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Agricultural Holdings (Scotland) Act 2003

Type Act of the Scottish Parliament

Publication 2003-04-22

Last updated 2021-02-28

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(3) In ascertaining the amount of any compensation payable by virtue of subsection (3) of section 45, account is to be taken of any injury to or deterioration of the land due to the contravention of the lease or agreement mentioned in that subsection (except insofar as the landlord has recovered damages in respect of the injury or deterioration).

48

Compensation under section 45(1) is not payable for an improvement specified in Part I of Schedule 5 to the 1991 Act unless, before the improvement was carried out, the landlord consented to it in writing (whether unconditionally or upon terms agreed on between the parties).

Notice required for certain improvements

49

(1) Compensation under section 45(1) is not payable for an improvement specified in Part II of Schedule 5 to the 1991 Act unless the tenant gave notice in writing to the landlord specifying the tenant’s intention to carry out the improvement and the manner in which it was proposed to carry it out.

(2) In section 39 (approval of Land Court in certain cases) of the 1991 Act (as read with Schedule 5 to that Act), subsections (1) to (4) apply in relation to compensation under section 45(1) as they do in relation to compensation under Part IV of that Act but as if, in subsection (1) of that section—

(a) the words “a new” were omitted;

(b) the words “one month” read “60 days”; and

(c) the reference to notice under section 38(3) of that Act were a reference to the notice mentioned in subsection (1) of this section.

Chapter 2 — Compensation for disturbance and diversification etc.

1991 Act tenancies

Compensation for disturbance and for damage by game

50

(1) In section 43 (compensation for disturbance) of the 1991 Act, paragraph (c) of subsection (4) is repealed.

(2) In section 52 (compensation for damage by game) of that Act, in paragraph (b) of subsection (2) for the words from “one” to the end there is substituted “ 6 months of the giving of notice under paragraph (a) above ”.

Compensation arising as a result of diversification etc.

51

(1) After section 45 (compensation to landlord for deterioration etc.) of the 1991 Act there is inserted—

(45A) (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.

(2) In section 47 (provisions supplementary to sections 45 and 46) of that Act, in subsection (1), for the words “under section 45” there is substituted “ by the landlord under section 45 or 45A ”.

New types of tenancy

Compensation for disturbance

52

(1) Where—

(a) any land is resumed under section 17; or

(b) a short limited duration tenancy , a limited duration tenancy or a modern limited duration tenancy terminates by notice under subsection (3) of that section,

compensation for disturbance is payable by the landlord to the tenant.

(2) Subsections (3) to (6) of section 43 (compensation for disturbance) of the 1991 Act apply in relation to compensation payable under subsection (1) above as they do in relation to compensation payable under that section, but as if—

(a) in those subsections, the references to the holding were references to the land;

(b) in subsection (6)—

(i) the reference to the tenant of an agricultural holding were a reference to the tenant of the short limited duration tenancy , limited duration tenancy or modern limited duration tenancy ; and

(ii) the reference to a notice to quit given by the landlord were a reference to the termination of the tenancy; and

(i) the references to the land in those subsections of section 43 of that Act by virtue of paragraph (a) of this subsection were references to that part; and

(ii) the references to the rent in subsection (4)(a) and (b) of that section were references to the rent proportionate to the part.

(3) Where the tenancy terminates as mentioned in subsection (1)(b) and—

(a) the part of the land affected by the notice under subsection (2) of section 17, together with any part of the land resumed following a previous such notice is—

(i) less than a quarter of the original area of the land comprised in the lease constituting the tenancy; or

(ii) of a rental value less than a quarter of the rental value of that area of land; and

(b) the remainder of the land is reasonably capable of being farmed separately,

compensation is payable under subsection (1) only in respect of the part of the land to which the notice relates.

(4) In a case mentioned in subsection (2)(c), in determining the amount of compensation payable, 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 compensation is payable under subsection (1)(a), in addition to that compensation, compensation is payable by the landlord to the tenant of an amount equal to the additional benefit (if any) which would have accrued to the tenant if the land (instead of being resumed on the date of resumption) had been resumed on the expiry of the period of 12 months from the end of the year of tenancy current at the date 2 months before the date of resumption.

Compensation for other particular things

53

(1) Section 44 (compensation for continuous adoption of special standard of farming) of the 1991 Act applies to short limited duration tenancies, limited duration tenancies and modern limited duration 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 (2) of that section, the reference to a record of fixed equipment were a reference to fixed equipment specified under section 16 or 16A of this Act; the reference to the date of the record were a reference to the date on which the equipment was so specified; and the words from “or” to the end were omitted; and

(c) in subsection (3) of that section, the reference to Part IV of that Act were a reference to section 45(1) of this Act.

(2) Section 45A (compensation arising as a result of diversification etc.) of that Act, as read with subsection (1) of section 47 of that Act, applies to limited duration tenancies and to modern limited duration tenancies as it does to 1991 Act tenancies, but as if the references to the holding were references to the land.

(3) Section 52 (compensation for damage by game) of that Act applies to short limited duration tenancies, limited duration tenancies and modern limited duration tenancies as it does to 1991 Act tenancies.

Chapter 3 — Compensation where compulsory acquisition of land

Compensation where compulsory acquisition of land

54

(1) Subject to subsection (4), this subsection applies where, in pursuance of any enactment providing for the acquisition or taking of possession of land compulsorily, any person (the “acquiring authority”) acquires the interest of the tenant under, or takes possession of the land or any part of the land comprised in a lease constituting, a short limited duration tenancy , a limited duration tenancy or a modern limited duration tenancy .

(2) Where subsection (1) applies, compensation for disturbance is payable by the acquiring authority to the tenant of an amount equal to four times the annual rent of the land or, in the case of part of the land, four times the annual rent proportionate to that part.

(3) For the purposes of subsection (2), the tenant is deemed not to be the tenant in so far as, immediately before the acquiring of the interest or the taking of possession mentioned in subsection (1), the tenant was not in possession, nor entitled to take possession, of any of the land.

(4) Subsection (1) does not apply—

(a) where the acquiring authority requires the land or part of the land for the purposes of agricultural research or experiment or of demonstrating agricultural methods; or

(b) where the Scottish Ministers acquire the land or part of the land under section 57(1)(c) or 64 of the Agriculture (Scotland) Act 1948 (c. 45).

(5) For the purposes of subsection (4)(a), where an acquiring authority exercises, in relation to any land, power to acquire or take possession of land compulsorily which is conferred on the authority by virtue of section 189 of the Town and Country Planning (Scotland) Act 1997 (c. 8) or section 7 of the New Towns (Scotland) Act 1968 (c. 16), the authority is deemed not to require the land for any purpose mentioned in that subsection.

(6) Schedule 8 to the 1991 Act has effect in relation to payments under subsection (2) as it does in relation to payments under section 56 (additional payments in consequence of compulsory acquisition etc.) of that Act, but as if—

(a) the references to sections 54 and 56 of that Act were references to that subsection;

(b) the references to sections 13 and 15 of that Act were references to sections 9 and 10 of this Act respectively; and

(7) Any reference in this section to the acquisition of property is a reference to the vesting of the property in the person acquiring it.

Chapter 4 — Miscellaneous provision as to compensation

Right to compensation for yielding vacant possession

55

(1) This section applies to—

(a) a 1991 Act tenancy; ...

(b) a limited duration tenancy created under section 2 , and

(2) Where the landlord wishes to sell the land with vacant possession, the landlord may enter into an agreement in writing with the tenant that—

(a) the tenant will give notice of intention to quit and then vacate the land by such date as may be specified in the agreement; and

(b) the landlord, having sold the land, will pay to the tenant an amount of compensation for so doing calculated by reference to subsection (3) below.

