Emma Robertson
Emma Robertson is accredited by the Law Society of Scotland as a Specialist in Agricultural Law. She has experience across the board in respect of all aspects of rural legal work from the purchase and sale of farms and estates to onshore renewables. Emma has a particular interest in agricultural law and acts for both landlords and tenants across Scotland. Her experience includes the preparation of new agricultural leases including 1991 Act tenancies and fixed duration tenancies, advising on aspects of tenancies including rent reviews, tenant’s improvements, the relinquishment procedure, succession and waygo.
Practice Area
Panel
- Contributing Author
Membership
- Law Society of Scotland – Accredited as a Specialist in Agricultural Law
- Agricultural Law Association
Qualifications
- LLB (Hons)
- Dip LP
Education
- University of Aberdeen
11 Contributions by Emma Robertson
PRACTICE NOTES
Agricultural holdings disputes in Scotland: Scottish Land Court jurisdiction, exceptions, procedures and remedies; arbitration, mediation and appeals
For many years, virtually every disagreement about agricultural tenancies was sent to arbitration at the outset. The rationale was that questions concerning agricultural holdings often have a strong practical dimension, so arbitration was thought a more suitable forum than the courts. This reflected the earlier assumption that practical considerations predominated in such cases, making a court reference less apt back then. Over time, however, matters of considerable legal intricacy also came before arbitrators. With the enactment of the Agricultural Holdings (Scotland) Act 2003 (AH(S)A 2003), policy shifted, and the main route for resolving disputes about agricultural tenant issues is now referral to the Scottish Land Court. At the same time, arbitration procedures were streamlined, and alternative processes, eg mediation, were enabled. Although the Agricultural Holdings (Scotland) Act 1991 (AH(S)A 1991) still sets out distinct mechanisms for dispute resolution, AH(S)A 2003 has substantially reshaped them, so that the arrangements for resolving disputes under 1991 Act Tenancies are, in large part, aligned with those for 2003 Act Tenancies...
Property
PRACTICE NOTES
Agricultural holdings: tenant diversification under the Agricultural Holdings (Scotland) Act 2003 - procedure, landlord objections, Land Court, rent and compensation
Diversification at common law
Diversification, i.e. employing the holding for a non-agricultural end not authorised by the lease, would, at common law, amount to a breach of the lease and, in many instances, could additionally trigger a conventional irritancy, in appropriate circumstances and contexts, by the landlord as well. For more detail, see: Diversification: Stair Memorial Encyclopaedia [107K].
Statutory Diversification
Part 3 of the Agricultural Holdings (Scotland) Act 2003 (AH(S)A 2003) confers on agricultural tenants a right to diversify by putting the land to a non-agricultural use. That right extends to 1991 Act Tenancies and to 2003 Act Tenancies, save for short limited duration tenancies (SLDTs). Although diversification may, at common law, constitute an inversion of possession and change the character of the lease from that of an agricultural holding (to which the Agricultural Holdings (Scotland) Acts apply), if—and only if—the statutory process is observed, the lease continues to be agricultural in nature despite the altered use. The legislation does not seem to preclude the possibility that, in principle, the entirety of the land let under the lease might be used for a diversified purpose. Not every activity that could, in general terms, be labelled ‘diversified’ enjoys protection...
Property
PRACTICE NOTES
Agricultural tenants’ pre-emptive right to buy in Scotland: 1991 Act tenancies, registration, triggers, exceptions, valuation, Land Court procedure, and forthcoming reforms
Agricultural tenants’ right to buy
An agricultural tenant’s entitlement to purchase was established in Scotland by the Agricultural Holdings (Scotland) Act 2003 (AH(S)A 2003). It is a pre-emptive, rather than an absolute, right to buy, because a tenant may exercise it only when the owner proposes to sell the tenanted land concerned. This Practice Note explains the right to buy as it was enacted in AH(S)A 2003. A statutory right to buy under AH(S)A 2003 applies solely to tenants whose agreements are regulated by the Agricultural Holdings (Scotland) Act 1991 (AH(S)A 1991), commonly referred to as 1991 Act tenancies (see Practice Note: Agricultural holdings in Scotland—snapshot—1991 Act Tenancies). The practical background and context behind introducing the right to buy is that:
1991 Act tenancies may continue indefinitely, and
a 1991 Act tenancy markedly depresses the value to the owner of a piece of agricultural property
Ordinarily, where an owner intended to sell a property subject to a 1991 Act tenancy, they would frequently seek to negotiate with the tenant farmer so as to sell it directly to them...
Property
PRACTICE NOTES
Fixed equipment in Scottish agricultural tenancies under the Agricultural Holdings (Scotland) Acts 1991 and 2003: duties, maintenance, records and remedies
The Agricultural Holdings (Scotland) Act 1991 (AH(S)A 1991) requires that every tenancy created under it (1991 Act Tenancies) contains specified maintenance obligations. Similar—though not identical—provisions appear in the Agricultural Holdings (Scotland) Act 2003 (AH(S)A 2003) for short limited duration tenancies (SLDTs) of up to five years, limited duration tenancies (LDTs) of at least ten years, and modern limited duration tenancies (MLDTs) running for ten years or more. These are collectively termed 2003 Act Tenancies. See Practice Note: Agricultural holdings in Scotland—snapshot.
