Eviction when a 1991 Act tenancy expires

A landlord can only end a 1991 Act tenancy by following the correct procedures. S/he must start by sending the tenant a valid notice to quit. This does not necessarily mean the tenant will have to leave: their rights to stay on will depend on the reasons for eviction.

The eviction process for 1991 Act tenants is complex, and tenants should be advised to consult a solicitor specialising in agricultural law.

This content applies to Scotland

Overview of the eviction process for 1991 Act tenants

  • If a landlord wishes to evict a tenant, s/he must send the tenant a valid notice to quit, stating the grounds for eviction (the section 22 grounds).

  • If the grounds do not apply, the tenant can issue a counter notice. If the grounds do apply, the tenant must leave.

  • If the tenant issues a counter notice, the landlord must apply to the Scottish Land Court for consent to the operation of the notice to quit. The Land Court must then decide whether or not to evict the tenant.

If the tenant inherited the tenancy from a former tenant, s/he may have fewer rights.

Notice to quit

If a landlord wants a tenant to leave an agricultural holding, s/he must first send the tenant a notice to quit in writing. [1]

If a landlord wants a tenant to leave when the term of their tenancy expires, as stipulated in the lease, s/he must issue a notice to quit no less than one year and no more than two years before that date. [2] If s/he fails to do so, the notice to quit will be invalid and the lease will continue by tacit relocation until a correct notice is served.

If the tenancy is continuing by tacit relocation, the landlord must issue a notice to quit no less than one year and no more than two years before the date s/he wishes to end the tenancy. [3]

Section 22 grounds

The landlord must list the grounds for eviction in the notice to quit. The grounds are set out in section 22 of the 1991 Act. [4] If any of the following grounds apply to the tenant, it is likely that s/he will have to leave the holding:

  • The lease is for permanent pasture or grassland that the tenant has rented for a set period of time, on the understanding that s/he will use it to grow crops during that time then sow grass again at the end of the lease.

  • The landlord wishes to use the land for something other than agriculture and for which planning permission is required, and the permission has been granted.

  • During the last nine months, the Scottish Land Court, on application from the landlord under section 26 of the 1991 Act, has certified that the tenant has not been farming the land properly.

  • The tenant has rent arrears or has broken a term of the lease. The landlord must have given the tenant at least two months' notice to repay the arrears or put right the breach of terms. However, note that:

    - If the tenant has been using the correct procedure to withhold rent because the landlord has not been fulfilling their repairing responsibilities, this will not constitute rent arrears. [5]

    - If the breach of the lease concerns the provision, repair, maintenance or replacement of fixed equipment, [6] the tenant can serve a counter notice and the landlord must apply to the Land Court for consent to the operation of the notice to quit. [7] In this case, the Land Court need only consider whether it would be fair and reasonable to evict the tenant, and need not take into account the section 24 grounds (see below).[8]

  • The tenant has broken a term of their lease and the damage this has caused cannot be put right in a reasonable amount of time and at an economic cost.

  • The tenant has become bankrupt.

  • The tenant inherited the tenancy. However, this ground does not apply if the tenancy was inherited from the tenant's parent, husband or wife; only if the tenancy was inherited from a more distant relative such as a brother or sister, or aunt or uncle.

Grounds apply to the tenant

If any of the grounds listed above are stated in the notice to quit and they do apply to the tenant, the tenant will have no choice but to leave the holding on the date specified in the notice. However, it may be possible for the tenant, or an adviser or solicitor acting on their behalf, to negotiate with the landlord.

Tenant is unsure whether grounds apply

If the tenant is not sure whether the grounds apply, s/he can ask the Land Court for a determination. S/he must notify the landlord that s/he is doing so within a month of the issue of the notice to quit. [9] If the Land Court determines that the tenant is within their rights to issue a counter notice (see below), s/he has one month from the date of the determination to do so. [10]

Grounds do not apply to the tenant

If one or more of the section 22 grounds are stated on the notice to quit but do not apply to the tenant, the tenant should send their landlord a written counter notice within one month of the issue of the notice to quit. The counter notice should state that section 22(1) of the 1991 Act applies to the notice to quit and explain why. [11]

If the landlord still wishes to evict the tenant, s/he must apply to the Land Court for consent to the operation of the notice to quit. S/he must do this within one month of receiving the counter notice. [12]

Grounds not stated on the notice to quit

If none of the section 22 grounds are included in the notice to quit, it will not be valid (unless the tenant inherited the tenancy). [13] The tenant should issue a counter notice, as outlined above.

Consent to operation of notice to quit

If the tenant issues the landlord with a counter notice, the landlord must apply to the Land Court for consent to the operation of the notice to quit, in order to proceed with the eviction. [14]

The Land Court will only consent to the eviction if it is satisfied that one or more of the grounds (set out in section 24 of the 1991 Act exist: [15]

  • The landlord wants to end the tenancy for reasons that are in the interests of good farming practice.

  • The landlord wants to end the tenancy for reasons that are in the interests of the good management of the estate of which the holding forms a part.

  • The landlord wants to use the land for agricultural research, experiment or education.

  • Greater hardship would be caused by not evicting the tenant than by evicting them.

  • The landlord wants to use the holding for something other than agriculture for which planning permission is required but has not yet been granted.

