1991 Act agricultural tenancies
This page looks at your rights if you live on an agricultural holding and have a tenancy regulated by the Agricultural Holdings (Scotland) Act 1991.
Do I have a 1991 Act agricultural tenancy?
You are likely to have a 1991 Act agricultural tenancy if:
- you rent an agricultural holding, and
- your lease began before 2003, or
- your lease began after 2003 but the terms and conditions specifically state that your tenancy is regulated by the Agricultural Holdings (Scotland) Act 1991, and
- you don't have a short let for grazing or mowing (a lease of less than 364 days, held during a specified period of the year), and
- you aren't employed by your landlord - if you are, you will probably be an agricultural occupier or a service tenant or service occupier.
You don't have to live on the holding itself to be an agricultural tenant.
What are my rights?
As a 1991 Act agricultural tenant you have rights that are protected by law. These include:
- the right to a written lease
- in certain situations, the right to remain living and working on the holding after your lease has expired
- if you do have to leave the tenancy, the right to get compensation for any improvements to the agricultural land you've carried out, and possibly other compensation payments as well
- the right to use the land for non-agricultural purposes
- the right to pass on your tenancy to a spouse or relative
- the right to leave your tenancy to a spouse or relative
- the right to buy your holding, if your landlord decides to sell, provided you have registered your interest in buying the land.
These rights should be set out in the lease you have with your landlord. If your lease doesn't contain these rights, get legal advice from a solicitor specialising in agricultural law. In most cases, your landlord shouldn't be able to take these rights away from you, for example by including clauses in your lease which contradict them.
What should the written lease contain?
Before your tenancy starts, your landlord should provide you with a written lease, setting out the terms and conditions of the tenancy. If you don't have a written lease, you can ask your landlord to supply one, and they must do so within six months. If they refuse, or if you can't agree on the terms and conditions, you can go to the Land Court, and they can decide the terms and conditions of the tenancy for you.
The lease must include:
- your name and the name of your landlord (the parties of the lease)
- a description of the land you're renting (the subjects of the lease)
- how long you'll be renting it for (the duration or term of the lease) - if different parts of the holding are let for different lengths of time, this should also be stated here
- how much the rent is and when you need to pay it
- a record of the fixed equipment on the land and the condition it's in (see 'what is a record of holding' below)
- additional information about responsibility for repairs (see 'who is responsible for repairs' below)
- details of your landlord's responsibility to insure and repair the property against fire damage and your responsibility to insure the crops and stock against fire damage.
The lease may also contain other terms and conditions, but these can't include anything which might prevent you from farming the land properly or take away your legal rights.
What is a record of holding?
In addition to the lease, you will also need to get a record of holding. An independent person appointed by you and your landlord makes this record, and it must detail:
- the condition of the fixed equipment on the holding (once this has been done, it will form part of the lease - see 'who is responsible for repairs' below for a definition of fixed equipment)
- the condition of the cultivation of the holding.
The record can be in any form agreed by you and your landlord. For example, it could be in writing, but supplemented by photographs or videotaped evidence.
You can ask for a new record to be made at any time during your tenancy, for example to record improvements that you've made to the holding. This should help you avoid any disputes with your landlord over who owns what when you leave the holding.
If you and your landlord can't agree on a suitable person to make the record, you can ask the Scottish Government Rural Payments and Inspections Directorate (SGRPID) to appoint someone for you.
Who is responsible for repairs?
You and your landlord both have certain responsibilities to maintain the fixed equipment on the land you are renting.
Fixed equipment includes:
- permanent buildings such as farm houses, cottages and barns
- fences, hedges and gates
- ditches and ponds
- water and sewerage systems
- roads, bridges and fords
- electrical equipment, such as generators, fixed motors and wiring systems.
The page on repairs and improvements explains your rights and responsibilities in more details.
What happens when the lease runs out?
Once the term of the lease has run out, it will automatically repeat itself for another year with the same terms and conditions unless:
- you want to move out and give your landlord the correct notice to leave (see 'what if I want to move out' below)
- your landlord wants you to move out and gives you the correct notice to leave.
This process is called tacit relocation. Your landlord cannot stop tacit relocation from happening. If they try to do this by including a clause in your lease to prevent it, this clause will not be legally binding.
I want to leave
If you want to leave the tenancy, you have to give your landlord one year's notice before the date on which your lease ends. If this date has already passed and your tenancy is continuing by tacit relocation (see above), you will need to give one year's notice.
My landlord has asked me to leave
If your landlord wants you to leave, they must follow the correct procedure. To begin with, they must send you a valid notice to quit. This doesn't necessarily mean you'll have to leave: as an agricultural tenant, you have strong tenancy rights, although your rights will vary depending on your situation. The section on eviction explains this in more detail. If you do have to leave, you may be entitled to compensation.
Can my landlord change the rent?
