Landlord and Tenant Flashcards
What are the types of agricultural tenancy you might expect to come accross in Scotland?
1991 Act (traditional) tenancy, SLDT, MLDT, LDT, repairing tenancy, seasonal grazing or mowing lease
What are the four (or five) fundamental elements of a lease?
Landlord and tenant, term, subjects and consideration (or ish)
How long should the term be for a grazing or mowing lease?
A maximum of 364 days
Can a landowner retain BPS entitlements over land that is let to a grazing tenant?
Yes
What happens to a grazing lease if the tenant does not remove after 364 days?
It converts to an SLDT
How long must the break be between consecutive grazing leases to the same tenant on the same land?
One day
Can other activities such as breeding or storage take place on a grazing let?
No. The landlord must monitor the tenant’s activities and object to anything like this in a reasonable timeframe, otherwise there is risk that the tenancy will convert to an SLDT.
Would you let land for grazing horses under an agricultural lease?
No. Agricultural leases are for the purpose of producing food (or wool, skins or fur). An equine lease would not attract the protection of the Agricultural Holdings Acts.
What causes a grazing lease to become an SLDT?
- If the tenant stays in occupation
- If the landowner does not object
- If the tenant pays rent for the subsequent period
- If the landowner accepts the rent
When should a notice to quit be served on an agricultural tenancy?
Not less than one year and no more than two years before the date of termination.
Under what grounds might a Landlord be able to terminate a 1991 Act tenancy?
- If you owe more than 6 months of rent
- If the tenant is not farming the holding in line with the rules of good husbandry
- If the landlord wants to use the land for something other than farming, and planning has been granted
- If the tenant has become insolvent
- If the tenant has breached a clause of the tenancy which cannot be reasonably remedied.
Under what circumstances can an agricultural tenant withhold rent?
If the landlord is not complying with their repairing responsibilities.
Can a tenant use their land for non-agricultural purposes? Which Act governs this?
Yes, the Agricultural Holdings Act 2003 introduced this. The tenant must serve a ‘notice of diversification’ not less than 70 days in advance.
Can agricultural tenancies be partially sublet?
Yes, if the landlord agrees. This should be written into the lease.
Who can an agricultural tenancy be left to in a will?
- A spouse or civil partner
- A blood relative
- A daughter-in-law or son-in-law
If a traditional tenancy is converted to an LDT or MDLT, what is the minimum term?
25 years
What must a tenant to in order to have right to buy under a 1991 Act tenancy?
Register their interest before the land is put up for sale.
Under which agricultural tenancies does the tenant have right to buy?
Traditional (1991 Act) tenancy only.
What Act introduced the Short Limited Duration Tenancy (SLDT)?
Agricultural Holdings (Scotland) Act 2003
What types of compensation might be payable to the tenant at termination of a 1991 Act tenancy?
- Tenant’s improvements
- Disturbance
- Reorganisation of affairs
- Vacant possession
Under which tenancies is assignation permitted?
1991 Act tenancy, LDT and MLDT
Under which tenancies is subletting allowed?
1991 Act, LDT and MLDT - only if permitted by the landlord.
What duration can a SLDT be for?
Not more than 5 years
What happens if a tenant remains in occupation for more than 5 years under an SLDT?
It converts to an MLDT
Is diversification permitted under an SLDT?
No
Under which tenancy can the landlord contract out of repairing/replacing fixed equipment?
Modern Limited Duration Tenancy
What are the landlord and tenant responsibilities in relation to fixed equipment under agricultural tenancies?
Both must agree a schedule of fixed equipment specifying what will be provided by the landlord and the condition of this.
Landlord: to renew/replace the fixed equipment as may be necessary due to natural decay and fair wear and tear
Tenant: to maintain the fixed equipment in as good a state of repair per the condition in the schedule.
What compensation is payable by the landlord to the tenant at termination, under the limited duration tenancies?
Compensation for tenant’s improvements
How long was the tenant’s amnesty period intended to be and when did it eventually end?
Three years. It started in June 2017 was due to end in June 2020. Due to COVID-19 it was extended to December 2020.
What are the three main categories of tenant’s improvements?
Part I - Improvements For Which Consent Required
Part II - Improvements of Which Notice Required
Part III - Improvements for which no notice or consent required
What is a Part I tenant’s improvement? List some examples:
Improvements For Which Consent Required:
- Laying down permanent pasture
- Irrigation works
- Planting orchards or fruit bushes
- Making embankments or sluices against floods
- Making of gardens
What is a Part II tenant’s improvement? List some examples:
Improvements of Which Notice Required:
- Erection or alteration of buildings
- Land Drainage
- Construction of silos
- Works to dwellings
- Provision of means of storing silage
- Reclaiming of waste land
- Making or removal of permanent fences, including hedges and stone dykes
What is a Part III tenant’s improvement? List some examples:
Improvements for which no notice or consent required:
- Chalking of land
- Clay burning
- Claying of land
- Liming of land
- Marling of land
- Eradication of bracken, whins or broom
- Removal of tree roots, boulders, stones etc.
