Land Reform (Scotland) Act 2016

(5B) (1) SNH must, before the expiry of the period mentioned in subsection (4), carry out a review into the extent to which the code of practice on deer management— (a) is being complied with by owners and occupiers of land, and (b) is effective in promoting sustainable deer management. (2) SNH must, following a review under subsection (1), submit a report to the Scottish Ministers— (a) setting out SNH's views on the extent to which the code— (i) has been complied with, and (ii) has been effective in promoting sustainable deer management, (b) including such recommendations as SNH consider appropriate. (3) The Scottish Ministers must lay before the Scottish Parliament a report submitted to them under subsection (2). (4) The period referred to in subsection (1) is— (a) the period of 3 years beginning with the day on which section 79 of the Land Reform (Scotland) Act 2016 comes into force, (b) each subsequent period of 3 years beginning with the day on which the Scottish Ministers lay, under subsection (3), the report submitted to them under subsection (2).

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Deer management plans

80

• (1) The Deer (Scotland) Act 1996 is amended as follows.

• (2) In section 5A (code of practice on deer management), in subsection (2)(c), after “may” insert “ require a deer management plan to be prepared, ”.

• (3) The italic heading before section 6 becomes “ Deer management plans, control agreements and control schemes ”.

• (4) After section 6 insert—

(6A) (1) If SNH, having had regard to the code of practice on deer management, is satisfied that both Conditions A and B are met, it may give notice to such owners and occupiers of land as it considers to be substantially interested requiring them— (a) to prepare a plan (a “deer management plan”) setting out— (i) the measures that those owners and occupiers consider should be taken, (ii) the time limit for taking those measures, (iii) who is to take those measures, and (iv) any other matters which appear to SNH to be necessary, and (b) to submit the deer management plan to SNH for its approval. (2) Condition A is met if on any land— (a) deer or steps taken or not taken for the purposes of deer management have caused, are causing, or are likely to cause— (i) damage to woodland, to agricultural production, including any crops or foodstuffs, to the welfare of deer or, whether directly or indirectly, to the natural heritage generally, (ii) damage to public interests of a social, economic or environmental nature, or (iii) injury to livestock, whether by serious overgrazing of pastures, competing with any such livestock for supplementary feeding, or otherwise, or (b) deer have become a danger or a potential danger to public safety. (3) Condition B is met if measures require to be taken in relation to the management of deer— (a) for the prevention of further such damage or injury, (b) for the remedying of such damage, or (c) for the prevention of such danger or potential danger. (4) In subsection (2)(a)(i), “the natural heritage” has the same meaning as in section 7(2). (5) A deer management plan is to be submitted to SNH no later than— (a) 12 months after the date on which SNH gives notice under subsection (1), or (b) such later date as SNH may specify. (6) SNH may approve a deer management plan (with or without modification) or reject it. (7) Before approving a deer management plan with modifications, SNH must consult the owners and occupiers of land who submitted the plan on the proposed modifications. (8) A deer management plan may be amended until SNH decides to approve or reject it.

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• (5) In section 7 (control agreements), after subsection (4) insert—

(4A) Subsection (4) also applies where subsection (4B) applies. (4B) This subsection applies where— (a) SNH has given notice under section 6A(1) and either— (i) the date specified under section 6A(5) has passed and a deer management plan has not been submitted to SNH, (ii) a deer management plan has been submitted to SNH but SNH has rejected it, or (iii) a deer management plan has been approved by SNH but the measures set out in the plan have not been taken, and (b) SNH is satisfied that the conditions referred to in section 6A(1) continue to be met.

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Power to require return on number of deer planned to be killed

81

• (1) The Deer (Scotland) Act 1996 is amended as follows.

• (2) In section 16 (service of notices), in subsection (1A), for “and 40(1)” substitute “ , 40(1) and 40A(1) ”.

• (3) In section 17A (register of persons competent to shoot deer)—

• (a) in subsection (2)(a)(xiii), for “section 40” substitute “ sections 40 and 40A ”,

• (b) in subsection (6)—

• (i) in paragraph (a), after “return” insert “ within the meaning given by subsection (7)(a) or (b)(i) ”,

• (ii) “or” immediately after paragraph (a) is repealed,

• (iii) after paragraph (a) insert—

(aa) fails without reasonable cause to submit a cull return within the meaning given by subsection (7)(b)(ii) in accordance with regulations made under subsection (1)(d) above, or

,

• (iv) in paragraph (b), for “so submitted” substitute “ referred to in paragraph (a) ”,

• (c) in subsection (7), for paragraph (b) substitute—

(b) when required to be submitted by an owner or occupier of land, means— (i) a written statement showing the number of deer of each species and of each sex which to his knowledge has been taken or killed on the land, or (ii) a written statement showing the number of deer of each species and of each sex which are planned to be killed on the land in the following year.

