Category: TF News

Tenant Farming Commissioner publishes Conduct of Agents Guide

Scotland’s Tenant Farming Commissioner (TFC), Bob McIntosh, has today published a Guide to the Professional Conduct of Agents and How to make a Complaint.

The guide is to help landlords and tenants to understand what standards of conduct they should expect from a professional agent, and the actions that they should take to help ensure that any instances of poor conduct are addressed promptly and effectively.

It has been developed as part of the recommendations made by the TFC to Scottish Ministers following a review of the conduct of agents of agricultural landlords and tenants.

The review found that landlords and tenants were generally satisfied by the conduct of agents working on their behalf but less so with that of agents acting on behalf of the other party. Overall, 17 per cent of both landlords and tenants were dissatisfied with the conduct of an agent and dissatisfaction was generally linked to behaviour rather than to any lack of technical or legal knowledge on the part of the agent.

The professional standards and the codes of practice, along with the associated complaints systems, should ensure that agents can be held to account in most circumstances where there is a failure in respect of conduct or standard of service but in practice few such complaints are made.

Bob McIntosh explains “The professional standards and complaint systems have an important part to play in driving up standards and dealing with bad practice, so it is vital that the system is widely understood and is readily accessible.

“This guide provides a handy checklist for anyone considering employing a professional agent, some general principles of good practice that should always be followed and information about how to make a complaint.

“Most agents perform their duties in a professional manner but the actions of a small minority can have a disproportionate effect on the reputation of the agent, their employers or their profession.  It is important that landlords and tenants do complain about the unacceptable conduct of agents so that standards can be raised and poor behaviour addressed.”

The Guide is available at https://landcommission.gov.scot/tenant-farming/codes-of-practice/

Agreement reached over Borders tenant farmer

The Scottish Tenant Farming Commissioner announced today that a solution had been found to enable a tenant farmer to remain on a farm he rented from Buccleuch Estates.

David and Alison Telfer occupy Cleuchfoot Farm on Buccleuch’s Borders Estate on a short-limited duration tenancy.

The estate had granted a new tenancy until November 2019 – 21 months beyond the end date of the previous lease – and had put the farm and adjoining hill ground up for sale. The couple wished to remain on the farm until retirement and said they had received a verbal assurance from the previous Duke of Buccleuch.

Buccleuch approached the Tenant Farming Commissioner and the acquirer of the land, James Jones & Sons Ltd, in an effort to find a solution.

Bob McIntosh, Tenant Farming Commissioner, said: “Landlords are entitled to resume land at the end of a fixed term tenancy but there was an extraordinary set of circumstances in this case where there was a dispute over what had been discussed in years gone by in terms of the length of occupancy. We are pleased that, through collaborative discussion, a satisfactory outcome has been achieved for the tenant, the new landlord and all other parties.”

Mr David Telfer said: “We appreciate the efforts of all those involved who have worked to find a resolution to this issue and we are pleased to be able to continue to live and work on at least part of Cleuchfoot until our retirement.”

Benny Higgins, executive chairman of Buccleuch, commented: “We were pleased that our proposal found agreement with all the parties involved and thank the Tenant Farming Commissioner for his constructive liaison with the tenant.”

Tenant Farming Commissioner publishes Tree Planting Guide

Scotland’s Tenant Farming Commissioner (TFC), Bob McIntosh, has today published a Guide to Tree Planting on Tenanted Agricultural Holdings.

The guide provides information for landlords and tenants who might be considering planting trees on tenanted agricultural holdings.

With the current economic uncertainty surrounding agriculture, and increased pressure on business margins, more farm businesses are looking to diversify in to a range of different non-agricultural activities to support the future of the business. This, along with a focus by Scottish Government on increasing woodland in Scotland, is causing more farmers and landowners to consider the pros and cons of woodland creation.

This guide outlines the rights of both tenants and landlords  to plant trees and provides information on applying for permission to plant.

It is important that tenants and landlords considering planting trees use this guide to understand their rights, comments TFC Bob McIntosh.

“The guide highlights four basic scenarios where tenants and landlords are likely to see tree planting on holdings as valuable and provides clarity on who is able to do what and when.

“A tenant of a secure tenancy or a limited duration tenancy wishing to use the land for a non-agricultural purpose such as tree planting can now do so provided they obtain written consent for the diversification activity.”

