Small landholdings in Scotland: legislation review

Assignation

Issues Raised

58. Some small landholders sought the ability to assign their tenancy on the open market at a price, which would enable them to raise sufficient capital upon retirement to buy a retirement property.

59. In addition, it was felt by some small landholders that there would be merit in expanding the categories of individuals who can be assigned a small landholding to provide more options to small landholders and to enable more new entrants to take on a small landholding, which would also assist small landholders who want to retire.

60. Guidance on in-life planning could help small landholders plan and improve the management of the end of their tenancy. In turn this could help reduce their concerns about homelessness at the end of a tenancy when they must move out of the farmhouse and perhaps purchase a house for the first time. Some consultees have indicated concerns that the statutory waygo compensation rarely meets their expectations or the costs of purchasing a house.

Legislation

61. The Small Landholders Act 1911 grants small landholders the statutory right to apply to the Scottish Land Court to assign their holding. ^[51] Under the 1911 Act they may apply in the circumstances where they are unable to work the holding due to illness, old age or infirmity. The persons to whom a small landholder may apply to assign their holding to certain categories of person. ^[52] The application to assign is to be intimated to the landlord and other interested parties, and a hearing before the Scottish Land Court will take place if necessary. If it appears to the Scottish Land Court that assignation would be reasonable and proper, it may grant permission on such terms and conditions as it sees fit. While the 1911 Act permits a landholder to assign only to certain persons, a landlord could in theory consent to assignation on different terms as a private agreement between the parties. ^[53]

62. There does not appear to be an equivalent statutory right of assignation as regards statutory small tenants under the Small Landholders (Scotland) Acts 1886 to 1931, however the 1911 Act does appear to allow for assignation if it is permitted by the lease. ^[54]

Discussion

63. As part of a wider consideration of the future of small landholdings, there may be merit in commissioning a review of the criteria for assignation of a small landholding to ensure it is fit for the 21 ^st Century. The scope of any such review could include a comparison of the situation of small landholdings with other forms of land tenure, where assignation has been updated e.g. agricultural tenancies and crofts.