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• (4) After section 40 insert—

(40A) (1) SNH may, for the purposes of any of its deer functions, by notice served on the owner or occupier of any land require the owner or occupier to make a return, in such form as SNH may require, showing how many deer of each species and of each sex are planned to be killed on the land in the following year. (2) A notice served under subsection (1) must specify a period, of not more than 1 year immediately following the date of service of the notice, for which the return must be completed. (3) Any person on whom a notice under subsection (1) has been served who fails without reasonable cause to make the required return within 36 days after the service of the notice commits an offence.

.

• (5) In schedule 3 (penalties)—

• (a) in the entry relating to section 17A(6), in column 1, for “17A(6)” substitute “ 17A(6)(a) or (b) ”,

• (b) after that entry, insert—

17A(6)(aa)	Failure to submit cull return	a fine of level 3 on the standard scale

,

• (c) after the entry relating to section 40(4), insert—

“40A(3)	Failure to make return of number of deer planned to be killed.	a fine of level 3 on the standard scale.

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Increase in penalty for failure to comply with control scheme

82

In schedule 3 of the Deer (Scotland) Act 1996, in the entry relating to section 13(1) (failure to comply with control scheme), in column 3, for “level 4 on the standard scale” substitute “ £40,000 ”.

PART 9 — Access rights

Core paths

Core paths plans

83

• (1) The Land Reform (Scotland) Act 2003 is amended as follows.

• (2) In section 18 (core paths plan: further procedure)—

• (a) in subsection (9), “(3) or” is repealed,

• (b) in subsection (10), for “confirm” substitute “ adopt ”.

• (3) In section 20 (review and amendment of core paths plan)—

• (a) for subsection (1) substitute—

(1) A local authority— (a) must review the plan adopted under section 18 (or that plan as amended under this section or section 20C) if Ministers require them to do so, (b) may review such a plan if they consider it appropriate to do so for the purpose of ensuring that the core paths plan continues to give the public reasonable access throughout their area.

,

• (b) for subsection (5) substitute—

(5) On adopting the amended plan under subsection (4), the local authority must— (a) amend the list of core paths compiled under section 18(8) to show the effect of the stopping up or diversion, (b) keep the amended plan, any maps it refers to and the list available for public inspection and for sale at a reasonable price, and (c) send a copy of each of those documents to Ministers.

,

• (c) in subsection (7), for “Sections 17(3) and (4) and 18 above” substitute “ Subsections (3) and (4) of section 17 ”.

