Possession by the tenant following the expiry of a seasonal let: the continuing problem for landlords
Posted: January 23, 2007
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The Continuing Problem for Landlords.pdf
This article is reproduced with the permission of the Scots Law Times.
The recent article by Craig Anderson commenting on the case of Bell v Inkersall Investments Ltd, 2006 SLT 626, 2006 SC 507, ends with an optimistic conclusion. That optimism is, I fear, misplaced.
The article says that prudent agents will not doubt pass on the advice, referred to by the Hon Lord Gill in The Law of Agricultural Holdings in Scotland, (3rd ed, 1997) at para 4.17, that landlords should ensure that on the expiry of a seasonal let the tenant removes his stock from the land, even if the let is soon to be renewed. It is then suggested that, as a consequence of the decision in Bell, where this is not done agents for landlords will be able to advise with a reasonable degree of certainty that in the absence of special circumstances the tenant would be unable to establish that an agricultural lease has been constituted. For the reasons set out below, giving such advice could lead to landlords experiencing more problems rather than less.
There are two important things to note about the decision in Bell. First of all the seasonal grazing lets that were being founded upon by the pursuer in that case were not continued after 2003. Secondly, the legal consequence of a tenant remaining in possession has been materially altered by the Agricultural Holdings (Scotland) Act 2003. Because the factual circumstances with which Bell was concerned relate to historical events which pre-date the changes brought about by the 2003 Act, the case contains no comment about the implications of the new legislation, and there is no mention anywhere of the 2003 Act. It is therefore important to bear in mind when reading the case that Section 2(2) of the Agricultural Holdings (Scotland) Act 1991 has been repealed, and with effect from 27 November 2003 a new regime under Section 3 and Section 4(2) of the 2003 Act now applies to tenants who remain in occupation of the land after the expiry of a seasonal grazing let.
In many respects the provisions under Section 3 of the 2003 Act simply repeat and make clearer what was permitted under Section 2(2)(a) of the 1991 Act. Both sections specify that they apply where the land is to be used for the purposes of grazing or mowing only. Both sections specify that this use is to be during some specified period of the year. Section 3(2) of the 2003 Act states that the tenancy is not to be constituted for a period of more than 364 days. This reflects the previous understanding under the 1991 Act that the lease could be for 364 days because that was a specified period which was less than a year, Reid v Dawson, [1955] 1 QB 214.
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