Small landholdings in Scotland: legislation review

Security of Tenure

Issues Raised

38. Feedback from the majority of small landholders responding to our consultation, suggests that there is a need to retain security of tenure, regardless of any other future changes to the policy for small landholdings. Some small landholders were unclear about the rights of succession.

39. On the other hand, some landlords considered that small landholders have significant security of tenure and it was felt this created issues if the land becomes neglected and the landlord is unable to get it back.

40. Some individuals on Arran can trace back familial links to a tenancy or specific tract of land, some 400 years, with the average tenancy length being 111 years. The original tenancy (provided it met the criteria described above) would have been brought under the statutory regime for small landholdings in 1912. ^[35]

41. There was concern expressed by some small landholders that security of tenure should not be eroded as a result of a landlord's or small landholder's inability to provide the correct tenancy documentation or failure to keep good records. This issue reflects feelings of a lack of security in their position, but lack of documentation does not necessarily affect security of tenure.

Legislation

42. The Crofters Holdings (Scotland) Act 1886 sets out the requirements that must be met by a small landholder if they are to retain their security of tenure. ^[36] If the small landholder wishes to terminate the tenancy they require to give one year's notice to their landlord. ^[37] If the landlord requires to resume the small landholding, for a reasonable purpose having regard to the good of the holding or of the estate, they must apply to the Scottish Land Court for permission to do this. ^[38] The position as regards Statutory Small Tenancies ( SSTs) is similar. ^[39] The legislation provides for compensation for both landholders and statutory small tenants.

Discussion

43. Many small landholders and landlords may be unaware of that fact that a small landholding does not require tenancy documentation. Many small landholders and landlords will never have had any documentation. Those small landholdings created under section 7 of the 1911 Act (as amended by the 1919 and 1931 Acts) should have a written lease and this might be held in the Scottish Land Court records of when the holdings were created, or might be held in Government records.

44. Given the strong views expressed by small landholders about retaining their security of tenure, any future policy development or consideration of legislative change will need to consider the implications of this. This should of course, be balanced against the rights of the landlord.