• (4) After section 20 insert—

(20A) (1) Where, following a review of a plan under section 20(1), the local authority consider that a plan should be amended, the local authority must— (a) give public notice of the amended plan and any maps it refers to, (b) make the original plan and the amended plan and any such maps available for public inspection for a period of not less than 12 weeks, and (c) consult— (i) the local access forum for their area, (ii) persons representative of those who live, work, carry on business or engage (or would be likely to engage) in recreational activities on the land affected by the amendment to the plan, (iii) Scottish Natural Heritage, and (iv) such other persons as the local authority think fit, in each case inviting objections and representations in relation to the amendment to the plan to be made to them within such period as they specify. (2) If no objections are made or any made are withdrawn, the local authority must adopt the amended plan. (3) If an objection is made and not withdrawn, the local authority must not adopt the amended plan unless Ministers direct them to do so. (4) If, after complying with subsection (1), the local authority modify the amended plan, they must notify and consult such persons as they consider appropriate on the modified amended plan. (5) Where an objection remains unwithdrawn, Ministers must not make a direction without first causing a local inquiry to be held into whether the amended plan (or, as the case may be, the modified amended plan) will, if adopted, fulfil the purpose mentioned in section 17(1). (6) Ministers may, in any other case, cause such an inquiry to be held. (7) Subsections (2) to (13) of section 265 (local inquiries) of the Town and Country Planning (Scotland) Act 1997 apply to an inquiry held under subsection (5) or (6) as they apply to one held under that section. (8) Following the publication of the report by the person appointed to hold the inquiry, Ministers may (but need not) direct the local authority to adopt the amended plan (or, as the case may be, the modified amended plan) either as drawn up under section 20 or with such modification as Ministers specify in the direction. (9) On adopting the amended plan, the local authority must— (a) give public notice of the adoption of the amended plan, (b) amend the list of core paths compiled under section 18(8), (c) keep the amended plan, any maps it refers to and the list available for public inspection and for sale at a reasonable price, and (d) send a copy of each of those documents to Ministers. (10) Where Ministers decline to make a direction under subsection (8), the local authority must draw up a revised amended plan and must do so in accordance with such procedure and within such time limits as Ministers specify. (11) Such specification must include provision under which Ministers may (but need not) direct the local authority to adopt the revised amended plan. (20B) (1) Where, following a review of a plan under section 20(1), the local authority consider that a plan should be amended, the local authority must, at the same time as complying with section 20A(1), serve a written notice on the owner and occupier of any land which is, as a result of the amendment of the plan, being included in a plan for the first time (the “affected land”). (2) Notice under subsection (1) must— (a) explain the potential effect of the amended plan on the affected land, (b) set out where the original plan and the amended plan may be inspected, and (c) specify the period within which any objections and representations in relation to the amendment to the plan may be made. (3) Where it is not possible, after reasonable enquiry, to identify the owner or occupier of the affected land, notice under subsection (1) may be given instead by leaving a copy of the notice in a prominent place on the affected land. (20C) If the local authority consider that it would be appropriate to make a single amendment of a core paths plan, the local authority must— (a) consult such persons as the local authority think fit on the amendment, inviting objections and representations in relation to the amendment to be made to them within such period as they specify, and (b) give such notice of the amendment as the local authority think fit. (20D) (1) Section 17(3) applies to an amendment under section 20C which includes a further path, waterway or other means of crossing land such as is mentioned in section 17(2) as it applies to a plan drawn up under section 17(1). (2) Section 20(3) applies to an amendment under section 20C which removes a core path from the plan or diverts the line of a core path on the plan as it applies to an amendment of a plan under section 20(2). (3) The following provisions apply to an amendment under section 20C as they apply to an amendment of a plan under section 20(1)— (a) subsections (2) to (9) of section 20A, (b) section 20B, subject to the modification that the reference in section 20B(1) to section 20A(1) is to be read as a reference to section 20C.

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Court applications

Access rights: service of court applications

84

• (1) Section 28 of the Land Reform (Scotland) Act 2003 (judicial determination of existence and extent of access rights and rights of way) is amended as follows.

• (2) In subsection (6), at the end insert “ unless subsection (7A) applies ”.

• (3) After subsection (7), insert—

(7A) Where a declaration is being sought under subsection (1)(b)(i), the person seeking the declaration must also serve the application on the person whose exercise or purported exercise of access rights is in question.

PART 10 — Agricultural holdings

CHAPTER 1 — Modern limited duration tenancies

Modern limited duration tenancies

Modern limited duration tenancies: creation

85

• (1) The 2003 Act is amended as follows.

• (2) Section 5 (limited duration tenancies) is repealed.

• (3) After section 5 insert—

(5A) (1) Where— (a) agricultural land is let under a lease entered into on or after the coming into force of this section for a term of not less than 10 years, (b) the land comprised in the lease is not let to the tenant during the tenant's continuance in any office, appointment or employment held under the landlord, and (c) the lease does not constitute a 1991 Act tenancy or a repairing tenancy, the tenancy under the lease is, by virtue of this subsection, a modern limited duration tenancy. (2) Where— (a) at any time before the expiry of the term of a short limited duration tenancy, the landlord and the tenant agree in writing to convert the tenancy to a modern limited duration tenancy, or (b) the tenant remains in occupation of the land after the expiry of the term of a short limited duration tenancy of 5 years (including such a term fixed by virtue of section 4(2) or (3)) with the consent of the landlord, the tenancy has effect as if it were for a term of 10 years commencing at the start of the term of the short limited duration tenancy, and the tenancy is, by virtue of this subsection, a modern limited duration tenancy. (3) Where subsection (5) of section 4 results in a short limited duration tenancy purporting to be for a term of more than 5 years, the tenancy has effect as if it were for a term of 10 years; and the tenancy is, by virtue of this subsection, a modern limited duration tenancy. (4) Without prejudice to subsections (2) and (3), where a lease constituting a tenancy of agricultural land, as described in paragraphs (b) and (c) of subsection (1), purports to be for a term of more than 5 years and less than 10 years, the tenancy has effect as if it were for a term of 10 years; and the tenancy is, by virtue of this subsection, a modern limited duration tenancy. (5) Section 5B does not apply to a modern limited duration tenancy created under subsection (2), (3) or (4). (5B) (1) This section applies where the tenant under a lease constituting a modern limited duration tenancy is a new entrant to farming. (2) The lease may contain a provision that the tenancy may be terminated after 5 years in accordance with section 8D (a “break clause”). (3) The Scottish Ministers may by regulations make further provision about the tenants who are new entrants for the purposes of this section.

