Small landholdings in Scotland: legislation review

Registration and Vacant Small Landholdings

Issues Raised

117. The lack of a register of small landholdings has contributed to uncertainty about tenancy type.

Registration

118. The 1911 Act introduced a duty on the then Board of Agriculture for Scotland to compile and maintain a register of small landholdings. ^[89] The register was never fully established and lapsed entirely after World War I. ^[90] It may be possible for a new administrative register to be put in place, however, many small landholders are uncertain about their tenancy type and therefore it may be problematic to do so. Some resolution may be found in the archives of the Scottish Land Court where records of proceedings to register new landholdings after 1912 may be housed. Registration already forms part of crofting policy. ^[91]

119. The non-registration of small landholdings was discussed in Parliament by the Rural Economy & Connectivity Committee recently. ^[92] During those discussions Derek Flynn, crofting lawyer, stated "…I see nothing wrong with smallholdings elsewhere having a clear code and having their land registered. After all, the new crofting register is a map of the whole of Scotland with crofts placed on it, so there is no reason why smallholdings should not be recorded on the same register." The Crofting Commission indicated they felt there was merit in bringing small landholding and crofting legislation together. See also the following section (para 130 ) which sets out the discussion on conversion to other forms of land tenure, highlights that many small landholders do not wish to convert to other forms of tenure. Therefore any proposals for the administrative registration of small landholdings need to be fully considered.

Vacant Holdings

120. Where a landholding becomes vacant due to renunciation or failure to identify a successor, then the landlord has a duty to advise Scottish Ministers in writing. ^[93] Adjacent small landholders or a new holder should be offered first refusal for the vacant holding and any deviation from this should only happen following consent from Scottish Ministers. In certain circumstances where a holding is vacant, Scottish Ministers have the power to re-let it, ensuring that appropriate payment is made to the landlord.

121. Where a landholding is let outwith the Act, if Scottish Ministers do not take steps to nullify the let within 6 months, then the new let ceases to be small landhold tenure under the 1911 Act. However, Scottish Ministers can reverse this where they act in good time. ^[94] A holding also falls out of small landholding tenure where the small landholder is able to purchase the holding or they accept a different type of lease. ^[95]

122. To renounce their tenancy effective from Whitsunday or Martinmas, a small landholder should give one year's written notice to the landlord. ^[96] In this instance, any payments of compensation to the small landholder should be offset by outstanding rent payments to the landlord. ^[97] In theory the landlord should also notify Scottish Ministers (in the case of renunciations, within 2 months ^[98] ). In practice this rarely happens and the Scottish Government has not sought to enforce this either directly or via the Scottish Land Court.

123. When a Statutory Small Tenancy ( SST) becomes vacant it stops being held under small landholding legislation. The land, typically, cannot be merged with an agricultural holding as defined under the Agricultural Holdings (Scotland) Act 1908, without approval by Scottish Ministers. This is in contrast with crofting legislation which allows for land of different tenure to be merged with and form part of a croft if the owner and crofter agree. Where the enlarged croft exceeds 30 hectares or the combined rent exceeds £100 consent is required from the Crofting Commission. ^[99]

Resumption

124. A landlord can apply to the Scottish Land Court to resume a holding, provided that the Court is satisfied that it is for a reasonable purpose, having relation to the good of the holding or the estate. ^[100] Resumption can take place on a case by case basis, for different purposes e.g. the protection of an ancient landmark or monument, for the construction of roads, piers, harbours , churches or schools. ^[101] However, trying to resume land for potential development where there is no prospective buyer might not be considered reasonable. ^[102] Where the Scottish Land Court approves a resumption request, they may also determine fair compensation covering the loss of the tenancy and profits is due to the small landholder. ^[103] However some small landholders may consider that the compensation being offered at resumption does not provide them with fair value for their improvements.

Discussion

125. During the course of this review, consultation responses indicated concerns about the non-enforcement of the vacant holding process, small landholdings being amalgamated to create larger holdings, small landholders holding more than one holding, or holdings taken back into the estate and land being removed completely from agricultural tenure, all without changes being recorded in any way. Some landlords also raised the issue of the standard of management of holdings and the costs involved in maintaining vacant holdings.

126. A number of suggestions were made in relation to this, including the introduction of a scheme which would encouraged the management of agricultural land on vacant holdings so that the land does not fall into disrepair.

127. A further option involved establishing a body with overarching responsibility for managing of smallholdings, in the way that the Crofting Commission does for crofts, ensuring that de-registration is properly authorised and vacant holdings properly managed.

128. Such as scheme would require further consideration, including consideration of the costs involved and the active co-operation of all parties.

129. Some consideration may also need to be given to legal provisions concerning the compensation paid out to small landholders for full or partial farm resumptions to ensure fair valuation.