scottish Ministers the power to make regulations to apply Part 4 of the 2003 Act – on compensation for improvements to a holding, as well as compensation for disturbance, diversification and other matters – to repairing tenancies, with appropriate modifications to those provisions for the discrete purposes of this new form of tenancy.