Access To Land
The Land Reform (Scotland) Act 2016 was passed in March 2016 and adds to the Land Reform Scotland Act (2003). This legislation improves community right-to-buy legislation including to further sustainable development, removes business tax exemptions for sporting estates, reviews deer management, introduces a land register for all land in Scotland and introduces a Land Commission. Section 10 of the Act relates specifically to agricultural holdings and makes the following changes:
– A new Tenant Farming Commissioner
– The Act creates a new ‘modern limited duration tenancy’ (MLDT) which will replace the Limited Duration Tenancies (LDTs). These last for 10 years and have the opportunity of a break clause for new entrants. The landlord is responsible for renewing and replacing fixed equipment and the tenant is responsible for maintenance.
– It also creates ‘repairing tenancies’ which are a minimum of 35 years with an initial ‘repairing period’ to allow maintenance and repair of holdings which are currently in a poor state of repair.
– Tenants will automatically have a pre-emptive right to buy when land comes on the market.
– Where a landlord has breached a lease contract and not carried out remedial action following court proceedings the tenant has the right to buy the land.
– Rent reviews change from ‘open market rent’ to a ’fair rent which will take account of the productive capacity of the holding.
– The Act widens the category of persons who are eligible to be successors to a lease.
– Tenants can give up their lease in exchange for payment from the landowner. If they aren’t willing to pay they can assign it to a new entrant or someone wishing to progress.
– An amnesty period for tenants to declare improvements eligible for compensation and a requirement for landlords to give written notice of improvements.
The Agricultural Holdings (Scotland) Act 2012 along with earlier acts provides the legal framework for the tenanted sector in Scotland. The legislation supports four types of farm tenancies:
– A secure 1991 Act tenancy is a long term heritable tenancy with security of tenure and a succession right
– A grazing or mowing lease of not more than 364 days
– A Short Limited Duration Tenancy (SLDT) of up to five years duration
– A Limited Duration Tenancy (LDT) for a minimum period of ten years
The Community Empowerment (Scotland) Act 2015 extends the community right to buy to all of Scotland; urban and rural, and simplifies the application procedure somewhat. The Act introduces a new provision for community bodies to purchase land which is abandoned, neglected or causing harm to the environmental wellbeing of the community, where the owner is not willing to sell that land. It also introduces provisions for communities to take control of publicly owned assets (buildings and land including forests) if they can provide evidence that they will increase benefits to the community compared to current use of the asset. It also introduces new national outcomes, requirements for local planning authorities and updates and simplifies legislation on allotments.
The Crofters (Scotland) Act 1993 protects crofters from being unfairly removed from their land, guarantees fair rents and allows them to claim compensation for improvements should their tenancy come to an end. Crofting regulation only covers the crofting counties in the north and west of Scotland and not all holdings are crofts in these regions. Reforms in 2007 and 2010 improved the rights of crofters particularly the right-to-buy. Crofters have the right to buy the site of their home on the croft and an appropriate area of garden whether or not the landowner wants to sell. They also have the right to apply to their landlord to buy their croft and to be seen at the Land Court should the landowner refuse. Landowners have to provide evidence that loss of the croft would cause significant hardship or damage to the estate, which is difficult for landlords to achieve and rarely done. Crofting legislation requires crofts to be actively managed and secures inheritance of crofts.
The Land Reform (Scotland) Act gives crofting communities the right to buy croft land whether or not the landowner wants to sell it. However so far, only the Pairc Trust on the Isle of Lewis has successfully forced the sale of croft land to the community, after lengthy considerations by the Scottish Government.
