Platinum blog series Adèle Nicol

As part of our platinum anniversary blog series, Adèle Nicol, Partner, Anderson Strathern and member of our Rural Affairs Sub-committee looks at the rights of agricultural tenants over the past 70 years.

A contemporary of the Law Society of Scotland, the Agricultural Holdings (Scotland) Act 1949, introduced fundamental policies to provide (1) security of tenure for tenants by restrictions on the operation of notices to quit, (2) compensation for improvements carried out by the tenant, and (3) a degree of rent control. Food security is always important, but in the aftermath of the Second World War it was in particularly sharp focus (rationing continued until July 1954). In this climate, the 1949 Act ushered in an exceptional level of security of tenure – previously unseen in Scotland except for crofting tenure – making it much more difficult for landlords to evict tenants from agricultural land. A tenant who is not living under fear of eviction can make long-term plans for the land, which is of wider societal benefit.

The path to the present day of the regime which the 1949 Act introduced has not always been a smooth one. Limited partnerships composed of the landowner and the person who would otherwise have been the tenant were used for a time to circumvent the security of tenure provisions. Such arrangements were often accompanied by “Post-Lease Agreements” seeking to contract out of the landlord’s obligations in relation to fixed equipment, and by “write-down agreements” seeking to restrict compensation claims at the termination of the tenancy. Legislative fixes were applied, one of which led to a high-profile challenge in the Salvesen v Riddell litigation. Whilst there are still a small number of Limited Partnership Tenancies these will eventually come to a natural expiry. No new tenancies of this type, Post-Lease Agreements and write-down agreements can be entered into.

Despite the reforms of the 1949 Act and the consolidating Act in 1991 that replaced it, the number of agricultural tenancies is on the decline. This is partly the result of changes in farming practices – meaning that larger agricultural units make more economic sense than a greater number of smaller ones – and partly the result of mutually agreed sales to sitting tenants (the semi-compulsory “right to buy” in the 2003 Act may have been an impetus for landlords and tenants to discuss “buy-outs” but it is my experience that the arrangements are agreed outwith the framework of the Act). It may be that the inception of the Scottish Land Commission and the Tenant Farming Commissioner will help to halt the decline.

On the legal side, further changes to agricultural tenancies have been made by Part 10 of the Land Reform (Scotland) Act 2016. Some – like the Modern Limited Duration Tenancy – have been commenced; others are still waiting, including the Repairing Tenancy, intended to encourage the long-term letting of land which requires a significant input, and under which the tenant will bring it into a condition where it can be farmed.

I had thought to round this off with a reference to food security perhaps becoming a more important issue again as a result of Brexit, as the date for publication was after 29 of March. But, at the time of writing, whether that will come to pass remains uncertain, much like Brexit itself.