by Danielle McLean, Trainee Solicitor
The Scottish tenant farming commissioner (TFC), Bob McIntosh, has published a guide which outlines the ways in which an agricultural tenancy can be passed on by a tenant to a successor.
What does the guide cover?
The guide summarises the extensive legislation on this topic, and discusses the three ways by which an agricultural tenancy can be transferred:
- by lifetime assignation;
- by a bequest in a will; and
- by an tenant’s executors where no specific provision was made for the transfer of the tenancy in a will, or where no will was made.
The guide distinguishes between the rules applicable to 1991 Act tenancies and the more modern fixed duration tenancies, and highlights the need for the landlord to consent to the tenancy transfer. It also sets out who the tenancy can be transferred to, and outlines the grounds upon which the landlord has a right to object to a transfer. The guide describes the procedures that must be followed when enacting the transfer, and highlights the often time sensitive nature of these procedures.
What is missing from the guide?
The guide itself is not exhaustive, and the TFC notes that ‘it is not intended to cover every situation, for example tenancies held by more than one person as tenant; nor does it give detail on the exact procedures to be followed’.
It does however provide a welcome and useful starting resource for tenants who are considering succession planning in the context of their farming business.
The TFC highlights within the guide the need for both tenants and landlords to take appropriate legal and taxation advice when the transfer of a tenancy is being considered. If this is something that you require, please contact us on 0131 228 8111 or through our website.