Agricultural Holdings (Scotland) Act 1949 (c. 75)
1949 c. 75 - continued

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Compensation for disturbance, and provisions as to notices to quit.

Respective liabilities for landlord and tenant for provision and maintenance of fixed equipment and for payments of insurance premiums.


        5.—(1)  Where a lease has been entered into for the letting of an agricultural holding, a record of the condition of the fixed equipment on the holding shall be made forthwith, and on being so made shall be deemed to form part of the lease; and the provisions of section seventeen of this Act shall apply to the making of such a record and to the cost thereof as they apply to a record made under that section.

    (2)  There shall be deemed to be incorporated in every lease for the letting of an agricultural holding—

    (a)  an undertaking by the landlord that, at the commencement of the tenancy or as soon as is reasonably possible thereafter, he will put the fixed equipment on the holding into a thorough state of repair, and will provide such buildings and other fixed equipment as will enable an occupier reasonably skilled in husbandry to maintain efficient production as respects both the kind of produce specified in the lease, or (failing such specification) in use to be produced on the holding, and the quality and quantity thereof, and will during the tenancy effect such replacement or renewal of the buildings or other fixed equipment as may be rendered necessary by natural decay or by fair wear and tear; and
    (b)  a provision that the liability of the tenant in relation to the maintenance of fixed equipment shall extend only to a liability to maintain the fixed equipment on the holding in, as good a state of repair (natural decay and fair wear and tear excepted) as it was in immediately after it was put in repair as aforesaid or, in the case of equipment provided, improved, replaced or renewed during the tenancy, as it was in immediately after it was so provided, improved, replaced or renewed.

    (3)  Nothing in the last foregoing subsection shall be deemed to prohibit any agreement made after the lease has been entered into between the landlord and the tenant whereby one of the parties undertakes to execute on behalf of the other party, and wholly at his own expense or wholly or partly at the expense of the other party, any work which the other party is required to execute in order to fulfil his obligations under the lease.

    (4)  Any provision in a lease requiring the tenant to pay the whole or any part of the premium due under a fire insurance policy over any fixed equipment on the holding shall be null and void.

    (5)  Any question arising as to the liability of a landlord or of a tenant under this section shall be determined by arbitration.

    (6)  This section shall not apply to any lease entered into before the first day of November, nineteen hundred and forty-eight.


Provisions supplementary to s. 4 and s. 5.

        6.—(1)  Where by virtue of section four of this Act the liability for the maintenance or repair of any item of fixed equipment is transferred from the tenant to the landlord, the landlord may within the prescribed period beginning with the date on which the transfer takes effect require that there shall be determined by arbitration, and paid by the tenant, the amount of any compensation which would have been payable under section fifty-seven of this Act or in accordance with subsection (3) of that section, in respect of any previous failure by the tenant to discharge the said liability, if the tenant had quitted the holding on the termination of his tenancy at the date on which the transfer takes effect.

    (2)  Where by virtue of section four of this Act the liability for the maintenance or repair of any item of fixed equipment is transferred from the landlord to the tenant, any claim by the tenant in respect of any previous failure by the landlord to discharge the said liability shall, if the tenant within the prescribed period beginning with the date on which the transfer takes effect so requires, be determined by arbitration, and any amount directed by the award to be paid by the landlord shall be paid by him to the tenant.

    (3)  Where it appears to the arbiter—

    (a)  on any reference under section four of this Act that, by reason of any provision which he is required by that section to include in his award, or

    (b)  on any reference under subsection (5) of section five of this Act that, by reason of any provision included in his award,

it is equitable that the rent of the holding should be varied, he may vary the rent accordingly.

   (4)  The award of an arbiter under section four or five of this Act shall have effect as if the terms and provisions specified and made therein were contained in an agreement in writing entered into by the landlord and the tenant and having effect as from the making of the award or, if the award so provides, from such later date as may be specified therein.


Variation of rent.