(3) That amount is, subject to subsection (8), half of the difference between—

(a) the price for which the land is sold; and

(b) the estimated value of the land if it had been sold with the tenant still in occupation,

minus half of the cost of the valuation carried out for the purposes of paragraph (b).

(4) Where the tenancy is a limited duration tenancy or a modern limited duration tenancy and the tenant wishes to quit the land, the tenant may enter into an agreement in writing with the landlord that—

(a) the tenant will give notice of intention to quit and then vacate the land by such date as may be specified in the agreement; and

(b) the landlord will pay to the tenant an amount of compensation for so doing calculated by reference to subsection (5) below.

(5) That amount is, subject to subsection (8), half of the difference between—

(a) the estimated value of the land if sold with vacant possession; and

(b) the estimated value of the land if sold with the tenant still in occupation,

minus half of the cost of the valuations carried out for the purposes of paragraphs (a) and (b).

(6) Any valuation for the purposes of this section is to be carried out by a valuer appointed by agreement between the landlord and the tenant or by a person nominated by them; and in this section “valuer” includes two valuers with an oversman.

(7) A valuer appointed or nominated under subsection (6) is to act, so far as practicable, as if the valuation was subject to subsections (2) to (7) of section 34.

(8) The amount of compensation under subsection (3) or (5) shall take account of—

(a) where the tenancy is a limited duration tenancy, the proportion of the term of the tenancy or a modern limited duration tenancy which is unexpired; and

(b) in any case, any—

(i) investments;

(ii) improvements; and

(iii) repairs and maintenance,

in the holding made by both tenant and landlord over the period of the lease.

No right to penal rent etc.

56

The landlord under a short limited duration tenancy , a limited duration tenancy or a modern limited duration tenancy is not entitled to recover any sum, by way of higher rent, liquidated damages or otherwise, in consequence of any breach or non-fulfilment of a term or condition of the lease, which is in excess of the damage actually suffered by the landlord in consequence of the breach or non-fulfilment; and any provision of the lease to the contrary is of no effect.

Provision as to parts of land and divided land

57

(1) Where any land comprised in a lease constituting a short limited duration tenancy , a limited duration tenancy or a modern limited duration tenancy is not agricultural land only because of the reason mentioned in subsection (2), the provisions of this Part as to compensation apply as if the remainder of the land were the land comprised in the lease.

(2) The reason is that, due to the nature of the building on the land or the use to which the land is put, the land would not, if separately let when the tenancy commenced, have been capable of being the subject of the tenancy.

(3) Where the interest of the landlord in a short limited duration tenancy , a limited duration tenancy or a modern limited duration tenancy has become vested in several parts in more than one person and the rent payable by the tenant under the lease has not been apportioned with the tenant’s consent or under any enactment, the tenant is entitled to require that any compensation payable to the tenant under this Part be determined as if the land had not been divided.

(4) For the purposes of subsection (3), the Land Court, where necessary, is to apportion the amount payable between the persons who together constitute the landlord, and any additional expenses of the determination caused by the apportionment are to be directed by the Land Court to be paid by those persons in such proportions as it determines.

Compensation not payable where direction as to permanent pasture

58

(1) Notwithstanding any provision of this Part or any custom or agreement—

(a) no compensation is payable under this Part (except under paragraph (b)) to the tenant in respect of anything done in pursuance of any direction as to permanent pasture given by virtue of section 15; and

(b) in assessing compensation to an outgoing tenant where land has been ploughed up in pursuance of any such direction, the value per hectare of any tenant’s pasture (being pasture laid down at the expense of the tenant or paid for by the tenant on entering the tenancy) comprised in the land is to be taken not to exceed the average value per hectare of the whole of the tenant’s pasture comprised in the land on the termination of the tenancy.

(2) Where an improvement specified in Part III of Schedule 5 to the 1991 Act (that Part of that Schedule having effect for the purposes of this subsection and section 15 as it does for the purposes of section 9 of that Act) is carried out for the purposes of any requirement in relation to permanent pasture provided for by virtue of section 15, the tenant is not entitled to compensation for the improvement.

Extent to which compensation recoverable under agreements

59

(1) Where by virtue of any provision of this Part compensation is payable to a landlord or tenant of a short limited duration tenancy , a limited duration tenancy or a modern limited duration tenancy , that person—

(a) is entitled to such compensation notwithstanding the terms of any agreement between them; and

(b) is not entitled to such compensation except by virtue of that provision,

but this subsection is subject to any express provision by virtue of this Part to the contrary.

(2) Where the landlord and tenant agree in writing for such a variation of the terms of the lease as may be made by a direction by virtue of section 15, the agreement may also provide for the exclusion of compensation on the same basis as under section 58(1).

(3) In a case for which there is no provision for compensation by virtue of this Part, a claim for compensation by a landlord or tenant of a short limited duration tenancy , a limited duration tenancy or a modern limited duration tenancy is not enforceable except under an agreement in writing.

Part 5 — Miscellaneous amendments to the 1991 Act

Agreements as to fixed equipment

60

In section 5 (fixed equipment and insurance premiums) of the 1991 Act—

(a) subsection (3) is repealed; and

(b) after subsection (4) there is inserted—

(4A) Any agreement between the landlord and tenant made before the coming into force of this subsection which purports to provide for the tenant to execute on behalf of the landlord (whether wholly at his expense or wholly or partly at the expense of the landlord) any work effecting such replacement or renewal of the building or other fixed equipment on the holding as is rendered necessary by natural decay or by fair wear and tear shall be nullified provided that subsection (4B) below is complied with. (4B) This subsection is complied with if— (a) following a determination (in accordance with section 13 of this Act) of the rent payable in respect of the holding, the tenant gives notice to the landlord that the agreement be nullified as from a date specified in the notice; and (b) on that date— (i) the buildings and other fixed equipment are in a reasonable state of repair; or (ii) if the buildings and other fixed equipment were in an unreasonable state of repair when the agreement was made, they are not in a worse state of repair than they were then. (4C) Any agreement between the landlord and tenant made before the coming into force of this subsection which purports to provide for the tenant to bear any expense of any work effecting such replacement or renewal of the building or other fixed equipment on the holding as is rendered necessary by natural decay or by fair wear and tear shall be subject to subsections (4A) and (4B) above. (4D) Any agreement between the landlord and tenant made on or after this subsection comes into force which purports to provide for the tenant to bear any expense of any work which the landlord is required to execute in order to fulfil his obligations under the lease shall be null and void.

Making of records

61

(1) In section 8 (record of condition, etc. of holding) of the 1991 Act—

(a) for subsection (3) there is substituted—

(3) A record under this section shall be made by a person to be appointed by agreement between the parties; but, in the absence of such agreement, the Scottish Ministers shall on the application of either party appoint a person to make the record. (3A) The Scottish Ministers may charge such reasonable fee as they may determine for making an appointment under subsection (3) above. (3B) The record shall be in such form as the parties agree or, in the absence of such agreement, as the recorder considers appropriate.

;

(b) in subsection (6), the words “, on the application of the landlord or tenant,” are repealed; and

(c) in each of subsections (8) and (9), for the word “the” in the second place where it appears there is substituted “ any ”.

(2) In section 80 (determination of matters where the Scottish Ministers are landlord or tenant) of that Act—

(a) in subsection (2), after “Act” insert “ (except section 8) ”; and

(b) after that subsection there is inserted—

(3) Where this section applies, section 8 of this Act shall have effect— (a) with the substitution for “Scottish Ministers” in subsection (3) of “sheriff”; (b) as if subsection (3A) were omitted.