Your lease should set out how often your landlord is entitled to raise the rent on the holding. Except in special circumstances (for example, if your landlord carries out improvements to the land), the rent can usually only be changed once every three years. If you and your landlord can't agree on rent levels, you can refer the matter to the Land Court, who can then fix the rent for you, based on an open-market value.
Can I use the land for anything other than agriculture?
Yes. Since 2003, 1991 Act tenants have been allowed to use agricultural land for other purposes (such as tourism or forestry), even if their lease prohibits this. This is known as diversification. If you wish to do so, you will need to send your landlord a notice (called a 'notice of diversification') outlining your proposal. This must be sent at least 70 days before the changes are due to begin. Your landlord can ask you to supply further information if necessary.
Does my landlord have to agree to the changes?
Your landlord must let you know their decision in writing within 60 days of the date on the notice of diversification, or 60 days from the date they ask you to send them further information. If they don't let you know their decision within this time, you can assume they agree to your plans.
Your landlord can object to your proposal if they feel it would be harmful to the land or would cause them undue hardship. If you think they are being unreasonable, you can take your case to the Land Court.
If your landlord agrees to your proposal, they can impose reasonable conditions.
Will I still have an agricultural tenancy?
Even if you no longer use the land for agricultural purposes, you will still be an agricultural tenant.
Can I sublet the holding?
It may be possible to sublet all or part of the holding if your landlord agrees. This should be written into your lease.
Can I pass on the tenancy to someone else?
You have the right to assign your tenancy to your husband, wife or civil partner, or to a close relative, for example a child, brother or sister. If you are planning to do this, you must inform your landlord in writing, telling them:
- who you propose to assign the tenancy to
- what the terms and conditions of the assignation will be
- the date on which you want to hand the tenancy over.
Your landlord can refuse to let you assign the tenancy if they think the proposed new tenant won't be able to pay the rent or maintain the land properly. They must let you know their decision in writing within 30 days. If they don't reply, you can assume they give their consent.
Can I leave the tenancy to someone in my will?
You have a right to leave your tenancy to any of the following people:
- your husband, wife or civil partner
- a blood relative (for example, a child, brother, sister or parent)
- your daughter-in-law or son-in-law.
You can find out more about wills here.
Will I be able to buy the land from my landlord?
As of 2004, 1991 Act tenants can formally register their interest in buying the land they rent from their landlord. If your landlord decides to sell, they must then offer you first refusal. This is known as the 'right to buy'.
If you are interested in buying the land you rent at any point in the future, you should send a notice of interest to the Keeper of the Register of Community Interests in Land. You can download a notice and order a right to buy information pack at the Registers of Scotland website. There's a small fee for registering.
You must also send a copy of the notice to your landlord, so they know you're interested. You will need to renew your registration every five years, in order to remain on the register, which will incur a small fee.
What happens if my landlord decides to sell the land?
Once you have registered your interest, if your landlord decides to sell the land, they should send you a notice to let you know. At this point, the best thing to do is talk to a solicitor who specialises in agricultural law. They can go through your options with you and help you decide whether it is in your best interests to buy the land.
What happens if I decide to buy the land?
If you decide you are in a position to buy the land, you need to make your landlord an offer. This should include the price you propose to pay, the entry date (the date you want to take over ownership of the land), and any other conditions. Your solicitor will draw up the offer and carry out the legal conveyancing work involved in transferring ownership of the land.
If you and your landlord can't agree on a price, you can appoint an independent valuer to assess how much the land is worth. If you don't agree with the valuation set, you or your landlord can appeal to the Lands Tribunal for Scotland.
If you can't agree on the terms and conditions of the sale, you can apply to the Land Court. The Land Court can make an order telling you to include any terms or conditions it believes to be fair.
What if I decide I don't want to buy the land?
If at this point you decide not to buy the land, you need to send a notice to your landlord and the Keeper of the Register of Community Interests, and your right to buy will be removed from the register. However, you can re-register later on if you change your mind.
What if my landlord doesn't tell me they're going to sell the land?
If you have registered your interest but your landlord fails to send you a notice informing you that they're selling the land, this doesn't affect your right to buy. If your landlord sells the land to someone else, you'll have the right to buy it from the new owner for three years after the sale.
If the landlord transfers ownership of the land to someone else without any money being paid (for example, if they transfer ownership to a spouse, son or daughter) this won't trigger your right to buy.
Talk to your solicitor if you think your landlord is trying to sell the land without letting you know, as the law regarding this situation is complicated.
Can a 1991 Act tenancy be converted to a limited duration tenancy?
If you and your landlord agree, your 1991 tenancy can be converted to a limited duration tenancy (LDT). Normally LDTs last for a minimum of 15 years, but if you convert from a 1991 Act tenancy, your LDT lease must last at least 25 years. This is to make up for the fact that LDTs do not offer as much security as 1991 Act tenancies.
If you are considering converting your tenancy, it's best to talk to a solicitor first, to make sure you understand all the implications.