        7.—(1)  Subject to the provisions of this section the landlord or the tenant of an agricultural holding may, whether the tenancy was created before or after the commencement of this Act, by notice in writing served on his tenant or his landlord demand a reference to arbitration of the question what rent should be payable in respect of the holding as from the next ensuing day on which the tenancy could have been terminated by notice to quit given at the date of demanding the reference, and the matter shall be referred accordingly.

    (2)  On any reference under the last foregoing subsection the arbiter—

    (a)  shall not take into account any increase in the rental value of the holding which is due to improvements which have been executed thereon in so far as they were executed wholly or partly at the expense of the tenant (whether or not that expense has been or will be reimbursed by a grant out of moneys provided by Parliament) without any equivalent allowance or benefit made or given by the landlord in consideration of their execution, and have not been executed under an obligation imposed on the tenant by the terms of his lease, or to improvements which have been executed thereon by the landlord in so far as the landlord has received or will receive grants out of moneys provided by Parliament in respect of the execution thereof, or fix the rent at a higher amount than would have been properly payable if these improvements had not been so executed;

    (b)  shall not take into account the relief in respect of rates to occupiers of agricultural lands and heritages effected by the Local Government (Scotland) Act, 1929, nor the amounts recoverable by occupiers from owners under section forty-seven of that Act, nor any benefit that may accrue to the tenant from the operation of the Agricultural Marketing Act, 1931; and

    (c)  shall not fix the rent at a lower amount by reason of any dilapidation or deterioration of, or damage to, fixed equipment or land caused or permitted by the tenant.

Subject as aforesaid, the arbiter shall determine what rent should properly be payable in respect of the holding as from the day mentioned in the last foregoing subsection.

   (3)  A reference to arbitration under subsection (1) of this section shall not be demanded in such circumstances that any increase or reduction of rent made in consequence thereof would take effect as from a date earlier than the expiration of five years from the latest in time of the following dates, that is to say—

    (a)  the commencement of the tenancy, or

    (b)  the date as from which there took effect a previous increase or reduction of rent (whether made under this section or otherwise), or

    (c)  the date as from which there took effect a previous direction under this section that the rent should continue unchanged:

     Provided that there shall be disregarded for the purposes of this subsection—

    (i)  an increase or reduction of rent under subsection (3) of the last foregoing section;

    (ii)  an increase of rent under subsection (1) of the next following section or such an increase as is referred to in subsection (2) of that section;

    (iii)  a reduction of rent under section thirty-four of this Act, or under subsection (7) of section thirty-two of the Agriculture (Scotland) Act, 1948.

    (4)  The continuous adoption by the tenant of a standard of farming or a system of farming more beneficial to the holding than the standard or system required by the lease or in so far as no system of farming is so required, than the system of farming normally practiced on comparable holdings in the district, shall be deemed, for the purposes of subsection (2) of this section, to be an improvement executed at his expense.


Increases of rent in respect of certain improvements carried out by landlord.


        8.—(1)  Where the landlord of an agricultural holding has, whether before or after the commencement of this Act, carried out on the holding an improvement (whether or not one for the carrying out of which compensation is provided under the following provisions of this Act) being either an improvement carried out—

    (a) at the request of, or in agreement with, the tenant; or  

    (b) in pursuance of an undertaking given by the landlord under subsection (3) or paragraph (b) of subsection (6) of section three of the Agricultural Holdings (Scotland)
    Act, 1923, or under subsection (3) of section fifty-two of this Act: or

    (c) in compliance with a direction given by the Secretary of State under powers conferred on him by or under any enactment; or

    (d) in accordance with a provision in that behalf included in a hill farming land improvement scheme approved under the Hill Farming Act, 1946, being a provision so included at the instance or with the consent of the tenant;  

or works for the supply of water to the holding executed in pursuance of directions given by the Agricultural Executive Committee under Defence Regulations or of a scheme approved by the Agricultural Executive Committee, then, subject to the provisions of this section, the rent of the holding shall, if the landlord by notice in writing served on the tenant within six months from the completion of the improvement so requires, be increased as from the completion of the improvement or, where the improvement was completed before the first day of November, nineteen hundred and forty-eight, as from that day, by an amount equal to the increase in the rental value of the holding attributable to the carrying out of the improvement:

Provided that where any grant has been made to the landlord in respect of the improvement out of moneys provided by Parliament, the increase in rent provided for by the foregoing, provisions of this subsection shall be reduced proportionately.

