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Land reform, step by step

20 March 17

Agriculture briefing: five orders have been made to date, bringing in various provisions of the Land Reform (Scotland) Act 2016, and many more are expected. This note summarises what is known so far

by Adèle Nicol

The Land Reform (Scotland) Act 2016 received Royal Assent on 22 April 2016. Most of its provisions are to be commenced by SSIs; so far, there have been five. This is a summary of these, and what remains to be commenced.

1. SSI 2016/193

On 28 June 2016: shootings and deer forests returned to the valuation roll; a legislative amendment facilitated change of use of land forming part of the common good; and Scottish Natural Heritage acquired additional powers and duties in respect of deer management. From 1 October 2016, Scottish ministers came under a duty to create and lay before the Scottish Parliament a land rights and responsibilities statement by 1 October 2017, after which they will be bound to promote the statement in exercising their functions.

2. SSI 2016/250

On 1 November 2016, the Scottish Land Commission (SLC) was enabled to be set up, and
s 44 (engaging communities in decisions relating to land) commenced.

The provisions on the Tenant Farming Commissioner come into force on 1 April 2017 (except as respects modern limited duration tenancies (MLDT) and repairing tenancies (RT), deferred to a later date), as do the SLC provisions in full. The exception is s 22(3)(a)(i), which provides that “In exercising their functions the Land Commissioners must have regard to the land rights and responsibilities statement” – commencement of which is postponed to 1 October 2017, by which date the statement will have been published.

3. SSI 2016/365

The 23 December 2016 brought changes to the law of agricultural holdings: the pool of people able to succeed to or be assigned either a tenancy under the Agricultural Holdings (Scotland) Act 1991 or a limited duration tenancy has been expanded; there is a new notice requirement for landlords’ improvements, and a tenant’s opportunity to object; a landlord is now limited to one request for information on a diversification proposal; and a landlord of a limited duration or short limited duration tenancy wishing to irritate the lease for non-payment of rent must serve a demand giving two months’ notice for payment.

The duty on Scottish ministers to “review the legislation governing smallholdings, and lay a report of that review before the Scottish Parliament no later than 31 March 2017” commenced on the same day. So did certain provisions, for the purpose of making regulations only, on: MLDTs and RTs; sale where a landlord is in breach of an award; relinquishment of a 1991 Act tenancy; and rent review. MLDTs, RTs and relinquishment are possibly the provisions of most interest to landlords and tenants, and the writer is certainly aware of a sense of frustration in the agricultural sector at the lack of concrete dates for when they become operative law.

4. SSI 2016/372

On 31 December 2016 changes to the Land Reform (Scotland) Act 2003 on core path plans came into force, including requiring local authorities to notify affected landowners of any proposed amendments to the plan. The Act was also amended to require service of the court application on a person who it is alleged has not been exercising access rights responsibly.

5. SSI 2017/20

The amnesty for certain tenants’ improvements will commence on 13 June 2017 and last for three years (subject to transitory provisions which apply until the commencement of the MLDT for all purposes). The amnesty is a means of rescue for tenants whose claim for compensation against the landlord for improvement costs would otherwise be excluded for want of following the statutory procedure, under which prior notice should have been served on the landlord. It is not a miscreants’ charter: improvements carried out without the consent of the landlord, or where consent was obtained but substantially deviated from, or carried out in contravention of a Land Court order are excluded from the amnesty.

On 3 February 2017, the Independent Adviser on Tenant Farming (“IATF”) published a Guidance Note for Landlords, Tenants and their Agents on Preparing for the Improvements Amnesty. It is not a guide to the statutory procedure (which it summarises), on which professional advice should be sought. Rather, it advises that steps should be taken now in preparation for the amnesty. As with previous IATF guidance, a collaborative approach between landlord and tenant is encouraged and a suggested structure is given. The importance of collecting evidence is highlighted, together with its potential importance should any matter come before the Land Court.

What is left?

Still without dates for commencement are the provisions on: information about control of land; the right to buy land to further sustainable development; removing the requirement to register a 1991 Act tenant’s right to buy; full implementation of MDLTs and RTs; forced sale where landlord is in breach; relinquishment of 1991 Act tenancies; and changes to rent review. It is anticipated that there will be multiple further SSIs, with a year between commencement of MDLTs and of RTs, the former being introduced first.

Adèle Nicol, partner, Anderson Strathern LLP 

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