In welcoming the publication of the new guidance, Rural Economy Secretary Fergus Ewing added:

“This is very welcome advice and will help in the national endeavour to expand our forests and woodlands in Scotland.

“Tenant farmers can gain many benefits from new tree planting on their holdings, especially as it can help to improve their business and diversify their income.

“I’m keen to see a growth in woodland cover across Scotland but it needs to be carried out in an integrated way with other land uses. This simple and clear guide helps to lay out for both landowners and tenants how new woodlands could work for them and the benefits that can potentially be realised by all parties from planting trees in the right places.”

The Guide also provides important information about waygo compensation which the landlord or the tenant may be entitled to upon termination of the lease.”

The Guide is available at https://landcommission.gov.scot/tenant-farming/codes-of-practice/

Tenant Farming Commissioner issues Agricultural Leases Code of Practice

Scotland’s Tenant Farming Commissioner (TFC), Bob McIntosh, has issued a Code of Practice for Agreeing and Managing Agricultural Leases which is to be followed by landowners, tenant farmers and land agents.

The Code of Practice for Agreeing and Managing Agricultural Leases is the sixth to be published by the Commissioner and is intended to ensure that there are robust procedures in place to avoid misunderstandings when a lease is being entered into, when changes are made throughout the term of the lease and when a fixed duration lease is being ended.

The Code sets out some simple principles and practices to follow, by both the tenant farmer and the landlord, as Bob McIntosh explains:

“A decision to sign up to an agricultural lease is one which results in responsibilities and liabilities and should not be taken lightly and without considering the full consequences and implications. Time should be allowed for both parties to negotiate, agree and understand the terms of the lease. In the case of fixed duration leases it is important that both parties are clear about what is likely to happen when the lease has reached the end of its term.

“Misunderstandings, disagreements and disappointments often occur during the term of the lease because verbal agreements are not followed up in writing so it is essential that any agreements made are properly recorded.”

Ending a fixed duration lease can be a difficult outcome for the tenant so it is important that discussions take place in good time about the prospects for renewal and the consequences for both parties of a decision not to renew.

The Code has been developed in consultation with Scottish Tenant Farmers Association, NFU Scotland, Scottish Land & Estates, the Royal Institution of Chartered Surveyors and the Scottish Agricultural Arbiters and Valuers Association (SAAVA). so that, wherever possible, agreed positions are reasonable and fair to both landlords and tenant farmers. 

The TFC is responsible for issuing a suite of codes to guide and shape the behaviours and processes which accompany the interactions and negotiations between landlords and tenants, including agents and intermediaries acting for either party.  As with all codes issued by the Tenant Farming Commissioner, if a landlord or tenant feels that the other party, or an agent of that party, has acted in a way that breaches the code of practice they are able to report the alleged breach to the Commissioner.

The Code of Practice for Agreeing and Managing Agricultural Leases can be found on the Land Commission’s website www.landcommission.gov.scot.

Practical on-farm amnesty days call for tenant farmers to act now

A series of meetings held across Scotland have called for tenant farmers to act now to record and agree improvements as part of the tenant amnesty.

Last week saw the conclusion of a round of meetings, held by the Scottish Tenant Farmers Association (STFA), supported by the Scottish Land Commission, which demonstrated and explained to tenant farmers how to carry out the amnesty for tenant’s improvements. 

Tenant farmers have until June 2020 to consider if they have improvements to notify their landlord about and the practical meetings held over the last few months opened up discussion with tenants and land agents about the process.

The meetings took place on farms across the country and provided practical examples of tenant’s improvements and fixtures alongside practical discussion about the nature of the improvement and if they were eligible for the amnesty.

The meetings also provided step by step guidance on going through the amnesty process and explaining what evidence and information is required to demonstrate that the improvement was carried out by the tenant.

Commenting on the importance of the amnesty Tenant Farming Commissioner, Bob McIntosh said:

“The meetings have been a good opportunity to encourage tenant farmers to begin the amnesty process and to prepare a definitive list of improvements that may be eligible for compensation at waygo.  Tenants may be able to claim for the improvements even if some procedures weren’t followed when they were initially made.