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Modern limited duration tenancies: subletting

86

• (1) The 2003 Act is amended as follows.

• (2) After section 7 insert—

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

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Modern limited duration tenancies: termination and continuation

87

• (1) The 2003 Act is amended as follows.

• (2) After section 8 insert—

(8A) A modern limited duration tenancy may be terminated by agreement between the landlord and tenant if the agreement is in writing and— (a) is entered into after the commencement of the tenancy, and (b) makes provision as to compensation payable by the landlord or the tenant to the other. (8B) (1) At the expiry of the term of a modern limited duration tenancy, the landlord may terminate the tenancy by giving a notice under this subsection to the tenant. (2) A notice under subsection (1) must— (a) be in writing and state that the tenant must quit the land on the expiry of the term of the tenancy, and (b) be given not less than 1 year nor more than 2 years before the expiry of the term of the tenancy, provided that not less than 90 days have elapsed from the date on which the intimation mentioned in subsection (3) is given. (3) A notice under subsection (1) is of no effect unless the landlord has given written intimation of the landlord's intention to terminate the tenancy to the tenant not less than 2 years nor more than 3 years before the expiry of the term of the tenancy. (8C) (1) At the expiry of the term of a modern limited duration tenancy, the tenant may terminate the tenancy by giving a notice under this subsection to the landlord. (2) A notice under subsection (1) must— (a) be in writing and state that the tenant intends to quit the land on the expiry of the term of the tenancy, and (b) be given not less than 1 year nor more than 2 years before the expiry of the term of the tenancy. (8D) (1) This section applies where the lease constituting a modern limited duration tenancy contains a break clause by virtue of section 5B. (2) The tenant may terminate the tenancy after 5 years by giving a notice under this subsection to the landlord. (3) A notice under subsection (2) must— (a) be in writing and state that the tenant intends to quit the land on the expiry of the period of 5 years beginning with the day the tenancy commenced, and (b) be given not less than 1 year nor more than 2 years before the expiry of that period. (4) The landlord may terminate the tenancy after 5 years by giving a notice under this subsection to the tenant. (5) A notice under subsection (4) must— (a) be in writing and state— (i) that the tenant must quit the land on the expiry of the period of 5 years beginning with the day the tenancy commenced, and (ii) the landlord's reasons for terminating the tenancy, and (b) be given not less than 1 year nor more than 2 years before the expiry of that period. (6) The landlord may give notice under subsection (4) only if the tenant— (a) is not using the land in accordance with the rules of good husbandry, or (b) is otherwise failing to comply with any other provision of the lease. (7) For the purposes of subsection (6)(a), what is good husbandry is to be construed by reference to schedule 6 of the Agriculture (Scotland) Act 1948. (8E) (1) At and after the expiry of the term of a modern limited duration tenancy, the tenancy continues to have effect for a further term of 7 years unless it is terminated in accordance with section 8A, 8B or 8C. (2) During the term of a modern limited duration tenancy, the term of the tenancy may be extended by the landlord and tenant by agreement in writing.

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Modern limited duration tenancies: fixed equipment

88

• (1) The 2003 Act is amended as follows.

