About agricultural tenancies

An agricultural holding comprises all the agricultural land included in a lease. This does not include land that is let as part of a tenant's terms of employment. [1]

Agricultural land is land used for agriculture for the purposes of a trade or business. [2] This includes:

• growing fruit, seeds and other crops

• raising livestock

• dairy farming

• market gardening. [3]

An agricultural tenant does not necessarily need to live on their holding. [4]

The agricultural acts are sometimes construed to cover leases which are of a more commercial nature or leases of areas which are not obvious traditional farming situations. Therefore if a client's lease could in any way be construed to be covered by the agricultural acts (for example, if s/he leases a fish farm), s/he should seek advice from a lawyer who specialises in agricultural law.

The two principal Acts that govern agricultural tenancies are the Agricultural Holdings (Scotland) Act 1991 ('the 1991 Act') and the Agricultural Holdings (Scotland) Act 2003 ('the 2003 Act'), which amends and augments the 1991 Act. These Acts set out the rights of agricultural tenants.

There are four kinds of agricultural tenancies: 1991 Act tenancies, and limited duration and short limited duration tenancies and lease for grazing and mowing, which were introduced by the 2003 Act.

1991 Act tenancies

A tenant has a 1991 Act tenancy if:

• their lease began before 2003, or

• their tenancy began after 2003 but a written lease was drawn up before the tenancy began, expressly stating that the tenancy will be regulated by the Agricultural Holdings (Scotland) Act 1991. [5]

Limited duration tenancies

A tenant has a limited duration tenancy if:

• her/his lease began after 2003, and

• her/his lease lasts for at least fifteen years.

Short limited duration tenancies

A tenant has a short limited duration tenancy if:

• her/his lease began after 2003, and

• her/his lease lasts for no more than five years. [6]

Leases for grazing or mowing

A tenant has a lease for grazing and mowing if:

• land has been let to them to be used only for grazing and mowing during a specified time of the year (although this does not need to be explicitly stated in the lease), and

• the lease lasts for no more than 364 days. [7]

If the land is to be relet to the same tenant for the same purpose, one clear day must be left between the expiry of the old lease and the start of the new one. [8] If a tenant remains in possession of the land with the landlord's consent for more than 364 days, the tenancy will convert to a short limited duration tenancy, with a term of five years or less, agreed between the landlord and tenant. [9]

Anyone taking on an agricultural tenancy should consult a solicitor specialising in agricultural law before signing the lease. A solicitor can ensure that the lease has been drawn up properly and will afford the tenant the protection of the Agricultural Acts.

If a tenant rents land in the Highlands and Islands in the former counties of Argyll, Inverness, Ross and Cromarty, Sutherland, Caithness, Orkney and Shetland, and their holding is registered with the Crofters Commission, they will have a crofting tenancy. As of 4 February 2010 Arran, Bute, Greater and Little Cumbrae, Moray and those parts of the Highland Council Region that are not already included were also added to the designated crofting areas by the Scottish Government.

Further information about crofters' rights can be found at the Crofters Commission website or on Shelter's Get advice website.

If a tenant works for their landlord (for example, s/he is a farm worker who rents a cottage from their employer, or a gamekeeper who rents an agricultural holding from their employer), s/he will not have an agricultural tenancy. S/he is likely to be an agricultural occupier, or a service occupier or service tenant.