Definition of fixed equipment
Section 85 of AH(S)A 1991 defines ‘fixed equipment’ to include:
all man-made works on the land—such as drains, bridges, fences and tracks—together with buildings and any installed machinery of whatever kind
anything cultivated on the land for a purpose other than use after severance, consumption of what is grown or its produce, or amenity—for example, hedges and shelter belts of trees or shrubs
any item may constitute fixed equipment, irrespective of how it came to be there
This definition applies across both 1991 Act Tenancies and 2003 Act Tenancies...
Property
PRACTICE NOTES
Practitioner guide to Scottish agricultural holdings law: 1991 and 2003 Acts; SLDT, LDT, MLDT, repairing, grazing; rent review, succession, diversification, termination, resumption, waygo, limited partnerships, Land Court, TFC, and reforms.
Letting farmland is tightly governed by law. In Scotland, ordinary commercial leases are influenced by statute only to a limited extent, whereas for agricultural property the opposite applies...
Types of Agricultural Leases
There are four categories of agricultural lease:
1991 Act Tenancies, often termed ‘traditional’ or ‘secure’ tenancies, regulated by the Agricultural Holdings (Scotland) Act 1991 (AH(S)A 1991)
2003 Act Tenancies, of which there are several forms, regulated by the Agricultural Holdings (Scotland) Act 2003 (AH(S)A 2003)
grazing tenancies
unusual tenancies, principally liferent leases and indefinite tenancies, which are not covered in this Practice Note
Crofting tenancies distinguished from agricultural leases
Although a lease in legal terms, a croft tenancy held by the crofter constitutes the primary interest in the croft land occupied. Landlords of crofts hold very limited rights. While a croft began in its 19th-century origins as a small area of land worked by the crofter, the number of crofters now actively engaged in agriculture is far lower than the number of crofts...
Property
PRACTICE NOTES
Rent review of 1991 Act agricultural holdings in Scotland: statutory basis, intervals and notice, TFC Code, Land Court applications, valuation factors, and proposed ‘fair rent’ reforms
Contractual and statutory basis of rent review and time intervals Tenants under 1991 Act
Tenants with 1991 Act tenancies enjoy strong security of tenure together with statutory tacit relocation. While parties may set out rent review terms within the lease itself, rent adjustment is, subject to that, governed by the Agricultural Holdings (Scotland) Act 1991, s 13 (AH(S)A 1991), which provides for variations in rent once the contractual ish has passed and at specified intervals thereafter. As the vast majority of 1991 Act leases continue on tacit relocation, rent review is, in almost all instances, determined by AH(S)A 1991, s 13. This statutory scheme cannot be excluded by agreement, although the parties may consensually alter the rent at any time. In Moll v McGregor 1990 SLT (Land Ct) 59 (not reported by LexisNexis®), one lease dated from 1944 and another from an earlier period. In 1977 the parties attempted to amend a lease then continuing on tacit relocation by tying rent review to indexation. It was held that it was not competent to contract out of the statutory rent review mechanism in 1991 Act, s 13. This does not, however, mean that where the parties agreed a completely...
Property
PRACTICE NOTES
Rent review of SLDT, LDT, MLDT and repairing agricultural tenancies in Scotland: statutory scheme, notices, Land Court, TFC Code, valuation factors, landlord improvements and proposed fair rent reforms
2003 Act Tenancies
Most tenancies under the 2003 Act—SLDTs, LDTs, MLDTs and, when commenced, repairing tenancies—are presently continuing on their contractual term rather than by tacit relocation. At the moment SLDTs and LDTs remain in being and, where the lease is silent, rent reviews fall under section 9 of the Agricultural Holdings (Scotland) Act 2003. From 1 December 2017, the creation of new LDTs ceased (subject to the transitory provisions in the Land Reform (Scotland) Act 2016 (Commencement No. 6, Transitory and Saving Provisions) Regulations 2017 (SSI 2017/299)), and MLDTs became available. Repairing tenancies have yet to commence, but the provisions outlined in this Practice Note will also apply to them. The rent review approach assumes the landlord is deemed to let not the farm as it stands, but only the farm benefiting from those items of fixed equipment provided by the landlord. In reality, this is often considerably less than what is actually present on the farm. For details regarding 1991 Act Tenancies, see Practice Note: Rent review under 1991 Act agricultural tenancies...