• (2) After section 16 insert—

(16A) (1) There is incorporated in every lease constituting a modern limited duration tenancy an undertaking by the landlord that the landlord will, within 6 months of the commencement of the tenancy or, where that is not reasonably practicable by virtue of any obligation on the landlord under any other enactment, as soon as reasonably practicable thereafter— (a) provide such fixed equipment as will enable the tenant to maintain efficient production as respects the use of the land as specified in the lease, and (b) put the fixed equipment so provided into the condition specified in the schedule of fixed equipment that is required by virtue of subsection (2). (2) Where a lease constituting a modern limited duration tenancy is entered into and fixed equipment is comprised in the lease, the parties must agree in writing a schedule of fixed equipment specifying— (a) the fixed equipment which the landlord will provide in terms of subsection (1)(a), and (b) the condition of the fixed equipment, and on being so agreed (or, failing such agreement, on being determined in accordance with section 77 or 78) the schedule of fixed equipment is deemed to form part of the lease. (3) The schedule of fixed equipment must be agreed before the expiry of the period of 90 days beginning with the commencement of the tenancy. (4) If at any time after the commencement of the tenancy the fixed equipment or its condition is varied, the landlord and tenant may agree to amend the schedule of fixed equipment accordingly or to substitute for it a new schedule. (5) Unless the lease makes provision to the contrary, there is also incorporated in every such lease— (a) an undertaking by the landlord that the landlord will, during the tenancy, effect such renewal or replacement of the fixed equipment provided as required by virtue of subsection (1) as may be rendered necessary by natural decay or by fair wear and tear, and (b) a provision that the liability of the tenant in relation to the maintenance of fixed equipment extends only to a liability to maintain the fixed equipment specified in the schedule of fixed equipment in as good a state of repair (natural decay and fair wear and tear excepted) as it was in— (i) immediately after it was put into the condition specified in the schedule of fixed equipment, or (ii) in the case of equipment improved, provided, renewed or replaced, during the tenancy, immediately after it was so improved, provided, renewed or replaced. (6) The cost of making and agreeing the schedule of fixed equipment under this section must, unless otherwise agreed, be borne by the landlord and tenant in equal shares. (7) Any agreement between the landlord and tenant which purports to provide for the tenant to bear any expense of any work which the landlord is required to execute in order to fulfil the landlord's obligations under the lease is of no effect. (8) Any term of a lease constituting a modern limited duration tenancy that requires the tenant to pay the whole or any part of the premium due under a fire insurance policy over any fixed equipment on the land is of no effect.

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Modern limited duration tenancies: irritancy

89

• (1) The 2003 Act is amended as follows.

• (2) After section 18 insert—

(18A) (1) Without prejudice to any rule of law, it is for the landlord and tenant to provide in the lease constituting a modern limited duration tenancy what grounds there are for irritancy of the lease. (2) Any term of such a lease or of an agreement in connection with the lease that provides for the lease to be irritated solely on the grounds that the tenant is not or has not been resident on the land is of no effect. (3) Where such a lease may be irritated on the grounds that the tenant is not using the land in accordance with the rules of good husbandry, what is good husbandry is to be construed, subject to subsections (4) and (5), by reference to schedule 6 of the Agriculture (Scotland) Act 1948. (4) Conservation activities are to be treated as being in accordance with the rules of good husbandry if they are carried out in accordance with— (a) an agreement entered into under any enactment by the tenant, or (b) the conditions of— (i) any grant for the purpose of such activities paid out of the Scottish Consolidated Fund, or (ii) such other grant of a public nature as the Scottish Ministers may by regulations specify. (5) Such use of any of the land, or such change to the land, for a non-agricultural purpose as has been permitted under section 40 or 41 is to be treated as being in accordance with the rules of good husbandry. (6) Where the landlord intends to irritate the lease, the landlord must give the tenant notice in writing specifying— (a) the breach of the tenant's obligations under the lease which form the grounds on which the landlord intends to irritate the lease, and (b) the period before the expiry of which the tenant must remedy that breach, which period must be not less than 12 months beginning with the date of the notice. (7) The period mentioned in subsection (6)(b) may be extended— (a) by the landlord and the tenant by agreement, or (b) by the Land Court on the application of the tenant. (8) The landlord may not enforce any right to remove the tenant on grounds of irritancy unless— (a) the period specified in the notice under subsection (6)(b), or such extended period as mentioned in subsection (7), has expired without the tenant having remedied the breach specified in the notice, and (b) the landlord has given notice in writing of the intention so to enforce the right to remove the tenant not less than 2 months before the date on which the tenant is to be removed.

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Conversion of 1991 Act tenancies

Conversion of 1991 Act tenancies into modern limited duration tenancies

90

• (1) The 2003 Act is amended as follows.

• (2) Section 2 is repealed.

