Tue 24 Sep 2019

Tenant Farming Commissioner Update - Guidance on Transfer of Agricultural Tenancies

The latest guide to be published by Bob McIntosh, the Scottish Tenant Farming Commissioner (TFC), sets out guidance and best practice in respect of transferring agricultural tenancies to successors, either through assignation or succession. 

The guide covers the following ways in which an agricultural tenancy can be transferred:-

1. through a lifetime assignation.

2. through a bequest in a will.

3. by the tenant's executors in the absence of a bequest in the will or where no will was made. 

The guide also provides guidance on the different rules that apply depending on the type of tenancy, i.e. 1991 Act Tenancies, Short Limited Duration Tenancies, Limited Duration Tenancies or Modern Limited Duration Tenancies.

Other key factors to consider include who the tenancy is being assigned to, as it can only be transferred to an individual, and also the requirement for the landlord to consent to the transfer and the grounds on which the landlord may object to the transfer.  The guide provides a list of the potential transferees and useful diagrams to explain the procedures involved in the transfer.

As already discussed by my colleague Gail Watt in her article careful thought should be given to succession planning to ensure that there are no issues when a tenant wishes to transfer the tenancy to another person, which will usually be another family member.  The extensive legislation in relation to this can make following the correct procedures difficult and things can become even more complicated by the often sensitive and personal nature of the transfer.

The new guidance is therefore a welcome addition to the TFC's Codes of Practice and will prove to be a helpful resource for tenants and landlords alike.

With that being said, appropriate legal advice should always be sought by both the tenant and landlord from the outset, and our Agricultural and Rural Property Team can assist and offer clear and cost-efficient advice to ensure that everything goes according to plan.

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