    (2)  No increase of rent shall be made under the foregoing subsection if before the first day of November, nineteen hundred and forty-eight, the landlord and the tenant agreed on any increase in rent or other benefit to the landlord in respect of the improvement, or if before that day any sum became payable under subsection (3) of section three of the Agricultural Holdings (Scotland) Act, 1923, or section nine of the Agriculture (Miscellaneous Provisions) Act, 1943, or section nine of the Hill Farming Act, 1946, in respect of the cost of executing it.

    (3)  Where interest on the cost of works for the supply of water, or rent in respect of such an improvement as is mentioned in paragraph (d) of subsection (1) of this section, became payable under the provisions of section nine of the Agriculture (Miscellaneous Provisions) Act, 1943, or of subsection (3) of section nine of the Hill Farming Act, 1946, as the case may be before the first day of November, nineteen hundred and forty-eight, or became payable under the said provisions after that day by virtue of an agreement between the landlord and the tenant entered into before that day, it shall continue to be recoverable notwithstanding that the said provisions are by virtue of the Agriculture (Scotland) Act, 1948 no longer in force.

    (4)  Any question arising between the landlord and the tenant of the holding under this section shall be determined by arbitration.

    (5)  In this section the expression "Agricultural Executive Committee" means the Agricultural Executive Committee for any area to whom the Secretary of State has delegated any of his powers under Defence Regulations.


Variation of terms of tenancy as to permanent pasture.


        9.     Where under the lease of an agricultural holding, whether entered into before or after the commencement of this Act, provision is made for the maintenance of specified land, or a specified proportion of the holding, as permanent pasture, and it appears to the Secretary of State, either on the application of the landlord or the tenant or otherwise,—

    (a)  that it is expedient in order to secure the full and efficient farming of the holding that the amount of land required to be maintained as permanent pasture should be reduced, and
     (b)  where there has been an application under this section by the landlord or the tenant, that the landlord or the tenant has requested his tenant or his landlord to agree to the appropriate reduction but no agreement has been reached thereon,

the Secretary of State, after affording to the landlord and to the tenant an opportunity of making representations to the Secretary of State, whether in writing or on being heard by a person appointed by the Secretary of State, may—

    (i)  direct that the lease shall have effect subject to such modifications of the provisions thereof as to the land which is to be maintained as permanent pasture or is to be treated as arable land, and as to cropping, as appear to the Secretary of State expedient as aforesaid and are specified in the direction; and 

    (ii)  if he gives a direction reducing the area of land which under the lease is to be maintained as permanent pasture, order that the lease shall have effect as if it provided that on quitting the holding on the termination of the tenancy the tenant should leave as permanent pasture, or should leave as temporary pasture sown with a seeds mixture of such kind as may be specified in the order, such area of land (in addition to the land required by the lease, as modified by the direction, to be maintained as permanent pasture) as may be so specified, so however that the area required to be left as aforesaid shall not exceed the area by which the land required by the lease to be maintained as permanent pasture has been reduced by virtue of the direction.


Leases to continue in force notwithstanding variation of terms, etc.


        10.     The lease of an agricultural holding shall not be deemed to have been brought to an end, and accordingly neither the landlord nor the tenant of the holding shall be entitled to bring; proceedings to terminate the lease or, except with the consent of the other party, to treat it as at an end, by reason only that any new term has been added to the lease or that any of the terms of the lease (including the rent payable thereunder) have been varied or revised in pursuance of any of the foregoing provisions of this Act in that behalf.



Miscellaneous provisions affecting the relationship of landlord and tenant.