• (3) After that section insert—

(2A) (1) The landlord and tenant under a 1991 Act tenancy may terminate the tenancy by agreement in writing provided that— (a) the agreement— (i) specifies the date on which the termination is to have effect, and (ii) is made not less than 30 days before that date, and (b) subsection (2) is complied with. (2) This subsection is complied with if the landlord and tenant enter into a lease constituting a modern limited duration tenancy for a term of not less than 25 years which— (a) comprises or includes the same land as that comprised in the tenancy being terminated under subsection (1), and (b) has effect from the date on which the termination under that subsection has effect. (3) The landlord or tenant is entitled, at any time before the date on which the termination under subsection (1) has effect, to revoke (without penalty)— (a) the agreement made under that subsection, and (b) the lease mentioned in subsection (2), by giving notice in writing to the other of the revocation. (4) On termination of a 1991 Act tenancy under subsection (1), the tenant is entitled to— (a) such compensation for improvements as the tenant would have been entitled to under Part 4 (compensation for improvements) of the 1991 Act (or, as the case may be, under the lease), and (b) such compensation as the tenant would have been entitled to under section 45A (compensation arising as a result of diversification and cropping of trees) of that Act, were the tenant quitting the holding as a result of the termination of the tenancy. (5) Where a 1991 Act tenancy is terminated under subsection (1), section 21 (notice to quit and notice of intention to quit) of the 1991 Act does not apply in respect of the tenancy. (6) Section 5B does not apply to a modern limited duration tenancy created under this section.

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Conversion of limited duration tenancies

Conversion of limited duration tenancies into modern limited duration tenancies

91

• (1) The 2003 Act is amended as follows.

• (2) After section 2A (as inserted by section 90) insert—

(2B) (1) The landlord and tenant under a limited duration tenancy may terminate the tenancy by agreement in writing provided that— (a) the agreement— (i) specifies the date on which the termination is to have effect, and (ii) is made not less than 30 days before that date, and (b) subsection (2) is complied with. (2) This subsection is complied with if the landlord and tenant enter into a lease constituting a modern limited duration tenancy for a term of not less than the term remaining under the limited duration tenancy which— (a) comprises or includes the same land as that comprised in the tenancy being terminated under subsection (1), and (b) has effect from the date on which the termination under that subsection has effect. (3) The landlord or tenant is entitled, at any time before the date on which the termination under subsection (1) has effect, to revoke (without penalty)— (a) the agreement made under that subsection, and (b) the lease mentioned in subsection (2), by giving notice in writing to the other of the revocation. (4) On termination of a limited duration tenancy under subsection (1), the tenant is not entitled to compensation for improvements under Part 4 (or, as the case may be, under the lease). (5) But any improvements for which the tenant would have been entitled to compensation under that Part but for subsection (4) are, for the purposes of that Part, to be regarded as improvements carried out during the modern limited duration tenancy. (6) Where a limited duration tenancy is terminated under subsection (1), section 8 does not apply in respect of the tenancy. (7) Section 5B does not apply to a modern limited duration tenancy created under this section.

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CHAPTER 2 — Repairing tenancies

Repairing tenancies: creation

92

• (1) The 2003 Act is amended as follows.

• (2) After section 5B (as inserted by section 85) insert—

(5C) (1) Where— (a) agricultural land is let under a lease entered into on or after the coming into force of this section for a term of not less than 35 years, (b) the land comprised in the lease is not let to the tenant during the tenant's continuance in any office, appointment or employment held under the landlord, (c) the lease does not constitute a 1991 Act tenancy, (d) the lease requires the tenant, during the repairing period, to improve the land comprised in the lease in order to bring it into a state capable of being farmed, after the expiry of the repairing period, in accordance with the rules of good husbandry, and (e) the lease expressly states that this section is to apply to the tenancy, the tenancy is, by virtue of this subsection, a repairing tenancy. (2) In this Part, the “repairing period” is the period, beginning with the commencement of the tenancy, of— (a) 5 years, or (b) such longer period— (i) as the landlord and tenant may agree under this paragraph or, as the case may be, under subsection (3)(a), or (ii) as the Land Court may determine under subsection (3)(b). (3) The repairing period may be extended at any time before its expiry— (a) by the landlord and tenant by agreement, or (b) by the Land Court on the application of either the landlord or the tenant. (4) On an application under subsection (3)(b), the Land Court may extend the repairing period— (a) if it considers it appropriate in all the circumstances to do so, and (b) by such period as it determines necessary in all the circumstances. (5) A lease constituting a repairing tenancy may contain a provision that the tenancy may be terminated in accordance with section 8G (a “break clause”). (6) In this section and section 5D, what is good husbandry is to be construed by reference to schedule 6 of the Agriculture (Scotland) Act 1948. (5D) (1) Where a lease constituting a repairing tenancy does not include provision mentioned in subsection (2), such provision is incorporated. (2) The provision is that during the repairing period the tenant cannot be held liable for not farming the land comprised in the lease in accordance with the rules of good husbandry.