The landlord must state one or more of these grounds in their application for consent.

Even if one or more of the section 24 grounds apply, the Land Court can still decide that the tenant should not be evicted if it is not fair or reasonable or would not be in the interest of the local community to do so. [16]

Land Court consents to the operation of notice to quit

If the Land Court rules in the landlord's favour, the tenant will have to leave the holding.

Postponing the notice to quit

If the landlord has applied for consent to the operation of the notice to quit, or the tenant has applied for a determination concerning the section 22 grounds, the landlord cannot take steps to evict the tenant until the Court's determination on the matter is issued. [17]

If the Land Court's decision on either of these matters is issued later than six months before the date on which the notice to quit states the tenancy is to end, both landlord and tenant can apply to the Land Court within a month of the decision being issued for the notice to quit to be postponed for up to a year. [18]

Notice to quit part of the holding

The landlord may also serve the tenant with a notice to quit part of the holding. The notice will only be valid if it is given because the landlord wishes to:

  • adjust the boundaries between agricultural units, or to amalgamate units or parts of units

  • build farm workers' cottages or other houses

  • provide gardens for farm workers' cottages or other houses

  • provide allotments

  • provide small holdings

  • plant trees

  • use the land for mining or quarrying

  • make a watercourse or reservoir

  • build a road, railway, tramroad, siding, canal or basin, wharf or pier. [19]

The tenant may be entitled to compensation for giving up the land. [20]

If the tenant does not wish to farm a smaller holding

If the tenant does not want to stay on the reduced holding, s/he can serve the landlord with a counter notice extending the notice to quit to cover the whole holding. S/he must do this within 28 days of receiving the notice to quit. [21] This means that when the tenant leaves, s/he can get compensation for the whole farm, provided that:

  • the land the landlord wants back makes up more than a quarter of the value or area of the holding as a whole, or

  • the rest of the holding cannot reasonably be farmed on its own.

If this is not the case, the tenant will only get compensation for the part the landlord originally wanted to resume. [22]

The tenant will also be entitled to a reduction in rent. [23]

Application to the Land Court and resolution of disputes

Application forms for the notices mentioned above can be downloaded from the Scottish Land Court website.

Any disputes over the termination of the tenancy can be referred to the Land Court. [24] In some cases, the landlord and tenant can also agree to refer the matter to arbitration. [25]

Last updated: 29 December 2014

Footnotes

  • [1]

    s.21(1) Agricultural Holdings (Scotland) Act 1991

  • [2]

    s.21(3)(c) Agricultural Holdings (Scotland) Act 1991

  • [3]

    s.21(3)(d) Agricultural Holdings (Scotland) Act 1991

  • [4]

    s.22(2) Agricultural Holdings (Scotland) Act 1991

  • [5]

    s.15A(8) Agricultural Holdings (Scotland) Act 1991, inserted by s.64 Agricultural Holdings (Scotland) Act 2003

  • [6]

    s.32(1) Agricultural Holdings (Scotland) Act 1991

  • [7]

    s.32(2) Agricultural Holdings (Scotland) Act 1991

  • [8]

    s.32(5) Agricultural Holdings (Scotland) Act 1991

  • [9]

    s.23(2) Agricultural Holdings (Scotland) Act 2003 as amended by sch. para. 21(a) Agricultural Holdings (Scotland) Act 2003

  • [10]

    s.23(3) Agricultural Holdings (Scotland) Act 1991 as amended by sch. para. 21(b) Agricultural Holdings (Scotland) Act 2003

  • [11]

    s.22(1) Agricultural Holdings (Scotland) Act 1991

  • [12]

    s.23(1) Agricultural Holdings (Scotland) Act 1991

  • [13]

    s.22(2) Agricultural Holdings (Scotland) Act 1991

  • [14]

    14

  • [15]

    s.24(1) Agricultural Holdings (Scotland) Act 1991

  • [16]

    s.24(2) Agricultural Holdings (Scotland) Act 1991 as amended by s.67(2)(a) Agricultural Holdings (Scotland) Act 2003

  • [17]

    s.23(4) Agricultural Holdings (Scotland) Act 1991 as amended by sch. para. 21(c) Agricultural Holdings (Scotland) Act 2003

  • [18]

    s.23(5) Agricultural Holdings (Scotland) Act 1991 as amended by sch. para. 21(d) Agricultural Holdings (Scotland) Act 2003

  • [19]

    s.29 Agricultural Holdings (Scotland) Act 1991

  • [20]

    s.49(1) Agricultural Holdings (Scotland) Act 1991

  • [21]

    s.30 Agricultural Holdings (Scotland) Act 1991

  • [22]

    s.43(7) Agricultural Holdings (Scotland) Act 1991

  • [23]

    s.31(1) Agricultural Holdings (Scotland) Act 1991 as amended by sch. para. 22(a) Agricultural Holdings (Scotland) Act 2003

  • [24]

    s.60 Agricultural Holdings (Scotland) Act 1991, substituted by s.75 Agricultural Holdings (Scotland) Act 2003

  • [25]

    s.61 Agricultural Holdings (Scotland) Act 1991, substituted by s.76 Agricultural Holdings (Scotland) Act 2003. s.61(2)(a) lists the exceptions.