- Application of soil improvers, conditioners, digestates, manure etc.
Which types of tenant’s improvements were eligible under the Amnesty for Tenant’s Improvements?
Part II and Part III improvements. Also Part I’s if the necessary consent process had been followed.
What might landlord’s be able to claim against the tenant for at waygo?
- Dilapidations
2. Under-application of lime or fertaliser
What must the tenant serve in advance of termination of the tenancy in order to claim for compensation for improvements? How far in advance?
They must serve a notice on the landlord of any claim for compensation, at least 2 months before the termination of the tenancy
Name the Scottish tenancy term dates:
Candlemas: 28 February
Whitsunday: 28 May
Lammas: 28 August
Martinmas: 28 November
Give some examples of fixed equipment in an agricultural tenancy
- Farm buildings
- Residential dwellings
- Fences, hedges, dykes, gates
- Ditches, drains, culverts, ponds, flood banks
- Fanks, folds, dippers, pens
- Farm access roads, bridges and fords
- Water and sewage systems
- Shelter belts
What legislation introduced the Limited Duration Tenancy (LDT)?
Agricultural Holdings (Scotland) Act 2003
What act introduced the Modern Limited Duration Tenancy?
Land Reform (Scotland) Act 2016
What was the purpose of introducing the MLDT?
- to allow both parties greater flexibility to negotiate aspects of the lease
- the new entrants to farming break clause
- the repairing tenancy
How long must there be between agricultural rent reviews?
3 years
What determines the minimum standard private rented housing must meet before it is let out?
The repairing standard
What duration is a LDT or MLDT for?
A minimum of ten years
Can an LDT be assigned?
Yes - to anyone (providing statutory notice procedure is followed). Landlord has the right to withhold consent on certain grounds, fewer grounds for withholding conset to a ‘near-relative’.
When did the MLDT come into effect? Which act introduced it?
November 2017 by virtue of the Land Reform (Scotland) Act 2016.
What are the key new features of an MLDT?
- Introduction of a new entrant’s break clause
- Landlord can contract out or the obligation to renew/replace fixed equipment
- Termination: if the landlord does not correctly terminate the tenancy, it will continue for a period of 7 years on a continuous cycle
What introduced the repairing tenancy?
Land Reform (Scotland) Act 2016
What is the minimum term of a repairing tenancy?
35 years
How long is the repairing period in a repairing tenancy?
5 years, or longer if agreed between the parties
When would a break clause (if there was one) be valid in a repairing tenancy?
During or at the expiry of the repairing period
If landlord and tenant cannot come to an amnesty agreement, what are the next steps?
Alternative Dispute Resolution (ADR) such as: - Mediation - Expert determination - Arbitration Followed by refferal to the Land Court
What are the steps of an amnesty discussion?
- Tenant initiates discussion
- Landlord and tenant jointly responsible for preparing agreed list of eligible improvements
- both parties should assemble and share any relevant documentation relating to past improvements
- A record of the meeting should be produced, recording any agreements reached and disagreements
- If the parties can agree, an ‘amnesty agreement’ should be entered, recording a schedule of the fixed equipment which are agreed to be improvements and are eligible for compensation at the waygo
What are the steps of an amnesty agreement if the landlord and tenant cannot come to agreement organically?
- Tenant issues amnesty notice stating the improvements they wish to claim for and why they believe these are eligible
- Landlord has 2 months to issue a notice of objection to any of the improvements
- The Tenant then has 2 months to apply to the Land Court for approval of the relevant improvement
On what grounds may a landlord object to a tenant’s improvement?
- If the improvement is not fair and equitable
- If the landlord carried out the improvement in whole or part
- If the landlord gave benefit to the tenant in return for the improvement
What should a rent review notice for an agricultural tenancy include?
- the names of both parties
- the address of the holding
- the current rent payable
- the rent the person serving notice proposes
- the date at which the parties must reach agreement (‘rent payable date’)
- accompanying information explaining the basis of calculation for the rent proposed
When must a rent review notice be served?
Not less than one year and no more than two years prior to the ‘rent agreement date’
When must a rent review be referred to the Land Court if no agreement can be made between the parties?
Prior to the ‘rent agreement date’
In an agricultural rent review, when will the new rental value take effect?
From the ‘rent agreement date’
What factors should be regarded in an agricultural rent review?
- Open market rent i.e. other holdings rental values
- The current economic conditions in the relevant sector
- Any increase in rental value resulting from use for non-agricultural purpose
- Improvements carried out by the landlord
Give some examples of what should not be regarded in agricultural rent reviews
- changes to rent values due to scarcity of lets
- Improvements carried out at the tenant’s expense
- effect on the rent due to the face the tenant is in occupation
- High farming
- Reductions due to dilapidations, using the land for non-agri purposes or conservation activities
Who can initiate an agricultural rent review?
A landlord or a tenant
When must the rent agreement date take place?
In a 1991 act tenancy: on the anniversary of the termination date of the original lease.