“It is really important to emphasise that this amnesty is only taking place for three years – and we’re half way through already.  If tenant farmers have not started, they need to get started now.”

STFA Chairman Christopher Nicholson said:

“Completing the tenants’ amnesty is one of the most important tasks most tenants will ever undertake. Not only will this regularise and record improvements, but identifying tenant’s improvements and fixtures will be essential for the new rent test due to be rolled out in the next year or so.

“The amnesty has the full support of the industry so it is surprising that such a small number of tenants seem to be taking advantage of the amnesty and we would urge all tenants to get involved before it is too late,’

More information about the amnesty can be found on www.landcommission.gov.scot/tenants-amnesty-campaign

Housing on tenanted farms to meet the Repairing Standard

Scotland’s Tenant Farming Commissioner (TFC), Bob McIntosh, is advising that the agricultural holdings sector needs to come together to agree a way forward to ensure agricultural housing is subject to the same standards as private rented housing.

Currently most housing on tenanted farms is subject to the tolerable standard – a house that falls below it is not acceptable as living accommodation – and it is widely accepted that this needs to be changed so that housing which forms part of an agricultural holding tenancy should be subject to the repairing standard.  This is the minimum standard for private rented housing which sets out criteria that the property must meet before being let out.

The Scottish Government intends to introduce a requirement for all farmhouses to meet the Repairing Standard by 2027.

Bob McIntosh explains:

“The Repairing Standard does not currently apply to farmhouses that are part of an agricultural tenancy.

“In most tenancy agreements the landlord has the responsibility for replacing and renewing parts of the farmhouse which are worn out through fair wear and tear and the tenant is responsible for repairing and maintaining the farmhouse. However this may be affected by post lease agreements which transfer responsibilities to the tenant. The result is a variable picture in the standard of housing, with some farmhouses having been improved by the landlord, some by the tenant, some by both and some hardly at all.

“The introduction of new legislation will put the onus for any work onto the landlord but it is not clear if this will take precedence over existing post lease agreements which transfer responsibilities to the tenant.

“My advice is that everyone involved in the agricultural holdings sector need to give this issue some serious thought and come together to agree a sensible way forward that respects the legislation and which is fair to both the landlord and the tenant.”

Tenants and landlords with a farmhouse which is treated as fixed equipment are to adhere to the TFC’s Code of Practice on The Maintenance of the Condition of Tenanted Agricultural Holdings.

If you would like to find out more about this read Bob’s latest blog.

Scottish Land Commission’s response to SLE’s concerns about SLDT’s

David Johnstone
Scottish Land and Estates
Stuart House
Eskmills
Musselburgh EH21 7PB

 

Dear David

Buccleuch and Fixed Term Tenancies

Thank you for your letter to Andrew of 19th October. The Board have discussed the issues you raise at their meeting on 23rd and have asked me to respond to you.

I can be clear that the Land Commission fully supports the continued use of fixed term tenancy agreements, including Short Limited Duration Tenancies and recognises the landowner’s legal right to take land in hand when a tenancy expires.

The Commission does though expect decisions, including end of tenancy arrangements, to be made in a fair and responsible way in line with Codes of Practice and the Land Rights and Responsibilities Statement.

Andrew made two comments in response to a specific question about the particular situation of the Telfers and the Buccleuch sale. The first was to express our view that it would be reasonable to enable the Telfers to remain in occupation until retirement age. The second was to question whether the engagement with local communities has been as effective as might reasonably be expected, particularly given the scale of change and the clear expectations set out in the Guidance on Engaging Communities in Decisions About Land. These comments reflect our advice conveyed previously to Buccleuch.

These comments were given in relation to the particular case in question and were not intended, and should not be interpreted, as implying any wider policy position about SLDTs.

I should also confirm that we have not questioned or criticised land use change on Buccleuch or elsewhere. In fact we recognise that land use change is going to be inherent in making more productive use of land and in moving to a more diverse pattern of ownership. This dynamic process of change emphasises all the more the need for effective community engagement and a responsible approach to ensuring the legitimate interests of all relevant parties are taken into account.

Bob is currently developing a Code of Practice on lease agreement and management which will set out what can reasonably be expected of both parties in a responsible approach to handling tenancy agreements. I hope that SL&E will be able to support this as with other Tenant Farming Commissioner Codes of Practice.