Interdict in certain cases

62

In section 7 (freedom of cropping and disposal of produce) of the 1991 Act—

(a) in subsection (3), the words “, but no other” are repealed;

(b) after that subsection there is inserted—

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

;

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

; and

(d) in subsection (6)(b), after the word “or” in the second place where it appears there is inserted “ it has been determined ”.

Variation of rent

63

In section 13 (variation of rent) of the 1991 Act—

(a) in subsection (2), for the word “(7)” there is substituted “ (7A) ”;

(b) in subsection (3), for the words from “there” to the end there is substituted

disregarding— (a) any effect on rent of the fact that the tenant is in occupation of the holding; and (b) any distortion in rent due to a scarcity of lets, but having regard to the matters referred to in subsection (4) below.

;

(4) For the purposes of determining the rent payable under subsection (3) above, the Land Court shall have regard to the following— (a) information about rents of other agricultural holdings (including when fixed) and any factors affecting those rents (or any of them) except any distortion due to a scarcity of lets; and (b) the current economic conditions in the relevant sector of agriculture.

;

(d) in subsection (7)—

(i) the words from “any” to the end become paragraph (a); and

(ii) after that paragraph there is inserted

; or (b) any reduction in the rental value of the holding resulting from— (i) the use of the land or part of the land, or changes to the land, for a purpose that is not an agricultural purpose; or (ii) the carrying out of conservation activities on the land.

; and

(e) after that subsection there is inserted—

(7A) The Land Court shall take into account any increase in the rental value of the holding resulting from the use of the land for a purpose that is not an agricultural purpose.

Tenant’s right to withhold rent

64

After section 15 (increase of rent for certain improvements by landlord) of the 1991 Act there is inserted—

(15A) (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.

Termination of tenancy

65

After section 16 (leases not terminated by variation of terms, etc.) of the 1991 Act there is inserted—

(16A) (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.

Assignation and subletting of tenancy

66

After section 10 (power of landlord to enter on holding) of the 1991 Act there is inserted—

(10A) (1) A lease of an agricultural holding may be assigned by the tenant to any of the persons who would be entitled to succeed to his estate on intestacy by virtue of the Succession (Scotland) Act 1964 (c. 41) 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) 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) 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.

Notices to quit

67

(1) In section 22 (restriction on operation of notices to quit) of the 1991 Act, in paragraph (b) of subsection (2), for the words from “has” to the end there is substituted “ requires to be obtained, and has been obtained, under the enactments relating to town and country planning ”.

(2) In section 24 (consents for the purposes of section 22) of that Act—

(a) in subsection (2)—

(i) the words from “that” in the second place where it appears to the end become paragraph (a); and

(ii) after that paragraph there is added

; or (b) where the notice is to quit the whole of the holding, that use of the land for the purpose for which the landlord proposes to terminate the tenancy would not create greater economic and social benefits to the community than would exist were the tenancy not terminated.

; and

(b) after subsection (4) there is added—

(5) For the purposes of subsection (2)(b) above— (a) “the community”— (i) shall be defined by reference to the postcode unit (or postcode units) pertaining to the holding and the vicinity of the holding; and (ii) comprises the persons from time to time resident in that postcode unit (or any of those postcode units); (b) “economic benefits” shall be defined by reference to an increase, or the potential for increase, in employment or income; (c) “social benefits” shall be defined by reference to the likely— (i) sustaining of, or increase in, the population; and (ii) improvement of amenities and services. (6) In subsection (5)(a) above, “postcode unit” means an area, determined by the Registrar General for Scotland, in relation to which a single postcode is used to facilitate the identification of postal service delivery points in the area. (7) The Land Court shall, for the purposes of its determining the matters referred to in subsection (2)(b) above, have regard to such representations as it considers may assist in its consideration of those matters.

Restoration of agricultural holding following mineral exploitation

68

After section 29 (notice to quit part of holding to be valid in certain cases) of the 1991 Act there is inserted—

(29A) (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.

Good husbandry and conservation activities

69

(1) In subsection (2) of section 85 (interpretation) of the 1991 Act, after “shall” there is inserted “ , subject to subsections (2A) and (2B) below, ”.

(2) After that subsection there is inserted—

(2A) For the purposes of this Act, 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 may be prescribed. (2B) For the purposes of this Act, 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 as has been permitted under section 40 or 41 of the Agricultural Holdings (Scotland) Act 2003 (asp 11) is to be treated as being in accordance with the rules of good husbandry.

Part 6 — Rights of certain persons where tenant is a partnership

Rights of certain persons where tenant is a partnership

70

(1) Subsection (2) applies to—

(a) a 1991 Act tenancy if the lease constituting the tenancy is entered into on or after the coming into force of this section; and

(b) a tenancy under a lease constituting a short limited duration tenancy , a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy ,

where the tenant is a partnership.

(2) Where this subsection applies and—

(a) any partner is—

(i) the landlord or an associate of the landlord; or

(ii) a partnership or a company in which the landlord has a relevant interest; and

(b) there is any other partner,

subsections (3) and (4) apply.

(3) Where this subsection applies, any partner not mentioned in subsection (2)(a) may exercise or enforce any right of a tenant conferred by virtue of this Act or the 1991 Act as if the partner were the tenant in the partner’s own right.

(4) Where this subsection applies, if the tenancy purports to be terminated as a consequence of—

(a) the dissolution of the partnership—

(i) in accordance with the partnership agreement; or

(ii) due to the actings of any partner mentioned in subsection (2)(a);

(b) the renunciation of the tenancy by such a partner; or

subsection (5) applies.

(5) Where this subsection applies, notwithstanding the purported termination of the tenancy—

(a) the tenancy continues to have effect; and

(b) any partner not mentioned in subsection (2)(a) becomes the tenant (or a joint tenant) under the tenancy in the partner’s own right,

if the partner gives notice to the landlord in accordance with subsection (6).

(6) Notice is given in accordance with this subsection if—

(a) it is in writing;

(b) it is given within 28 days of the purported termination of the tenancy; and

(c) it states that the partner intends to become the tenant (or a joint tenant) under the tenancy in the partner’s own right.

(7) For the purposes of this section and section 72, a landlord has a relevant interest in a partnership or company if the landlord or an associate of the landlord is—

(a) a partner in the partnership;

(b) a partner in a partnership which forms part of the partnership;

(d) the holder of a standard security or floating charge over an interest in a tenancy where the partnership or the company is a partner in the tenant.

(8) For the purposes of this section and section 72, a person is an associate of a landlord if the person is—

(a) where the landlord is a partnership or a company, a partner in the landlord or, as the case may be, a shareholder of the landlord;

(b) where an associate of the landlord is a partnership or a company, a partner in or, as the case may be, a shareholder of that associate;

(d) a member of the landlord’s family.

(9) The Scottish Ministers may by order modify (either or both) subsections (7) and (8).

Meaning of “family”

71

(1) For the purposes of section 70(8)(d), who the members of a person’s family are is to be construed in accordance with subsections (2) and (3).

(2) A person (“AG”) is a member of another person’s family if—

(a) AG is the person’s spouse or civil partner or AG and the person live together as husband and wife or in a relationship which has the characteristics of the relationship between husband and wife except that AG and the person are of the same sex; or

(b) AG is the person’s parent, grandparent, child, grandchild, sibling, uncle, aunt, nephew, niece or cousin.