In a fixed duration tenancy: on any date unless the lease states otherwise.
What are the 7 steps of an agricultural rent review?
- The party initiating the review serves a rent review notice
- The receiving party should respond ASAP, either approving the figure or objecting
- The parties should meet on farm no less than 6 months before the review date
- The party initiating the review should write to the other party evidencing their proposal
- The receiving party should confirm agreement or submit a counter-proposal
- Alternative dispute resolution should be introduced if parties cannot reach agreement
- If the dispute remains unresolved, the proposing party should apply to the land court to have the rent formally determined
What is the purpose of serving a formal agricultural rent review notice?
It reserves the position of the party to make an application to the Land Court if agreement cannot be reached. 1 year back stop.
What key elements were introduced by the Land Reform (Scotland) Act 2016?
- MLDT’s
- Tenant’s amnesty
- Changes to rent review process
- Restrictions on Landlords objections to assignation
- Notice of Landlord’s improvements
When did Private Residential Tenancies (PRT’s) come into force?
December 2017
What might you use to draft a PRT agreement?
The Scottish Government’s model tenancy
What key changes did the PRT introduce?
- no fixed terms
- restriction on rent increases
- longer notice period (84 days)
- simpler notice procedures
- model tenancy agreements
What is a tenant’s notice period to the landlord in a PRT? What is a landlord’s notice period to the tenant?
28 days and 84 days (if over 6 months occupation, otherwise 28 days), respectively. Increased to 6 months during COVID-19 pandemic, active until March 2022.
Give some examples of PRT exempt tenancies
- Shops
- Licensed premesis
- Agricultural tenancies
- Student accommodation
- Holiday lets
- Military or police housing
- Shared ownership
- Social housing
- Tenancies under previous legislation
What are the grounds for eviction under a PRT?
- If the landlord intends to sell
- If the landlord intends to refurbish (and the tenant can’t live in the property due to the nature of the works)
- Landlord intends to live in the property
- Immediate family member intends to live in the property
- Landlord intends to use the property for non-residential purposes
- The property is requred for religious purposes
- The tenant is no longer an employee
- The tenant is not occupying the property as their principal home
- Breach of tenancy agreement
- Rent arrears (over 3 consecutive months)
Explain the difference between mandatory and discretionary grounds of eviction in a PRT
If mandatory grounds are proven, the tribunal must grant an order for eviction. If discretionary grounds are proven, the tribunal need to decide whether eviction is reasonable on a case-by-case basis. Following the COVID-19 pandemic, all grounds became discretionary until March 2022.
Which act introduced Private Residential Tenancies?
Private Housing (Tenancies) (Scotland) Act 2016
What is the name of the tribunal for Scottish property matters?
First-tier Tribunal for Scotland (Housing & Property Chamber)
Which act introduced Assured and Short Assured tenancies?
The Housing (Scotland) Act 1988
What length is a Short Assured Tenancy?
Fixed length, no less than 6 months
What special notice is served to a tenant to enter a Short Assured Tenancy?
An AT5 form.
How long does the landlord have to register a tenant’s deposit in a tenancy deposit scheme?
30 days
What happens to the tenancy if an SAT tenant passes away?
The tenancy can be passed to a husband wife or civil partner if they were living in the property
What happens if an AT5 is not served prior to a Short Assured Tenancy?
It becomes an assured tenancy
What happens to an SAT if neither party serves notice at the end of the tenancy?
It renews again for the same period, unless otherwise stated in the tenancy agreement
Can an SAT tenant leave before the end of the tenancy?
If there are provisions for this in the tenancy, or by agreement with the landlord
On what grounds can a landlord evict an assured tenant?
- Landlord wants the property to be their own home
- Mortgage default
- Off-season holiday let
- Vacation Student let
- Minister or lay missionary property
- Re-development
- Tenancy inherited under non-eligible grounds
- Three months rent arrears
- Breach of tenancy condition
- Anti-social behaviour
- No longer an employee
What does a landlord require to evict an assured tenant?
An order from the First-Tier Property Tribunal
In what circumstances could you have a regulated tenancy?
- If it began before 1989
- You have an agreement with a landlord on the term and rent to be paid
What must landlord’s do to evict regulated tenants?
- Serve a notice to quit
- Get an order from the First Tier Tribunal for the tenant’s eviction
What grounds can regulated tenants be evicted on?
Similar to PRT’s - difficult. No provision of eviction for sale of property, just for family moving in or tenant comitting material breaches and breaking laws etc.
What are examples of situations where common law tenancies may be likely?
- Student accommodation
- Living with a landlord
- Homeless in temporary accommodation
How can a landlord recover possession on a short assured tenancy?
Serve a two month notice under section 33 of the Housing (Scotland) Act 1988
What has changed in relation to private tenancies during the recent pandemic
The Coronavirus (Scotland) Act 2020 introduced additional protection for private tenants, including:
- Mandatory grounds for eviction became discretionary
- notice periods were extended to six months
- acceptable period of rent arrears extended to six months