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Repairing tenancies: subletting

93

• (1) The 2003 Act is amended as follows.

• (2) After section 7B (as inserted by section 105) insert—

(7C) (1) During the repairing period, a tenant may not sublet the land comprised in a lease constituting a repairing tenancy without the consent of the landlord. (2) After the expiry of the repairing period, a tenant may sublet the land comprised in a lease constituting a repairing tenancy only on such basis as the lease expressly permits.

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Repairing tenancies: termination, continuation and extension

94

• (1) The 2003 Act is amended as follows.

• (2) After section 8E (as inserted by section 87) insert—

(8F) (1) Subject to section 8G, sections 8A to 8C apply to the termination of a repairing tenancy as to the termination of a modern limited duration tenancy. (2) Section 8E applies to the continuation and extension of a repairing tenancy as to the continuation and extension of a modern limited duration tenancy. (8G) (1) This section applies where the lease constituting a repairing tenancy contains a break clause by virtue of section 5C(5). (2) At any time until the expiry of the repairing period, the tenant may terminate the tenancy by giving a notice under this subsection to the landlord. (3) A notice under subsection (2) must— (a) be in writing and state that the tenant intends to quit the land on a date specified in the notice, which is to be no later than the expiry of the repairing period, and (b) be given not less than 1 year nor more than 2 years before the date specified in the notice. (4) The landlord may terminate the tenancy on the expiry of the repairing period by giving a notice under this subsection to the tenant. (5) A notice under subsection (4) must— (a) be in writing and state— (i) that the tenant must quit the land on the expiry of the repairing period, and (ii) the landlord's reasons for terminating the tenancy, and (b) be given not less than 1 year nor more than 2 years before the expiry of the repairing period. (6) The landlord— (a) may not give notice under subsection (4) on the grounds that the tenant is not farming the land in accordance with the rules of good husbandry, (b) may give notice under subsection (4) if the tenant is otherwise failing to comply with any other provision of the lease. (7) For the purposes of subsection (6), what is good husbandry is to be construed by reference to schedule 6 of the Agriculture (Scotland) Act 1948.

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Repairing tenancies: fixed equipment

95

• (1) The 2003 Act is amended as follows.

• (2) After section 16A (as inserted by section 88) insert—

(16B) (1) Where a lease constituting a repairing tenancy is entered into and fixed equipment is comprised in the lease, the parties must agree in writing a schedule of fixed equipment specifying— (a) the fixed equipment which the landlord will provide during the repairing period as will enable the tenant to maintain efficient production, after the expiry of the repairing period, as respects the use of the land as specified in the lease, (b) the condition of such fixed equipment, and (c) any fixed equipment on the land which may be disregarded for the purposes of subsections (5) and (6), and on being so agreed (or, failing such agreement, on being determined in accordance with section 77 or 78) the schedule of fixed equipment is deemed to form part of the lease. (2) The schedule of fixed equipment must be agreed before the expiry of the period of 90 days beginning with the commencement of the tenancy. (3) If at any time after the commencement of the tenancy the fixed equipment or its condition is varied, the landlord and tenant may agree to amend the schedule of fixed equipment accordingly or to substitute for it a new schedule. (4) The cost of making and agreeing the schedule of fixed equipment under this section must, unless otherwise agreed, be borne by the landlord and tenant in equal shares. (5) Unless the lease makes provision to the contrary, there is incorporated in every such lease an undertaking by the tenant that the tenant will, during the repairing period— (a) provide such fixed equipment, and (b) effect such maintenance, renewal or replacement of the fixed equipment provided by the tenant by virtue of paragraph (a) and by the landlord by virtue of subsection (1)(a), as may be necessary to enable the tenant to maintain efficient production, after the expiry of the repairing period, as respects the use of the land as specified in the lease. (6) Unless the lease makes provision to the contrary, there is also incorporated in every such lease— (a) an undertaking by the landlord that the landlord will, after the expiry of the repairing period, effect such renewal or replacement of the fixed equipment specified in the schedule of fixed equipment as may be rendered necessary by natural decay or by fair wear and tear, and (b) a provision that the liability of the tenant in relation to the maintenance of fixed equipment, after the expiry of the repairing period, extends only to a liability to maintain the fixed equipment specified in the schedule of fixed equipment in as good a state of repair (natural decay and fair wear and tear excepted) as it was in— (i) at the expiry of the repairing period, or (ii) in the case of equipment improved, provided, renewed or replaced, after the expiry of the repairing period, immediately after it was so improved, provided, renewed or replaced. (7) Subsections (5) and (6) do not apply to any fixed equipment specified in the schedule of fixed equipment by virtue of subsection (1)(c). (8) Any agreement between the landlord and tenant which purports to provide for the tenant, whether during the repairing period or after its expiry, to bear any expense of any work which the landlord is required to execute in order to fulfil the landlord's obligations under the lease is of no effect. (9) Any term of a lease constituting a repairing tenancy that requires the tenant, whether during the repairing period or after its expiry, to pay the whole or any part of the premium due under a fire insurance policy over any fixed equipment on the land is of no effect.