(3) For the purposes of subsection (2)(b)—

(a) a relationship by marriage or by virtue of civil partnership is to be treated as a relationship by blood;

(b) a relationship of the half-blood is to be treated as a relationship of the whole blood;

(i) the stepchild of the person, AG is to be treated as the person’s child;

(ii) the step-parent of the person, AG is to be treated as the person’s parent;

(d) if AG is brought up or treated by the person as if the person’s child, AG is to be treated as the person’s child.

(4) The Scottish Ministers may by order modify (any or all) subsections (1) to (3).

Rights of certain persons where tenant is a limited partnership

72

(1) Subsections (2) and (3) apply to a 1991 Act tenancy where the lease constituting the tenancy is entered into before the coming into force of this section and—

(a) the tenant is a limited partnership; and

(b) any limited partner is—

(i) the landlord or an associate of the landlord; or

(ii) a partnership or a company in which the landlord has a relevant interest.

(2) Where this subsection applies, any general partner may exercise or enforce any right of a tenant conferred by virtue of Part 2 of this Act as if the partner were the tenant in the partner’s own right ....

(3) Where this subsection applies and the tenancy purports to be terminated as a consequence of—

(a) the dissolution of the partnership by notice served on or after 16th September 2002 by a limited partner mentioned in subsection (1)(b);

(b) the renunciation of the tenancy on or after that date by such a partner; or

subsection (6) applies ....

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(6) Where this subsection applies, notwithstanding the purported termination of the tenancy—

(a) the tenancy continues to have effect; and

(b) any general partner becomes the tenant (or a joint tenant) under the tenancy in the partner’s own right,

if the general partner gives notice to the landlord within 28 days of the purported termination of the tenancy or within 28 days of the coming into force of this section (whichever is the later) stating that the partner intends to become the tenant (or a joint tenant) under the tenancy in the partner’s own right.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12) In this section, the expressions, “limited partnership”, “limited partner” and “general partner” are to be construed in accordance with the Limited Partnerships Act 1907 (c. 24).

Termination of tenancy continued under section 72

73

(1) Where this section applies, subsections (1) to (3) and (5) of section 21 (notice to quit and notice of intention to quit) of the 1991 Act do not apply in relation to the bringing of the tenancy to an end by the landlord.

(2) Subsections (4), (6) and (7) of that section apply in relation to subsections (3) to (5) as they apply in relation to subsections (1) to (3) and (5) of that section.

(3) The tenancy may be brought to an end by the landlord if the landlord gives a notice under this subsection to the tenant.

(4) Subject to subsection (7), a notice under subsection (3) must—

(a) be in writing and state that the tenant shall quit the land on the expiry of the stipulated endurance of the lease constituting the tenancy (or, where the lease has continued in force by tacit relocation, on the expiry of a period of continuation); and

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

(5) Subject to subsection (7), 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 stipulated endurance of the lease (or expiry of the period of continuation).

(6) The landlord may apply to the Land Court for an order under subsection (7).

(7) An order under this subsection is an order that, instead of the periods of time mentioned in subsections (4) and (5), such shorter periods as the Land Court may specify are to apply.

(8) The Land Court is to make such an order if (but only if) it is satisfied that—

(a) service of the notice mentioned in paragraph (a) of subsection (3) of section 72, or the thing mentioned in paragraph (b) or (c) of that subsection, occurred otherwise than for the purposes of depriving the tenant (being then a general partner) of any right deriving from section 72; and

(b) it is reasonable to make the order.

Application of right to buy provisions

74

The Scottish Ministers may by regulations—

(a) provide that Part 2, in its application in relation to—

(i) partnerships who are tenants; and

(ii) such partners of partnerships as may exercise or enforce any right of tenants conferred by that Part,

has effect with or subject to such modifications as the regulations may specify; and

(b) make such further provision in relation to such partnerships and partners as they consider necessary or expedient for the purposes of that Part.

Part 7 — Jurisdiction of the Land Court and the resolution of disputes

1991 Act tenancies

Jurisdiction of the Land Court

75

For section 60 (questions between landlord and tenant) of the 1991 Act there is substituted—

(60) (1) The Land Court shall have jurisdiction to hear and determine any of the matters referred to in subsection (2) below. (2) Those matters are— (a) whether a tenancy of an agricultural holding in relation to which this Act applies exists or has been terminated; (b) any question or difference between the landlord and tenant of such a holding arising out of the tenancy or in connection with the holding, whether such question or difference arises during the currency of or on or after the termination of the tenancy; (c) any claim by the landlord or tenant of such a holding against the other which arises, under this Act or under any rule of law, custom or agreement, on or out of the termination of the tenancy (or part thereof); (d) any other issue of fact or law relating to— (i) a tenancy of such a holding or any other type of agricultural tenancy; or (ii) agriculture, which the landlord or tenant reasonably require to have resolved. (3) Such matters include, in particular (and without prejudice to the generality of subsection (2) above), any question or difference between the landlord and tenant arising in relation to Part 2 of the Agricultural Holdings (Scotland) Act 2003 (asp 11) except any question or difference of fact relating to the determination of the price payable by the tenant for the purposes of that Part of that Act. (4) Such matters do not include any question as to— (a) who is entitled to succeed to the estate of a deceased person on intestacy by virtue of the Succession (Scotland) Act 1964 (c. 41); (b) the validity of— (i) any bequest; or (ii) any transfer, of an interest under the lease; or (c) whether any such transfer is in the best interests of the estate of a deceased person. (5) The Land Court shall also have jurisdiction to hear and determine any question or difference, between the tenant and any person with whom he has in pursuance of section 10A(1) of this Act entered into a contract assigning his interest under the lease, which arises out of or in connection with the assignation. (6) Any application to the Land Court for a matter to be determined by the Court under this Act may be made by either party or by them jointly. (7) In the application of this section to any question or difference arising in relation to Part 2 of the Agricultural Holdings (Scotland) Act 2003 (asp 11), “landlord” shall be construed as including a creditor in a standard security with a right to sell land (that expression being construed by reference to that Part of that Act) which comprises or forms part of an agricultural holding. (8) Any reference in this section to a landlord or tenant of an agricultural holding shall be construed as including a person who was formerly the landlord or tenant thereof. (9) Any other provision of an enactment which provides for the determination of a matter by the Land Court is without prejudice to this section.

Arbitrations etc.

76

For section 61 (arbitrations) of the 1991 Act there is substituted—

(61) (1) Subject to subsection (2) below, where this Act makes provision for any matter to be determined by the Land Court, the matter may, if the landlord and tenant so agree at or after the time when the matter arises, instead of being so determined, be determined by arbitration. (2) Subsection (1) above does not apply in relation to any matter which may be determined by the Land Court— (a) in pursuance of section 8(6), 11, 12, 22, 26, 32, 39, 41(1), 55(7) or 66(2) or (2A) of this Act; or (b) on appeal. (3) In this Act, other than in section 61A, “arbitration” includes any other method of resolving the matter; and “arbiter” shall be construed accordingly. (61A) (1) This section applies to any arbitration to which a matter is referred by the landlord and tenant under section 61(1) of this Act. (2) The agreement of the parties to refer the matter to arbitration shall have the effect of depriving each party of his right to— (a) have the matter heard (or any issue in relation to the matter determined) by the Land Court (other than on appeal); and (b) agree under section 61(1) of this Act to another method of resolving the matter. (3) It shall be for the landlord and tenant to agree whether the arbitration is conducted by— (a) a single arbiter; or (b) two arbiters (with or without an oversman), and the arbiter or, as the case may be, each arbiter, may be appointed by the parties or by a person nominated by them. (4) The procedure to be followed at arbitration (including any matters to be taken into account by the arbiter and the matters to be contained in his award) shall, subject to subsection (5) below, be as the parties agree or, in the absence of such agreement, as the arbiter considers appropriate. (5) Any provision of this Act that would apply to the Land Court as respects its consideration or determination of any matter had the matter not been referred to arbitration shall apply as respects the consideration or determination of the matter by arbitration. (6) Any party to the arbitration may appeal to the Land Court against the arbiter’s award on a question of law within 28 days of the award; and in an appeal under this subsection the Court may— (a) quash, confirm or vary the award or any part of it; and (b) where the Court quashes the award or any part of it— (i) remit the case to the arbiter for further procedure; and (ii) direct the arbiter on any question of law relevant to the case. (61B) Any term of— (a) a lease of an agricultural holding in relation to which this Act applies; or (b) any agreement in connection with such a lease (other than an agreement under section 61(1) of this Act), that makes provision restricting any right of a landlord or tenant to apply to the Land Court under this Act to have a matter determined by the Court shall, in so far as it makes that provision, be null and void.