Commissioners would be happy to meet with you to explore the issues raised and I will be in touch shortly to suggest a number of dates that might be suitable.

 

Yours sincerely

Hamish Trench
Chief Executive

Buccleuch Estates

Andrew Thin, Chair of the Scottish Land Commission welcomes the announcement by Buccleuch Estates of the sale of a portfolio of land on the Borders Estate and its stated commitment to reduce its overall footprint. “Scotland’s Land Rights and Responsibilities Statement, published by the Government last year, sets out a clear principle that ‘there should be a more diverse pattern of land ownership and tenure, with more opportunities for citizens to own, lease and have access to land’.

 “The Land Commission sees this including a more diverse pattern of private ownership, as well as greater community ownership. We therefore welcome the review and decision by Buccleuch Estates to offer a portfolio of land on the open market as well as engage with community groups that have an interest in acquiring land. We encourage other large scale land owners to consider a similar review in relation to both business need and the wider principles of the Land Rights and Responsibilities Statement”.

Tenant Farming Commissioner publishes updated guidance on rent reviews

Scotland’s Tenant Farming Commissioner (TFC), Bob McIntosh, has today published updated guidance on negotiating and conducting rent reviews.

This updated guidance builds on the 2015 guide published jointly with NFUS, STFA and SLE which is aimed at ‘91 Act Tenancies.  The new guide clarifies some aspects of the processes currently used to review rent in particular those relating to the provision of evidence and the use of the inflation linked sense check.

Bob McIntosh said

“There is clear agreement that long periods between rent reviews can have a detrimental impact on  farm business. Parties are encouraged to meet when a rent review is due, even where there is no variation sought in rent payable.”

“Rent determination is not an exact science. Arriving at the rent sum is a process that requires agreement based on discussion and analysis of evidence provided by both sides. The updated guidance offers information on making and responding to rent proposals, including the need to provide evidence in the case of a rent proposal and any counter proposal made.”

The guide emphasises the importance of avoiding surprises and encourages a preliminary conversation on the holding in advance of the rent proposal. It also sets out clear guidance on the use of comparable rents in recent case law and emphasises the need for well researched data to be presented to inform any new rent proposal.

The Guide is available here.

Less than two years left under amnesty for agricultural tenants

Tenant farmers across Scotland have less than two years left to consider if they have improvements to notify their landlord about, under the waygo amnesty.

The amnesty, introduced by the Land Reform Act (Scotland) 2016, started last June and runs until 2020. The amnesty

  • allows tenants to rectify any outstanding issues around past improvements they’ve carried out, which should qualify for waygo despite missing notices or consents
  • does not apply where the landlord objected to the original improvement notice or the improvement was carried out in a manner significantly different from the original notice
  • may be essential when it comes to other aspects of the Land Reform (Scotland) Act 2016, particularly rent reviews and relinquishment of 1991 Act tenancies.

A Code of Practice, produced by the Tenant Farming Commissioner, Bob McIntosh together with bodies such as NFU Scotland, Scottish Tenant Farmers Association and Scottish Land & Estates explains how the amnesty works and how landlords and tenants work together in a fair and transparent manner to agree a definitive list of tenants improvements which may be eligible for compensation at waygo

Mr McIntosh said, “With only two years remaining of the amnesty, I urge all tenants to decide as soon as they can whether to use it – or not. It can take a bit of time to pull together all the evidence tenants may need to submit through an amnesty notice, so it’s best not to leave it too late.

“The amnesty is a one-off opportunity for tenants to ensure that past improvements are eligible for compensation at waygo.”

The definition of an improvement is broad and includes any buildings including houses and cottages. It also includes improvements to

  • land such as ditches, drainage, removal of stones and other obstacles to cultivation
  • field boundaries
  • access improvements

The amnesty notice must set out the details of the improvement and why it is fair and equitable for compensation to be payable at termination of the tenancy, even though the correct procedure may not have been followed at the time the improvement was made.

To aid tenant farmers and landlords with the amnesty process CAAV and SAAVA have developed model forms of a Tenancy Agreement and an example of how to list and describe items to include as a schedule in the Agreement.  The model forms can be found on the Land Commission’s website www.landcommission.gov.scot

A series of video’s have also been created by Rural Matters to help promote the campaign.