Assignation
Section 103 – Assignation of 1991 Act tenancies
591.Section 103 makes provision about the persons to whom a 1991 Act tenancy may be assigned.
592.Section 10A of the 1991 Act makes provision for the assignation of 1991 Act tenancies. Under the current legislation, the tenant can assign the tenancy to any of the persons who would be entitled to succeed to the tenant’s estate on intestacy by virtue of the Succession (Scotland) Act 1964.
593.Section 103 amends section 10A of the 1991 Act by inserting a new subsection (1A), which extends the class of person that a tenancy can be assigned to. Subsection (3) of section 103 sets out the people to whom, under the new subsection (1A), the tenant can assign the tenancy. Those that are already entitled to be assigned the tenancy under the Succession Act as mentioned above still remain so, including cousins of the tenant. However, this Act extends the right to a number of additional people as set out in subsection (1A)(b) to (n).
594.Currently, under section 10A(3), the landlord can withhold consent to the proposed assignee, if there are reasonable grounds for doing so. Section 103(5) and (6) of the Act amends section 10A of the 1991 Act so that, while the landlord can still withhold consent for a person who is not a near relative if there are reasonable grounds, the Act limits the grounds for objecting to a near relative. The inserted subsection (3A) removes reasonable grounds as a valid reason for objection so that the only grounds on which a landlord can withhold consent to assignation to a near relative are the following: that the person is not of good character, that the person does not have sufficient resources to enable the person to farm the holding efficiently, or that the person does not have adequate training or expertise in agriculture to enable the person to farm with reasonable efficiency.
595.The inserted subsection (3B) provides that this last ground of objection does not apply where the person is engaged or intending to enrol, within a specified period, in a course of relevant agricultural training that must be completed within four years of the date notice was given of the intention to assign. That person is also required to have made arrangements for the holding to be farmed efficiently while the person completes the course.
596.Subsection (6) inserts a new subsection (6) into section 10A of the 1991 Act to define “near relative” for the purposes of new subsections (3A) and (3B).
Section 104 – Assignation of limited duration tenancies
597.Subsection (2) amends section 7 of the 2003 Act by inserting new subsections (3A), (3B) and (5A).
598.Currently, under section 7(3), the landlord can withhold consent to the proposed assignee of an LDT if there are reasonable grounds for doing so.
599.Section 104(2) amends section 7 of the 2003 Act so that, while the landlord can still withhold consent for a person who is not a near relative if there are reasonable grounds, the Act limits the grounds for objecting to a near relative. The inserted subsection (3A) removes reasonable grounds as a valid reason for objection so that the only grounds on which a landlord can withhold consent to assignation to a near relative are the following: that the person is not of good character, that the person does not have sufficient resources to enable the person to farm the holding efficiently, or that the person does not have adequate training or expertise in agriculture to enable the person to farm with reasonable efficiency.
600.The inserted subsection (3B) provides that this last ground of objection does not apply where the person is engaged or intending to enrol, within a specified period, in a course of relevant agricultural training that must be completed within four years of the date notice was given of the intention to assign. The person is also required to have made arrangements for the holding to be farmed efficiently while the person completes the course.
601.Section 104(2)(c) inserts a new subsection (5A) into section 7 which defines “near relative” for the purposes of new subsections (3A) and (3B).
Section 105 – Assignation of modern limited duration tenancies
602.Section 105 amends the 2003 Act by making provision for the assignation of MLDTs, inserting a new section 7B into the 2003 Act.
603.Subsection (1) of the inserted section 7B provides for an assignation of an MLDT tenancy if the landlord provides consent after receiving written notice from the tenant.
604.Subsection (2) provides that the tenant must provide the landlord with written notice of intention to assign an MLDT. The notice must contain details of the proposed assignee, the terms of the assignation and the date from which it is to take effect.
605.Subsections (3) and (4) provide that if the proposed assignee is not a near relative, then the landlord can withhold consent on any reasonable grounds. If the proposed assignee is a near relative then the landlord’s grounds for objection are limited to three circumstances. These are the following: that the person is not of good character, that the person does not have sufficient resources to enable the person to farm the holding efficiently, and that the person does not have adequate training or expertise in agriculture to enable the person to farm with reasonable efficiency.
606.Subsection (5) provides that this last ground of objection does not apply where the person is engaged or intending to enrol, within a specified period, in a course of relevant agricultural training that must be completed within four years. The person is also required to have made arrangements for the holding to be farmed efficiently while the person completes the course.
607.Subsection (6) requires the landlord to give written notice to the tenant indicating withholding of consent within 30 days of receiving the tenant’s notice of intention to assign. If no such notice is provided by the landlord, it is taken that consent has been given.
608.Subsection (7) defines “good husbandry” by reference to schedule 6 of the Agriculture (Scotland) Act 1948.
609.Subsection (8) defines “near relative” of the tenant for the purposes of subsection (4).
Section 106 – Assignation of repairing tenancies
610.Section 106 makes provision for the assignation of repairing tenancies by inserting a new section 7D into the 2003 Act.
611.Subsections (1) to (6) of new section 7D make provision about assignation of a repairing tenancy during the repairing period, as defined in new subsection 5C of the 2003 Act. Under subsection (1) the tenant may assign the tenancy if the landlord provides consent after receiving notice from the tenant in accordance with subsection (2).
612.Subsection (2) provides that the tenant must provide the landlord with written notice of intention to assign a repairing tenancy. The notice must contain details of the proposed assignee, the terms of the proposed assignation and the date from which it is to take effect.
613.Subsection (3) provides that the landlord can withhold consent to the proposed assignee during the repairing period if there are reasonable grounds for doing so. In particular, the landlord may withhold consent if they are not satisfied that the proposed assignee would have the ability to pay the rent. They can also withhold consent if they are not satisfied that the proposed assignee would have the financial resources or skills or experience necessary to bring the land up to a standard where it could be farmed in accordance with the rules of good husbandry after the repairing period.
614.Subsection (4) provides that this last ground of objection (on skills or experience required) does not apply where the proposed assignee is engaged or intending to enrol, within a specified period, in a course of relevant agricultural training that must be completed within four years. The proposed assignee must also have made arrangements for the holding to be farmed efficiently while the course is completed.
615.Subsection (5) requires the landlord to give written notice to the tenant indicating withholding of consent within 30 days of receiving the tenant’s notice of intention to assign. If no such notice is provided by the landlord, it is taken that consent has been given.
616.Subsection (6) defines “good husbandry” by reference to schedule 6 of the Agriculture (Scotland) Act 1948.
617.At the end of the repairing period, subsection (7) provides that the provisions contained in new section 7B of the 2003 Act, pertaining to the assignation of an MLDT, apply to the assignation of a repairing tenancy.
