Small landholdings in Scotland: legislation review

Conduct and Consideration of an Umbrella Body

Issues raised

149. Whilst some consultees had good relationships with other parties (landlords, agents or small landholders), others raised concerns about the conduct of other parties. Connected to this is a further concern about a lack of umbrella body covering small landholdings. Crofts have the Crofting Commission, agricultural holdings are now covered by the Tenant Farming Commissioner as part of the Scottish Land Commission, but small landholdings do not fall under either of these.

Legislation

150. The concern about other parties' conduct relates to all parts of small landholding legislation rather than any specific provision.

Discussion

151. Reasonable conduct of all parties (landlord, agent and small landholder) is crucial to maintaining a good relationship. It is clear that in some cases there are concerns on all sides, and resultant feelings of resentment and frustration. Part of the problem is lack of accessibility of the legislation, which is covered above. Addressing this issue may lead to additional clarity around aspects such as rights of access and rent review, which in turn may have a positive effect on conduct of parties. However, the legislation itself, whilst it can clarify roles and responsibilities does not govern the spirit in which individuals approach things or provide guidance for non-legislative processes. In this respect, non-statutory guidance or codes of practice might help in this regard. However, this would be a significant undertaking and it would need to be decided who would be best placed to produce such guidance or codes.

152. For agricultural holdings, the new Tenant Farming Commissioner within the Scottish Land Commission will produce codes of practice. In addition, he is specifically tasked with preparing a report on the operation of agents of landlords and tenant farmers to be submitted to Scottish Ministers by 31 March 2018. Issues covered within that report may be similar to those experienced by small landholders and landlords.

153. Small landholdings do not currently fall within the remit of either the Crofting Commission or the Tenant Farming Commissioner. Coverage by an umbrella body could provide the sector with an independent source of information and dispute resolution for some issues, although it should be noted that these bodies do not and should not replace the Scottish Land Court. As a small group (estimated 74 small landholdings in Scotland) it may not be appropriate to create a new body specifically for such a small group and it may be more appropriate for them to fall under the umbrella of an existing organisation. However, if this was required, further exploration of options would be needed, particularly as existing bodies have remits and scope tailored for their respective sectors.

154. The functions of the Tenant Farming Commissioner are governed by the 2016 Act, and do not encompass small landholdings at this time. The functions must be reviewed by Scottish Ministers within 3 years ( i.e. by March 2020).