Certain agreements by incoming tenant to pay compensation due to outgoing tenant to be void.


        11.—(1)  Subject to the provisions of this section, any agreement made after the first day of November, nineteen hundred and forty-eight, by the incoming tenant of an agricultural holding with his landlord whereby the incoming tenant undertakes to pay to an outgoing tenant any compensation payable by the landlord under or in pursuance of this Act or the Agricultural Holdings (Scotland) Acts, 1923 to 1948, in respect of improvements or to refund to the landlord any compensation payable as aforesaid which has been paid by the landlord to an outgoing tenant, shall be null and void.

    (2)  This section shall not apply to an agreement in writing entered into by the incoming tenant of a holding with his landlord whereby the incoming tenant undertakes to pay to an outgoing tenant, up to such maximum amount as may be specified in the agreement, any compensation payable by the landlord under or in pursuance of this Act or the Agricultural Holdings (Scotland) Acts, 1923 to 1948, in respect of the whole or part of any improvement of the kind specified in Part III of the First Schedule to this Act, or to refund to the landlord, up to such maximum amount as aforesaid, any compensation so payable which has been paid by the landlord to an outgoing tenant.


Freedom of cropping and disposal of produce.

        12.—(1)  Subject to the provisions of this section, the tenant of an agricultural holding shall, notwithstanding any custom of the country or the provisions of any lease or of any agreement respecting the disposal of crops or the method of cropping of arable lands, have full right, without incurring any penalty, forfeiture or liability,—
    (a)  to dispose of the produce of the holding, other than manure produced thereon;
    (b)  to practise any system of cropping of the arable land on the holding:

    Provided that this subsection shall not have effect unless, before exercising his rights thereunder or as soon as may be after I exercising them, the tenant makes suitable and adequate provision, in the case of an exercise of the right to dispose of produce, to return to the holding the full equivalent manurial value to the holding of all crops sold off or removed from the holding in contravention of the custom, contract or agreement, and, in the case of an exercise of the right to practise any system of cropping, to protect the holding from injury or deterioration.

    (2)  If the tenant of an agricultural holding exercises his rights under the foregoing subsection in such a manner as to injure or deteriorate, or to be likely to injure or deteriorate, the holding, the landlord shall have the following remedies, but no other, that is to say,—

    (a)  should the case so require, he shall be entitled to obtain an interdict restraining the exercise of the tenant's rights under that subsection in that manner;
    (b)  in any case, on the tenant quitting the holding on the termination of the tenancy the landlord shall be entitled to recover damages for any injury to or deterioration of the holding attributable to the exercise by the tenant of his rights under that subsection.

    (3)  For the purposes of any proceedings for an interdict brought under the last foregoing subsection, the question whether a tenant is exercising, or has exercised, his rights under subsection (1) of this section in such a manner as to injure or deteriorate his holding, or to be likely to injure or deteriorate his holding, shall be determined by the Secretary of State after affording to the landlord and to the tenant an opportunity to make representations to the Secretary of State, whether in writing or on being heard by a person appointed by the Secretary of State; and a certificate of the Secretary of State as to his determination of any such question as aforesaid shall, for the purposes of any proceedings (including an arbitration) brought under this section, be conclusive proof of the facts stated in the certificate.

    (4)  Subsection (1) of this section shall not apply—

    (a)  in the case of a tenancy from year to year, as respects the year before the tenant quits the holding or any period after he has given or received notice to quit which results in his quitting the holding; or
    (b)  in any other case, as respects the year before the expiration of the lease.

    (5)  In this section the expression "arable land" does not include land in grass which, by the terms of a lease, is to be retained in the same condition throughout the tenancy.

In this subsection any reference to the terms of a lease shall, in a case where the Secretary of State has directed under section twelve of the Agriculture (Scotland) Act, 1948, or under section nine of this Act that the lease shall have effect subject to modifications, be construed as a reference to the terms of the lease as so modified.


Prohibition of removal of manure, etc., after notice to terminate the tenancy.

