Eviction from an inherited 1991 Act tenancy

If a tenant has inherited a 1991 Act tenancy from a relative, they may have less protection against eviction. This page explains their rights.

The law concerning the rights of tenants who have inherited a tenancy is complicated. Tenants should be advised to consult a solicitor who specialises in agricultural law.

This content applies to Scotland

Protection against eviction

Before the lease term ends

If the landlord wishes to evict a tenant before the term of their lease expires, s/he can only do so if:

  • the tenant owes more than six months' rent

  • the tenant has become bankrupt [1]

  • the tenant breaks an irritancy clause in their lease (this is a clause that specifically states that the tenant will be evicted if they break it) [2]

  • the lease gives the landlord the right to resume the land for building, planting or other non-agricultural purposes. [3]

The page on eviction before the lease ends explains this in more detail.

At the end of the lease or after the lease term ends

Once the lease term has expired, the tenant's rights will depend on:

  • when s/he inherited the tenancy, and

  • who s/he inherited the tenancy from, and whether s/he was a near relative (that is, the deceased tenant's husband, wife, civil partner, child or adopted child). [4]

Effective date of notice to quit

If a landlord issues a notice to quit to a tenant who inherited their tenancy, it will only be valid if the effective date is correct.

  • If, when the tenant inherited the tenancy, the lease had more than two years to run, the effective date on the notice to quit must be the date on the lease when the tenancy is due to end. [5]

  • If, when the tenant inherited the tenancy, the lease had less than two years to run, the effective date on the notice to quit must be no less than one and no more than three years from the date on which the tenant acquired the tenancy. [6]

Tenant inherited the tenancy before 1 August 1958 and was not a near relative of the deceased tenant

In this case, the tenant will have the same rights as a tenant who did not inherit the tenancy. These rights are explained in the page on eviction from 1991 Act tenancies. [7]

Tenant inherited the tenancy after 1 August 1958 but was not a near relative of the deceased tenant

Tenants in this situation do not have many rights. If the landlord sends the tenant a valid notice to quit, s/he does not have the right to issue a counter notice under section 22, so will probably have to leave the holding. [8]

Tenant inherited a lease granted before 1 January 1984 and was a near relative

In this case, the tenant's rights will be similar to a tenant who did not inherit their tenancy, as outlined in the page on eviction from 1991 Act tenancies. This means that if the landlord issues a notice to quit, the tenant can send their landlord a counter notice asserting their right to stay on, provided that the notice to quit does not specify a section 22 ground that applies to the tenant. [9]

The landlord will then need to apply to the Scottish Land Court for consent to the operation of the notice to quit. In order to do so, however, s/he must have stated one of the following grounds (or cases) on the notice to quit, and the Land Court must be satisfied that the case(s) apply. [10]

  • The tenant does not have enough training in agriculture or experience in farming to run the holding efficiently

  • The holding is not a two-man unit (that is, it does not provide employment for two or more people) [11] and the landlord wants to amalgamate it with other land within two years of ending the tenancy, and specifies the land with which it is to be amalgamated

  • The tenant is already the occupier of a separate two-man unit. [12]

Tenant inherited a lease granted after 1 January 1984 and was a near relative

Again, the tenant's rights will be similar to a tenant who did not inherit their tenancy. This means that if the landlord issues a notice to quit, the tenant can send them a counter notice asserting their right to stay on, provided that the notice to quit does not specify a section 22 ground that applies to the tenant. [13]

The landlord will then need to apply to the Land Court for consent to the operation of the notice to quit. In order to do so, however, they must have stated one of the following grounds (or cases) on the notice to quit, and the Land Court must be satisfied that the case(s) apply: [14]

  • the tenant does not have sufficient financial resources to farm the holding efficiently

  • the tenant does not have enough training in agriculture or experience in farming to run the holding efficiently – although this case will not apply if, from the date of the death of the tenant from whom s/he inherited the tenancy, the tenant has undertaken an agricultural training course which s/he is expected to finish in the next four years, and has arranged for the holding to be farmed satisfactorily in the meantime

  • the holding is not a two-man unit (that is, it does not provide employment for two or more people) [15] and the landlord wants to amalgamate with other land within two years of ending the tenancy, and specifies the land with which it is to be amalgamated

  • the tenant already occupies or controls or is a partner in a company that occupies a separate two-man unit. [16]

In this situation it is up to the tenant to prove to the Land Court that these cases do not apply. [17]

If either of the last two cases is used, the Land Court can withhold consent to the operation of the notice to quit if it appears to the court that it is unfair or unreasonable to do so. [18]

Last updated: 29 December 2014

Footnotes

  • [1]

    s.21(6) Agricultural Holdings (Scotland) Act 1991

  • [2]

    s.21(6) Agricultural Holdings (Scotland) Act 1991

  • [3]

    s.21(7)(a) Agricultural Holdings (Scotland) Act 1991

  • [4]

    sch.2 Part III para.1 Agricultural Holdings (Scotland) Act 1991

  • [5]

    s.25(2)(b)(i) Agricultural Holdings (Scotland) Act 1991

  • [6]

    s.25(2)(b)(ii) Agricultural Holdings (Scotland) Act 1991

  • [7]

    s.25(2)(d) Agricultural Holdings (Scotland) Act 1991

  • [8]

    s.22(g) Agricultural Holdings (Scotland) Act 1991

  • [9]

    s.25(3) Agricultural Holdings (Scotland) Act 1991

  • [10]

    s.25(3)(a) Agricultural Holdings (Scotland) Act 1991

  • [11]

    sch.2 Part III para.1 and 2 Agricultural Holdings (Scotland) Act 1991

  • [12]

    sch.2 Part I Agricultural Holdings (Scotland) Act 1991

  • [13]

    s.25(3) Agricultural Holdings (Scotland) Act 1991

  • [14]

    s.25(3)(b) Agricultural Holdings (Scotland) Act 1991

  • [15]

    sch.2 Part III para.1 and 2 Agricultural Holdings (Scotland) Act 1991

  • [16]

    sch.2 Part II Agricultural Holdings (Scotland) Act 1991

  • [17]

    s.25(3)(b) Agricultural Holdings (Scotland) Act 1991

  • [18]

    s.25(3) Agricultural Holdings (Scotland) Act 1991