Short limited duration tenancies and limited duration tenancies etc.

Resolution of disputes by Land Court

77

(1) The Land Court has jurisdiction to hear and determine any of the matters referred to in subsection (2).

(2) Those matters are—

(a) whether—

(i) a short limited duration tenancy;

(ii) a limited duration tenancy; ...

(iia) a modern limited duration tenancy, or

(iib) a repairing tenancy,

(iii) a tenancy to which section 3 applies,

exists or has been terminated;

(b) any question or difference between the landlord and tenant arising out of or in connection with any such tenancy, whether the question or difference arises during the currency of or on or after the termination of the tenancy;

(c) any claim by the landlord or tenant of any such tenancy against the other which arises, by virtue of this Act or under any rule of law, custom or agreement, on or out of the termination of the tenancy or of any part of it;

(d) any other issue of fact or law relating to—

(i) any such tenancy or a 1991 Act tenancy; or

(ii) agriculture,

which the landlord or tenant reasonably require to have resolved.

(3) Such matters do not include any question as to—

(a) who is entitled to succeed to the estate of a deceased person on intestacy by virtue of the Succession (Scotland) Act 1964 (c. 41);

(b) the validity of

(i) any bequest; or

(ii) any transfer,

of any interest under the lease constituting the tenancy; or

(4) The Land Court also has jurisdiction to hear and determine any question or difference, between the tenant under a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy and any person with whom the tenant has in pursuance of section 7(1) or, as the case may be, 7B(1), 7D(1) or 7D(7) entered into a contract assigning the tenant’s interest under the lease constituting the tenancy, which arises out of or in connection with the assignation.

(5) Any application to the Land Court for a matter to be determined by the Court by virtue of this Act may be made by either party or by them jointly.

(6) Any reference in this section to a landlord or tenant of a tenancy is to be construed as including a person who was formerly the landlord or tenant of the tenancy.

(7) Any other provision of an enactment which provides for the determination of any matter by the Land Court is without prejudice to this section.

Agreement to refer matters to arbitration

78

(1) Subject to subsection (2), where by virtue of this Act or by virtue of section 116 of the Land Reform (Scotland) Act 2016 any matter may be determined by the Land Court, the matter may, if the landlord and tenant so agree at or after the time when the matter arises, instead of being so determined, be determined by—

(a) arbitration; or

(b) any other method of resolving the matter.

(2) Subsection (1) does not apply in relation to any matter which may be determined by the Land Court—

(a) in pursuance of section 21 or 22; or

(b) on appeal.

Arbitration: procedure etc.

79

(1) This section applies to any arbitration to which a matter is referred by the landlord and tenant under section 78(1)(a).

(2) The agreement of the parties to refer the matter to arbitration has the effect of depriving each party of the right to—

(a) have the matter heard (or any issue in relation to the matter determined) by the Land Court (other than on appeal); and

(b) agree under section 78(1)(b) to another method of resolving the matter.

(3) It is for the landlord and tenant to agree whether the arbitration is conducted by—

(a) a single arbiter; or

(b) two arbiters (with or without an oversman),

and the arbiter or, as the case may be, each arbiter may be appointed by the parties or by a person nominated by them.

(4) The procedure to be followed at arbitration (including any matters to be taken into account by the arbiter and the matters to be contained in the arbiter’s award) is, subject to subsection (5), to be as the parties agree or, in the absence of such agreement, as the arbiter considers appropriate.

(5) Any provision by virtue of this Act or by virtue of section 116 of the Land Reform (Scotland) Act 2016 that would apply to the Land Court as respects its consideration or determination of any matter had the matter not been referred to arbitration applies as respects the consideration or determination of the matter by arbitration.

(6) Any party to the arbitration may appeal to the Land Court against the arbiter’s award on a question of law within 28 days of the award; and in an appeal under this subsection the Court may—

(a) quash, confirm or vary the award or any part of it; and

(b) where the Court quashes the award or any part of it—

(i) remit the case to the arbiter for further procedure; and

(ii) direct the arbiter on any question of law relevant to the case.

Other provisions as to the resolution of disputes

80

(1) Section 62 (claims on termination of tenancy) of the 1991 Act applies to any claim referred to in section 77(2)(c) as it does to any claim referred to in section 60(2)(c) of that Act.

(2) Section 65 (recovery of compensation and other sums due) of that Act applies to any award or agreement by virtue of this Act as it does to any award or agreement under that Act.

(3) In section 66 (power to enable demand to remedy breach to be modified) of that Act, subsection (1) applies in relation to a matter which may be determined by the Land Court by virtue of this Act as it does in relation to a matter which may be determined by the Land Court under that Act.

Clauses in leases as to resolution of disputes

81

Any term of—

(a) a lease constituting a short limited duration tenancy, a limited duration tenancy , a modern limited duration tenancy, a repairing tenancy or a tenancy to which section 3 applies; or

(b) any agreement in connection with such a lease (other than an agreement under section 78(1)),

that makes provision restricting any right of the landlord or tenant to apply to the Land Court by virtue of this Act or by virtue of section 116 of the Land Reform (Scotland) Act 2016 to have a matter determined by the Court is, so far as it makes that provision, of no effect.

Jurisdiction of the Land Court: further provision

Amendment of the Scottish Land Court Act 1993

82

In the Scottish Land Court Act 1993 (c. 45)—

(a) in subsection (6) of section 1 (the Land Court)—

(i) after the word “enactment” there is inserted “ , or under the Agricultural Holdings (Scotland) Act 2003 (asp 11) ”;

(ii) for the words “1993,” there is substituted “ 1993 or ”;

(iii) the words “or the Agricultural Holdings (Scotland) Act 1991” are repealed; and

(iv) after “any” in the third place where it appears there is inserted “ such ”;

(b) after subsection (7) of that section there is inserted—

(7A) Subsection (7) above does not apply in respect of proceedings in connection with any matter which may be determined by the Land Court by virtue of the Agricultural Holdings (Scotland) Act 1991 (c. 55) or the Agricultural Holdings (Scotland) Act 2003.

; and

(i) in sub-paragraph (2) of paragraph 6, after the word “shall” in the first place where it appears there is inserted “ , subject to sub-paragraph (3) below ”; and

(ii) after that sub-paragraph there is inserted—

(3) There shall be no such review if the Court, when making a delegation in pursuance of this paragraph in relation to a matter before it in pursuance of the Agricultural Holdings (Scotland) Act 1991 (c. 55) or the Agricultural Holdings (Scotland) Act 2003 (asp 11), so orders.