Property
PRACTICE NOTES
Resumption in Scottish Agricultural Tenancies: 1991 and 2003 Act Rights, SLDT/LDT/MLDT Procedures, Fraud on the Lease, Compensation, Rent Reductions and Partial Notices to Quit
A lease of agricultural land will often feature a provision enabling the landlord to take back part of the holding in specified situations. For 1991 Act Tenancies, resumption is mainly controlled by the lease terms, aside from rules on the tenant’s entitlement to compensation. A landlord may only recover land from an agricultural holding under a 1991 Act Tenancy where the lease expressly grants that authority. In Pigott v Robson (1958 SLT 49 (not reported by LexisNexis®)) it was found that the lease terms were not sufficiently wide to permit the landlord to resume in order to farm the ground personally. There are no statutory resumption rights for 1991 Act Tenancies under the Agricultural Holdings (Scotland) Act 1991 (AH(S)A 1991). For 2003 Act Tenancies, the Agricultural Holdings (Scotland) Act 2003 (AH(S)A 2003) permits the landlord to resume in short limited duration tenancies (SLDTs), limited duration tenancies (LDTs) and modern limited duration tenancies (MLDTs) in all cases unless the lease specifically forbids it.
Resumption in 1991 Act Tenancies
The terms of the lease will determine whether:
there are specific purposes for which the...
Property
PRACTICE NOTES
Scottish agricultural subsidies: BPS, SSBSS, SUSS, LFASS and SRDP—eligibility, entitlements, transfers, compliance and appeals (post‑Brexit framework)
The current administration of the agricultural subsidy schemes in Scotland
The management of Scotland’s farm subsidy programmes is run by the Scottish Government Rural Payments and Inspections Department (RPID), also referred to as the Agriculture Food and Rural Communities Directorate (AFRCD). RPID oversees a range of EU and National subsidy schemes, largely through the Integrated Administration and Control System (IACS)—hence the term ‘IACS Forms’. Despite ongoing computer difficulties, applicants must still complete the necessary forms, in hard copy or online, typically each year and by scheme-specific closing dates, to secure subsidy. Following the UK’s withdrawal from the EU, the Scottish Government has had to establish its own legal framework to adjust the effect of retained EU law related to the Common Agricultural Policy (CAP), and to facilitate the collection and processing of agricultural data. Sections 1–12 of The Agriculture (Retained EU Law and Data) (Scotland) Act 2020 (A(REULD)(S)A 2020) concern retained EU law and regulations, being those carried into domestic law by virtue of the European Union (Withdrawal) Act 2018, the Direct Payments to Farmers (Legislative Continuity) Act 2020, or any other enactment that the Scottish Ministers may specify by regulations...
Property
PRACTICE NOTES
Scottish agricultural tenancies: statutory and contractual irritancy—grounds, statutory exceptions, procedure, defences and compensation under the Agricultural Holdings (Scotland) Acts 1991 and 2003 (SLDTs, LDTs, MLDTs)
This Practice Note outlines the grounds and scope of irritancy in 1991 Act Tenancies (regulated by the Agricultural Holdings (Scotland) Act 1991 (AH(S)A 1991)) and 2003 Act Tenancies (regulated by the Agricultural Holdings (Scotland) Act 2003 (AH(S)A 2003)), namely the following:
short limited duration tenancies (‘SLDTs’)
limited duration tenancies (‘LDTs’), and
modern limited duration tenancies (‘MLDTs’)
Legal and conventional irritancy in 1991 Act Tenancies
A 1991 Act Tenancy can be terminated prematurely on the ground of legal irritancy or conventional irritancy, where legally relevant.
‘Legal’ or statutory irritancy provisions
AH(S)A 1991, s 20 makes provision for legal (statutory) irritancy in 1991 Act Tenancies. It permits an action to remove the tenant at the next Whitsunday or Martinmas (28 May or 28 November) after the action is duly raised in the sheriff court where six months’ rent of an agricultural holding is owed and unpaid. The sheriff must grant decree against the tenant unless the tenant can pay the rent outstanding and a further year’s rent, or offer sufficient security, to the sheriff’s satisfaction, for that sum. As this irritancy can be purged by paying the arrears or finding caution before a decree of removing is extracted, it is very rarely...
Property
PRACTICE NOTES
Scottish agricultural tenancies: statutory improvements and tenants' fixtures—consent/notice, landlord objections, rent, removal, and compensation/valuation at waygo (1991 and 2003 Acts)
Agricultural tenants’ improvements and tenants’ fixtures in agricultural tenancies
There are key distinctions between improvements made by agricultural tenants and tenants’ fixtures in agricultural tenancies. This Practice Note sets out those distinctions and summarises the respective duties and rights of landlord and tenant in clear terms. It expressly excludes the ‘improvements amnesty’ contained in section 34A of the Agricultural Holdings (Scotland) Act 1991 (AH(S)A 1991).
At common law, fixtures and other additions introduced by the tenant revert to the landlord on expiry of the lease.
Because many agricultural leases endure for long periods, and may continue indefinitely by succession, the AH(S)A 1991 permits tenants to enhance the let holding and receive compensation from the landlord for such works when the tenancy ends.
Broadly, in all agricultural tenancies except repairing tenancies and grazing lets (subject to differing rules for the various tenancy types), landlords must supply the fixed equipment needed to operate the farm (which may include buildings). See Practice Note: Buildings and other fixed equipment in agricultural tenancies in Scotland...
Property
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