Subletting, assignation and succession in 1991 Act tenancies

This page outlines the rights of 1991 Act agricultural tenants to sublet and assign their tenancies, or to bequeath them to their successors.

If a tenant is considering any of these it is recommended to seek advice from a solicitor who specialises in agricultural law.

This content applies to Scotland

Subletting the holding

Even if the lease prohibits subletting, the tenant can sublet the land as part of a diversification plan, providing they go through the correct process (see the page on diversification). [1] Otherwise, the Agricultural Holdings Acts do not give tenants a right to sublet their holdings, so this will need to be agreed between the tenant and landlord.

Assignation

Provided they get their landlord's consent, tenants have the right to assign their tenancy to their spouse or civil partner, or to a blood relative, for example a child, sibling, aunt or uncle. [2] The tenant must give the landlord notice in writing, telling them:

  • who they propose to assign the tenancy to

  • what the terms and conditions of the assignation will be

  • the date on which they wish to assign the tenancy [3]

The landlord can refuse to consent to the assignation if they have reasonable grounds to do so, in particular if they think that the proposed assignee will not be able to pay the rent or maintain the land properly. [4] The landlord must let the tenant know their decision in writing within 30 days. If they do not, the tenant can assume that their landlord consents to the assignation. [5]

From 28 February 2021 a tenant can relinquish the tenancy on payment by the landlord. [6] The amount of payment is based on the value of the tenancy and any qualifying improvements. Where the landlord does not agree to pay the valuation figure then the tenant can assign the tenancy to a 'new entrant' or 'progressing' farmer and receive a payment from the new tenant instead. [7]

Succession

A tenant has the right to bequeath their tenancy to any of the following people:

  • a spouse or civil partner

  • a blood relative (for example, a child, sibling or parent)

  • a step-child

  • a child or step-child’s spouse or civil partner [8]

On the death of the tenant the legatee must:

  • give the landlord notice of the bequest within 21 days, or

  • as soon as is practicable afterwards if they are prevented from doing so by an unavoidable cause [9]

The landlord has the right to object to the bequest, [10] in which case the legatee can appeal to the Land Court. [11] The tenancy will pass to the next successor following the rules under section 16 of the Succession (Scotland) Act 1964 if:

  • the tenant dies without leaving a will, or

  • the legatee refuses the bequest, or

  • the landlord objects to the bequest and their objection is upheld by the Land Court [12]

A person who acquires a lease in this way must notify the landlord within 21 days of the acquisition date, [13] or as soon as is practically possible afterwards. The landlord has the right to object, and can apply to the Land Court for an order to terminate the tenancy. [14]

It is important to note that the 21 day period is a strict time limit and can only be waived in exceptional circumstances.

Last updated: 3 August 2021

Footnotes

  • [1]

    s.39(3) Agricultural Holdings (Scotland) Act 2003

  • [2]

    s.10A(1) Agricultural Holdings (Scotland) Act 1991, inserted by s.66 Agricultural Holdings (Scotland) Act 2003

  • [3]

    s.10A(2) Agricultural Holdings (Scotland) Act 1991, inserted by s.66 Agricultural Holdings (Scotland) Act 2003

  • [4]

    s.10A(3) Agricultural Holdings (Scotland) Act 1991, inserted by s.66 Agricultural Holdings (Scotland) Act 2003

  • [5]

    s.10A(4) Agricultural Holdings (Scotland) Act 1991, inserted by s.66 Agricultural Holdings (Scotland) Act 2003

  • [6]

    32C Agricultural Holdings (Scotland) Act 1991

  • [7]

    32U (2) Agricultural Holdings (Scotland) Act 1991

  • [8]

    s.11(1) Agricultural Holdings (Scotland) Act 1991, s.2 Succession (Scotland) Act 1964

  • [9]

    s.11(2) Agricultural Holdings (Scotland) Act 1991

  • [10]

    s.11(4) Agricultural Holdings (Scotland) Act 1991

  • [11]

    s.11(5) Agricultural Holdings (Scotland) Act 1991

  • [12]

    s.11(8) Agricultural Holdings (Scotland) Act 1991

  • [13]

    s.12(1) Agricultural Holdings (Scotland) Act 1991

  • [14]

    s.12(2) Agricultural Holdings (Scotland) Act 1991