Power to amend Land Court’s jurisdiction

83

The Scottish Ministers may by order modify (any or all)—

(a) sections 77(2) and 78(2); and

(b) sections 60(2) and 61(2) (which make provision as to the resolution of disputes) of the 1991 Act.

Power of Land Court to grant remedies etc.

84

(1) Where the Land Court has by virtue of the 1991 Act or this Act determined any matter, it may, in relation to the rights of any party, make such order or grant such remedy as it considers appropriate and, in particular, it may make or grant (any or all)—

(a) a decree of interdict (including an interim decree);

(b) an order ad factum praestandum or an order of specific implement (including in either case an interim order);

(d) an order of reduction or rectification;

(e) an order of removal or ejection (but not an interim order);

(f) an order for damages or other substitutionary redress;

(g) a declarator.

(2) Where the Land Court makes an order under subsection (1)(b) in relation to a failure of the landlord to fulfil any obligation the landlord has towards the tenant in respect of fixed equipment, the Court—

(a) must specify the date by which the landlord is to comply with the order; and

(b) may, following an application by the landlord, specify a later date (in place of the date specified under paragraph (a)) by which the landlord is to comply with the order if it is satisfied that the landlord intends to comply with the order but reasonably requires more time to do so.

(3) Where a matter before the Land Court by virtue of the 1991 Act or this Act concerns the removal or ejection of the tenant from the land to which the tenancy relates, the Court may order the finding of caution, or the giving of such undertaking as the Court considers appropriate, in relation to any liability of the landlord or tenant to the other which may arise from the landlord or, as the case may be, tenant remaining on the land pending the Court’s determination of the matter.

Remit from Land Court to sheriff or Court of Session

85

(1) Where—

(a) a matter is before the Land Court for determination by virtue of the 1991 Act or this Act; and

(b) an action in respect of the matter could competently have been brought before a sheriff or in the Court of Session,

the Land Court may (at its own instance or following a request under subsection (2)(a) below) remit the case to the sheriff within whose jurisdiction the action could have been brought, or to the Court of Session, if it considers that to be appropriate.

(2) Any person with an interest in a matter that is before the Land Court for determination under this Act may make an application—

(a) to the Land Court requesting that it remit the matter to the Court of Session under subsection (1) above; or

(b) to the Court of Session craving it to require the Land Court so to remit the matter.

(3) Where an application is made under subsection (2)(b) above, the Court of Session may require the Land Court to remit the matter to it if it considers that it would be appropriate for it to determine the matter.

Remit to Land Court by sheriff or Court of Session

86

(1) In the Sheriff Courts (Scotland) Act 1971 (c. 58), after subsection (2C) of section 37 (remits) there is inserted—

(2D) In the case of any action in the sheriff court where the matter to which the action relates could competently be determined by the Land Court by virtue of the Agricultural Holdings (Scotland) Act 1991 (c. 55) or the Agricultural Holdings (Scotland) Act 2003 (asp 11), the sheriff may (of his own accord or on the motion of any of the parties) at any stage remit the case to the Land Court if he is of the opinion that it is appropriate to do so.

(2) Where an action is before the Court of Session and the matter to which the action relates could competently be determined by the Land Court by virtue of the 1991 Act or this Act, it may (at its own instance or on the application of any party to the action) remit the case to the Land Court if it considers that to be appropriate.

Transmission of case where contingency

87

(1) The Land Court may, on an application by any of the parties, if it considers that there is contingency between a cause depending before the sheriff and a matter before the Court for determination by virtue of the 1991 Act or this Act, grant warrant to the clerk of the sheriff court for transmission of the case to the Land Court.

(2) In the Court of Session Act 1988 (c. 36), after subsection (2) of section 33 (transmissions to Court on ground of contingency) there is inserted—

(3) The Court may, on an application by any of the parties, if it is of the opinion that there is contingency between a matter before the Land Court for determination by virtue of the Agricultural Holdings (Scotland) Act 1991 (c. 55) or the Agricultural Holdings (Scotland) Act 2003 (asp 11) and a cause depending before the Court, grant warrant to the clerk of the Land Court for transmission of the case to the Court from the Land Court.

Appeal from Land Court to Court of Session

88

(1) Subject to subsection (2), any party to a matter determined by the Land Court by virtue of the 1991 Act or this Act may appeal to the Court of Session against the determination on a question of law within 28 days of the determination; and in an appeal under this section the Court of Session may—

(a) quash, confirm or vary the determination or any part of it; and

(b) where the Court quashes the determination or any part of it—

(i) remit the case to the Land Court for further procedure; and

(ii) direct the Land Court on any question of law relevant to the case.

(2) A determination by the Land Court in an appeal may not be appealed against under subsection (1).

(3) The decision of the Court of Session in any appeal made under subsection (1) is final.

Expenses in sheriff court and Court of Session

89

Where the matter to which an action in the sheriff court or before the Court of Session relates could competently be or have been determined by the Land Court by virtue of the 1991 Act or this Act, the sheriff or, as the case may be, the Court must, without prejudice to any rule of law, take account of that fact in deciding what (if any) expenses to award.

Conduct of arbiter and setting aside of arbiter’s award

90

(1) Any person with an interest in a matter determined by an arbitration to which section 61A of the 1991 Act applies or conducted by virtue of section 78(1)(a) of this Act who has reasonable grounds for believing that—

(a) the arbiter has misconducted himself during the course of the arbitration; or

(b) the arbitration has been improperly procured,

may make an application to the Land Court for an order under subsection (2).

(2) Where, on such an application, the Land Court is satisfied that—

(a) the arbiter has so misconducted himself, or the arbitration has been improperly procured, it may make an order setting aside the arbiter’s award;

(b) the arbiter has so misconducted himself, it may make an order removing the arbiter.

Part 8 — General provisions

Orders and regulations

91

(1) Any power of the Scottish Ministers to make orders or regulations under this Act is exercisable by statutory instrument.

(2) Any such power includes power—

(a) to make such incidental, supplemental, consequential, transitional, transitory or saving provision as the Scottish Ministers consider necessary or expedient; and

(b) to make different provision for different purposes.

(3) A statutory instrument containing—

(a) an order under section 18(4)(b)(ii)..., 72(11) or, except where subsection (5) applies, section 92; or

(b) regulations under section 5B(3), 9A(3), 18A(4)(b)(ii), 26(2), 38A(4)(c), 38B(6)(e), 38L(4)(c) or 38P(2) ,

is subject to annulment in pursuance of a resolution of the Parliament.

(4) A statutory instrument containing—

(a) an order under section 27(5), 28(5), 70(9), 71(4) or 83; or

(b) regulations under section 9B(3), 9C(6), 36(7) , 38C(1), 38D(4), 38M(1), 38O(4), 59A , 74 or 74A,

is not made unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.

(5) A statutory instrument containing an order under section 92 which amends an Act is not made unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.

Ancillary provision

92

(1) The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes of or in consequence of this Act.

(2) An order under subsection (1) may, in particular, amend provisions of any enactment which apply to 1991 Act tenancies or land held under 1991 Act tenancies so as to apply them to short limited duration tenancies , limited duration tenancies, modern limited duration tenancies and repairing tenancies or land held under such tenancies.