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Repairing tenancies: resumption of land by landlord

96

• (1) The 2003 Act is amended as follows.

• (2) After section 17 insert—

(17A) (1) Until 5 years have elapsed from the date of expiry of the repairing period, the landlord may not resume the land or any part of the land comprised in the lease constituting the repairing tenancy. (2) After 5 years have elapsed from the date of expiry of the repairing period, section 17 applies to the resumption of the land or any part of the land comprised in a lease constituting a repairing tenancy as it applies to the resumption of the land or any part of the land comprised in a lease constituting a limited duration tenancy or a modern limited duration tenancy.

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Repairing tenancies: irritancy

97

• (1) The 2003 Act is amended as follows.

• (2) After section 18A (as inserted by section 89)—

(18B) (1) Subject to subsection (2), section 18A applies to the irritancy of a lease constituting a repairing tenancy as it applies to the irritancy of a lease constituting a modern limited duration tenancy. (2) During the repairing period, section 18A has effect as if, after subsection (2), there were inserted— (2A) Any term of such a lease or of an agreement in connection with the lease that provides for the lease to be irritated solely on the grounds that the tenant is not using the land in accordance with the rules of good husbandry is of no effect.

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Repairing tenancies: compensation

98

• (1) The 2003 Act is amended as follows.

• (2) After section 59 insert—

(59A) The Scottish Ministers may by regulations provide that Part 4, in its application to repairing tenancies, has effect with such modifications as the regulations may specify.

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CHAPTER 3 — Tenant's right to buy

Tenant’s right to buy: removal of requirement to register

99

• (1) The 2003 Act is amended as follows.

• (2) Sections 24 (register of tenants' interests in acquiring land) and 25 (registration of such interests) are repealed.

• (3) Before section 26 insert as an italic heading “ The right to buy ”.

• (4) In section 26 (notice of proposal to transfer land)—

• (a) for subsection (1) substitute—

(1) This section applies where— (a) the owner of land comprised in a lease constituting a 1991 Act tenancy, or (b) a creditor in a standard security with a right to sell the land, proposes to transfer the land or any part of it to another person. (1A) The owner or, as the case may be, the creditor must, subject to section 27, give notice in writing of the proposed transfer to the tenant.

,

• (b) in subsection (2), for “subsection (1)” substitute “ subsection (1A) ”,

• (c) after that subsection insert—

(3) For the purposes of this Part, “tenant”— (a) where there are two or more tenants under the lease, means those tenants, and (b) does not include a sub-tenant.

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• (5) In section 27 (transfers not requiring notice), subsection (1)(g)(v) is repealed.

• (6) In section 28 (right to buy)—

• (a) in subsection (1)—

• (i) “a tenant's interest in acquiring land is for the time being registered under section 25 and” is repealed,

• (ii) in paragraph (a), for first “the land” substitute “ land comprised in a lease constituting a 1991 Act tenancy, ”,

• (b) in subsection (3)—

• (i) after paragraph (a) insert “ or ”,

• (ii) paragraph (c) is repealed (together with the “or” immediately before it).

• (7) In section 29 (exercise of right to buy), subsection (7) is repealed.

CHAPTER 4 — Sale where landlord in breach

Sale to tenant or third party where landlord in breach of order or award

100

• (1) The 2003 Act is amended as follows.

• (2) After section 38 insert—