        13.     Where notice to terminate the tenancy of an agricultural holding is given, either by the tenant or by the landlord, the tenant shall not, subject to any agreement to the contrary, at any time after the date of the notice, sell or remove from the holding any manure or compost, or any hay or straw or roots grown in the last year of the tenancy, unless and until he has given the landlord or the incoming tenant a reasonable opportunity of agreeing to purchase on the termination of the tenancy at their fair market value, or at such other value as is provided by the lease, the said manure, compost, hay, straw or roots.

Tenant's right to remove fixtures and buildings.

        14.—(1)  Subject to the provisions of this section—
     (a)  any engine, machinery, fencing or other fixture affixed to an agricultural holding by the tenant thereof; and
     (b)  any building (other than one in respect of which the tenant is entitled to compensation under this Act or otherwise) erected by him on the holding;

not being a fixture affixed or, as the case may be, a building erected, in pursuance of some obligation in that behalf or instead of some fixture or building belonging to the landlord, as the case may be, shall be removable by the tenant at any time during the continuance of the tenancy or before the expiration of six months, or such longer period as may be agreed, from the termination of the tenancy and shall remain his property so long as he may remove it by virtue of this subsection.

    (2)  The right conferred by the foregoing subsection shall not be exercisable in relation to a fixture or building unless the tenant—

     (a)  has paid all rent owing by him and has performed or satisfied all his other obligations to the landlord in respect of the holding; and
     (b)  has, at least one month before both the exercise of the right and the termination of the tenancy, given to the landlord notice in writing of his intention to remove the fixture or building.

    (3)  If, before the expiration of the notice aforesaid, the landlord gives to the tenant a counter-notice in writing electing to purchase a fixture or building comprised in the notice, subsection (1) of this section shall cease to apply to that fixture or building, but the landlord shall be liable to pay to the tenant the fair value thereof to an incoming tenant of the holding.

    (4)  In the removal of a fixture or building by virtue of subsection (1) of this section, the tenant shall not do to any other building or other part of the holding any avoidable damage,
and immediately after the removal shall make good all damage so done that is occasioned by the removal.


Compensation for damage by game.

        15.—(1)  Subject to the provisions of this section, where the tenant of an agricultural holding has sustained damage to his crops from game, the right to kill and take which is vested neither in him nor in anyone claiming under him other than the landlord, and which the tenant has not permission in writing to kill, he shall be entitled to compensation from his landlord for the damage if it exceeds in amount the sum of one shilling per acre of the area over which it extends:

Provided that compensation shall not be recoverable under this section unless—

     (a)  notice in writing is given to the landlord as soon as may be after the damage was first observed by the tenant, and a reasonable opportunity is given to the landlord to inspect the damage—
       (i)   in the case of damage to a growing crop, before the crop is begun to be reaped, raised or consumed; and
       (ii)   in the case of damage to a crop reaped or raised, before the crop is begun to be removed from the land; and
     (b)  notice in writing of the claim, together with the particulars thereof, is given to the landlord within one month after the expiration of the calendar year, or such other period of twelve months as by agreement between the landlord and the tenant may be substituted therefor, in respect of which the claim is made.

    (2)  The amount of compensation payable under this section shall, in default of agreement made after the damage has been suffered, be determined by arbitration.

    (3)  Where the right to kill and take the game is vested in some person other than the landlord, the landlord shall be entitled to be indemnified by that other person against all claims for compensation under this section; and any question arising under the foregoing provisions of this subsection shall be determined by arbitration.

    (4)  In this section the expression "game" means deer, pheasants, partridges, grouse and black game.


Restriction of landlord's right to penal rent or liquidated damages.

        16.     Notwithstanding any provision in a lease of an agricultural holding making the tenant thereof liable to pay a higher rent or other liquidated damages in the event of a breach or non-fulfilment of any of the terms or conditions in the lease, the landlord shall not be entitled to recover any sum in consequence of any breach or non-fulfilment in excess of the damage actually suffered by him in consequence of the breach or non-fulfilment.
 
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