Interpretation

93

In this Act (unless the context requires otherwise)—

“the 1991 Act” means the Agricultural Holdings (Scotland) Act 1991 (c. 55);

“1991 Act tenancy” is to be construed in accordance section 1;

“agriculture” is to be construed in accordance with section 85 (interpretation) of the 1991 Act; and “agricultural” and “non-agricultural” are to be construed accordingly;

“agricultural land” means land used for agriculture for the purposes of a trade or business;

“fixed equipment” is to be construed by reference to section 85 of the 1991 Act;

“the Land Court” means the Scottish Land Court;

“landlord” means any person for the time being entitled to receive the rents under a lease constituting a tenancy and includes the executor, assignee, legatee, disponee, guardian or legal representative (within the meaning of Part I of the Children (Scotland) Act 1995 (c. 36)) of a landlord or the trustee or interim trustee in the sequestration, under the Bankruptcy (Scotland) Act 2016, of a landlord's estate;

“limited duration tenancy” means a tenancy—created by virtue of section 5(1), orconverted by virtue of section 5(2), (3) or (4),before the repeal of that section by section 85(2) of the Land Reform (Scotland) Act 2016,

“modern limited duration tenancy” is to be construed in accordance with section 5A,

“the Parliament” means the Scottish Parliament;

“repairing tenancy” is to be construed in accordance with section 5C,

“short limited duration tenancy” is to be construed in accordance with section 4;

“tenant” means the holder of land under a tenancy constituted by a lease and includes the executor, assignee, legatee, disponee, guardian or legal representative (within the meaning of Part I of the Children (Scotland) Act 1995) of a tenant or the trustee or interim trustee in the sequestration, under the Bankruptcy (Scotland) Act 2016, of a tenant's estate;

“termination”, in relation to a tenancy, means the termination of the lease constituting the tenancy.

Amendments to enactments

94

The schedule, which makes amendments to enactments in consequence of this Act, has effect.

Short title, Crown application and commencement

95

(1) This Act may be cited as the Agricultural Holdings (Scotland) Act 2003.

(2) This Act binds the Crown.

(3) The provisions of this Act, except this section and sections 91, 92 and 93, come into force on such day as the Scottish Ministers may by order appoint.

(4) Different days may be so appointed for different provisions and for different purposes.

SCHEDULE

Sheriff Courts (Scotland) Act 1907 (c. 51)

1

After section 37 (notice of termination of tenancy) of the Sheriff Courts (Scotland) Act 1907 there is inserted—

(37A) The provisions of this Act relating to removings (including summary removings) shall not apply to or in relation to short limited duration tenancies or limited duration tenancies within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11).

Succession (Scotland) Act 1964 (c. 41)

2

(1) In section 16 (provisions relating to leases) of the Succession (Scotland) Act 1964—

(a) in subsection (2), at the beginning there is inserted “ Subject to subsection (4A), ”;

(b) in subsection (3)—

(i) at the beginning there is inserted “ Subject to subsection (4C), ”; and

(ii) in paragraph (b), for the words “sheriff on summary application by” there is substituted “ relevant court on the application of ”;

(i) for the words “to an arbiter to determine” there is substituted “ for the determination of ”;

(ii) for the words from “Land” in the second place where it appears to “award” there is substituted “ order or determination shall not be ”; and

(iii) the words “the court or the arbiter is satisfied that” are repealed;

(d) in subsection (8), after the word “Act” in the second place where it appears there is inserted " “ or, as the case may be, section 21(2) and (3) of the 2003 Act, ”;

(e) after that subsection there is inserted—

(8A) For the purposes of subsection (3)(b) above, the “relevant court” is— (a) in the case of an interest under a lease constituting a 1991 Act tenancy, the Land Court; and (b) in any other case, the sheriff, and an application to the sheriff in any such other case shall be by summary application.

; and

(f) in subsection (9)—

(i) in the definition of “agricultural lease”, for the words from “or” in the first place where it appears to the end there is substituted “ , or a lease of a croft within the meaning of section 3(1) of the Act of 1955, or a lease constituting a 1991 Act tenancy, or a lease constituting a short limited duration tenancy or a limited duration tenancy ”;

(ii) after the definition of “the 1991 Act” there is inserted—

“the 2003 Act” means the Agricultural Holdings (Scotland) Act 2003 (asp 11);

; and

(iii) at the end there is inserted—

“1991 Act tenancy”, “short limited duration tenancy” and “limited duration tenancy” shall be construed in accordance with the 2003 Act.

(2) In section 29 (right of tenant to bequeath interest under lease) of that Act, in subsection (2), after the words “1991” there is inserted “ or section 21 of the Agricultural Holdings (Scotland) Act 2003 (asp 11) ”.

Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35)

3

In paragraph 5 of Schedule 1 to the Conveyancing and Feudal Reform (Scotland) Act 1970 (land obligations not subject to variation or discharge under section 1 of that Act)—

(a) the word “of” in the first place where it appears is repealed;

(b) for paragraph (a) there is substituted—

(a) constituting a 1991 Act tenancy, within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11); (aa) constituting a short limited duration tenancy or a limited duration tenancy, within the meaning of that Act;

; and

Land Tenure Reform (Scotland) Act 1974 (c. 38)

4

In section 8 (which makes provision concerning property let under certain leases) of the Land Tenure Reform (Scotland) Act 1974, in subsection (5), for paragraph (a) there is substituted—

(a) the land comprised in a lease constituting a 1991 Act tenancy, within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11); (aa) the land comprised in a lease constituting a short limited duration tenancy or a limited duration tenancy, within the meaning of that Act;

Matrimonial Homes (Family Protection) (Scotland) Act 1981 (c. 59)

5

In section 13 (transfer of tenancy) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981—

(a) in subsection (7), for paragraph (b) there is substituted—

(b) is on or pertains to land comprised in an agricultural lease;

; and

(b) in subsection (8), for the definition of “agricultural holding” there is substituted—

“agricultural lease” means a lease constituting a 1991 Act tenancy within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11) or a lease constituting a limited duration tenancy or a short limited duration tenancy (within the meaning of that Act);

Rent (Scotland) Act 1984 (c. 58)

6

In section 25(1) (interpretation) of the Rent (Scotland) Act 1984, in the definition of “statutorily protected tenant”, at the end there is added “ , or a limited duration tenancy (within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11)). ”.

Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73)

7

In section 7 (interpretation of sections 4 to 6) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985—

(a) in subsection (1)—

(i) in paragraph (b), the words “an agricultural holding,”, and the word “or” immediately preceding that paragraph, are repealed; and

(ii) after that paragraph there is inserted

; or (c) where the lease is an agricultural lease.

; and

(b) in subsection (2), for the definition of “agricultural holding” there is substituted—

“agricultural lease” means a lease constituting a 1991 Act tenancy within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11) or a lease constituting a short limited duration tenancy or a limited duration tenancy (within the meaning of that Act);

Agriculture Act 1986 (c. 49)

8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The 1991 Act

11

The 1991 Act is amended as follows.

12

In section 4 (written leases and the revision of certain leases)—

(a) in subsection (1), for the word “arbitration” there is substituted “ the Land Court ”;

(b) in subsection (2)—

(i) for the words “arbiter shall by his award” there is substituted “ Land Court shall in its determination ”; and

(ii) for the word “arbiter” in the second place where it appears there is substituted “ Land Court ”;

(c) in subsection (3), for the words “arbiter may include in his award” there is substituted “ Land Court may include in its determination ”; and

(d) in subsection (4)—

(i) for the words “award of an arbiter” there is substituted “ determination of the Land Court ”; and

(ii) for the word “award” in the second and third places where it appears there is in each case substituted “ determination ”.

13

In section 5 (fixed equipment and insurance premiums), subsection (5) is repealed.

14

In section 9 (arbitration as to permanent pasture)—

(a) in subsection (1), for the words from “landlord” to “of” in the fifth place where it appears, there is substituted “ Land Court may determine ”;

(b) in subsection (2), for the words from the beginning to “award” there is substituted “ The Land Court may in its determination ”; and

(i) for the word “arbiter” there is substituted “ Land Court ”; and

(ii) for the words “he may also by his award” there is substituted “ it may also ”.

15

In section 13 (variation of rent)—

(a) in subsection (1)—

(i) for the words from “by” in the first place where it appears to “of” in the third place where it appears there is substituted “ have determined by the Land Court ”; and

(ii) the words from “, and” to the end are repealed;

(b) in subsection (2), for the words from the beginning to “arbiter” there is substituted “ In relation to such a question, the Land Court ”;

(d) in subsection (7), for the word “arbiter” there is substituted “ Land Court ”; and

(e) in subsection (8), for the word “arbitration” there is substituted “ the Land Court ”.

16

For section 14 (arbitrations under sections 4 and 5) substitute—

(14) Where it appears to the Land Court— (a) that, by reason of any provision which it is required by section 4 of this Act to include in its determination; or (b) that, by reason of any provision included in its determination on any question as to the liability of a landlord or tenant under section 5 of this Act, it is equitable that the rent of the holding should be varied, it may vary the rent accordingly.

17

In section 15 (increase of rent for certain improvements by landlord), subsection (3) is repealed.

18

In section 19 (payments for implements, etc., sold on quitting), subsection (3) is repealed.

19

In section 20 (removal of tenant for non-payment of rent)—

(a) in subsection (1), for “sheriff court” there is substituted “ Land Court ”;

(b) in subsection (2)—

(i) for “sheriff” there is substituted “ Land Court ”; and

(ii) for “his” there is substituted “ its ”; and

20

In section 21 (notice to quit and notice of intention to quit), in subsection (1), after the word “below” there is inserted “ and to sections 2 and 73 of the Agricultural Holdings (Scotland) Act 2003 (asp 11) ”.

21

In section 23 (consent by Land Court or arbitration on notices to quit)—

(a) in subsection (2), for the word “arbitration” there is substituted “ the Land Court ”;

(b) in subsection (3)—

(i) for the words “the award of the arbiter in an arbitration” there is substituted “ the determination of the Land Court ”; and

(ii) for the words “arbiter’s award” there is substituted “ Land Court’s determination ”;

(i) for the words “an arbitration” there is substituted “ a determination ”; and

(ii) for the words from “arbiter's” to the end there is substituted “ Land Court’s determination ”; and

(d) in subsection (5), for the words from “award” to “arbitration” there is substituted “ determination ”.

22

In section 31 (reduction of rent where tenant dispossessed of part of holding)—

(a) in subsection (1), for the word “arbitration” there is substituted “ the Land Court ”; and

(b) in subsection (2), for the word “arbiter” there is substituted “ Land Court ”.

23

In section 32 (further restrictions on operation of certain notices to quit)—

(a) in subsection (3) for the word “arbitration” there is substituted “ the Land Court ”;

(b) in subsection (4)—

(i) in paragraph (b), for the word “arbitration” there is substituted “ Land Court’s determination ”; and

(ii) in paragraph (c), for the words “arbiter’s award” there is substituted “ Land Court’s determination ”; and

24

In section 34(6) (right to compensation for improvements), for the word “arbiter” there is substituted “ Land Court ”.

25

In section 36(4) (amount of compensation), for the word “arbiter” there is substituted “ Land Court ”.

26

In section 37(1) (consent necessary for some improvements), the words “as to compensation or otherwise” are repealed.

27

In section 41 (direction by Land Court that holding be treated as market garden), in subsection (2), for the word “arbitration” there is substituted “ the Land Court ”.

28

In section 43 (compensation for disturbance)—

(a) in subsection (3), for the words “of an arbitration to determine” there is substituted “ arising from the determination of ”; and

(b) in subsection (5), for the words “arbiter finds to be” there is substituted “ Land Court determines as ”.

29

In section 46 (compensation for failure to repair or maintain fixed equipment)—

(a) in subsection (2) for the word “arbitration” there is substituted “ the Land Court ”; and

(b) in subsection (3)—

(i) for the word “arbitration” there is substituted “ the Land Court ”; and

(ii) for the word “award” there is substituted “ determination ”.

30

In section 49 (compensation provisions to apply to parts of holdings in certain cases), in subsection (2) for the words “arbiter, in assessing” there is substituted “ Land Court, in determining ”.

31

In section 50 (determination of claims for compensation where holding is divided)—

(a) for the word “arbiter” in each place where it appears there is substituted “ Land Court ”;

(b) for the word “award” there is substituted “ determination ”; and

32

In section 52 (compensation for damage by game), for the word “arbitration” in each place where it appears there is substituted “ the Land Court ”.

33

In section 55 (provisions supplementary to section 54), in subsection (7) for the words from “the” in the fourth place where it appears to the end there is substituted “ it shall be determined by the Land Court ”.

34

In section 62 (claims on termination of tenancy)—

(a) for subsection (1) there is substituted—

(1) This section applies to any claim referred to in section 60(2)(c) of this Act.

; and

(b) in subsection (5), for the words from “, an” to the end there is substituted—

(a) an application has been made to the Land Court; or (b) an arbiter has been appointed or any application has been made for the appointment of an arbiter, to determine the claim

35

Sections 63 and 64 are repealed.

36

In section 66 (power to enable demand to remedy breach to be modified)—

(a) in subsection (1)—

(i) for the word “arbitration” there is substituted “ the Land Court ”; and

(ii) for the word “arbiter” in each place where it appears there is substituted “ Land Court ”;

(b) in subsection (2)—

(i) for the words “an arbiter” there is substituted “ the Land Court ”; and

(ii) the words “the arbiter or” and “by the arbiter” are repealed;

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Agricultural Holdings (Scotland) Act 2003

Consent required for compensation in certain cases

48

Notice required for certain improvements

49

Chapter 2 — Compensation for disturbance and diversification etc.

1991 Act tenancies

Compensation for disturbance and for damage by game

50

Compensation arising as a result of diversification etc.

51

New types of tenancy

Compensation for disturbance

52

Compensation for other particular things

53

Chapter 3 — Compensation where compulsory acquisition of land

Compensation where compulsory acquisition of land

54

Chapter 4 — Miscellaneous provision as to compensation

Right to compensation for yielding vacant possession

55

No right to penal rent etc.

56

Provision as to parts of land and divided land

57

Compensation not payable where direction as to permanent pasture

58

Extent to which compensation recoverable under agreements

59

Part 5 — Miscellaneous amendments to the 1991 Act

Agreements as to fixed equipment

60

Making of records

61

Interdict in certain cases

62

Variation of rent

63

Tenant’s right to withhold rent

64

Termination of tenancy

65

Assignation and subletting of tenancy

66

Notices to quit

67

Restoration of agricultural holding following mineral exploitation

68

Good husbandry and conservation activities

69

Part 6 — Rights of certain persons where tenant is a partnership

Rights of certain persons where tenant is a partnership

70

Meaning of “family”

71

Rights of certain persons where tenant is a limited partnership

72

Termination of tenancy continued under section 72

73

Application of right to buy provisions

74

Part 7 — Jurisdiction of the Land Court and the resolution of disputes

1991 Act tenancies

Jurisdiction of the Land Court

75

Arbitrations etc.

76

Short limited duration tenancies and limited duration tenancies etc.

Resolution of disputes by Land Court

77

Agreement to refer matters to arbitration

78

Arbitration: procedure etc.

79

Other provisions as to the resolution of disputes

80

Clauses in leases as to resolution of disputes

81

Jurisdiction of the Land Court: further provision