The Land Reform (Scotland) Act 2016 (“the Act”) was enacted just over a year ago on 22 April 2016. The Act is being brought into force in stages by secondary legislation. So far, five Commencement Orders have been made, implementing various parts of the Act and further Orders are expected this year and next.
It is perhaps fair to say that the most discussed provisions of the Act remain to be implemented, particularly the introduction of Modern Limited Duration Tenancies; removing the requirement to register a 1991 Act tenant’s right to buy; permitting the sale of a holding where a landlord is in breach of their obligations under a 1991 Act tenancy and the relinquishment and assignation of 1991 Act tenancies.
The main developments since the passing of the Act are as follows:-
- Land Rights and Responsibilities Statement
The Act requires the Scottish Ministers to prepare and publish a Land Rights and Responsibilities Statement (“the Statement”). The Statement is a vision and set of principles intended to both guide public policy and inform the practices of all those who own, manage and use land. The Scottish Government (“the SG”) published a draft Statement in December 2016 and the consultation period ended in March. The draft Statement is as follows:-
“The ownership, management and use of land and buildings in Scotland should contribute to the collective benefit of the people of Scotland. A fair, inclusive and productive system of land rights and responsibilities should deliver greater public benefits and promote economic, social and cultural rights.”
- The overall framework of land rights, responsibilities and associated public policies governing the ownership, management and use of land, should contribute to building a fairer society in Scotland and promote environmental sustainability, economic prosperity and social justice.
- There should be an increasingly diverse and widely dispersed pattern of land ownership and tenure, which properly reflects national and local aspirations and needs.
- More local communities should be given the opportunity to own buildings and land which contribute to their community's wellbeing and future development.
- The holders of land rights should recognise their responsibilities to meet high standards of land ownership, management and use, acting as the stewards of Scotland‘s land resource for future generations.
- Information on land should be publicly available, clear and detailed.
- There should be wide community engagement in decisions about land.
The final Statement must be reviewed every five years and will be enforced by a new Scottish Land Commission (“the Commission”), which was established on 1 April 2017. There are six Commissioners, including one Tenant Farming Commissioner (“the TFC”) who will prepare and promote codes of practice on a range of agricultural matters. Dr Bob McIntosh (a former Director of the Forestry Commission) has been appointed as the inaugural TFC and the Commission is currently hosting a series of ‘meet and greet’ events across the country.
- Register of Controlling Interests in Land
The SG has consulted on the establishment of a public register of controlling interests in land, which will be maintained by the Keeper of the Registers of Scotland, who administers the Land Register. The register of controlling interests is intended to show, not who owns or leases land, but rather who controls the person who owns or leases the land. The focus is understood to be on trusts and legal persons such as companies but the detail will be supplied by awaited secondary legislation.
On 31 December 2016, section 83 of the Act came into force, requiring local authorities to notify affected landowners of any proposed amendments to the Core Paths Plan.
Shootings and deer forests returned to the valuation roll on 28 June 2016. The Scottish Assessors Association (“the SAA”) is undertaking an information gathering exercise to ingather bag, cull, and rental information. The SAA is also preparing a practice note for the valuation of shootings and deer forests.
On 28 June 2016, sections 78-82 of the Act were brought into force, giving Scottish National Heritage (SNH) additional powers and duties in respect of the management of deer including the power to require owners and occupiers to produce Deer Management Plans within 1 year of service of a notice.
Engaging with Communities
On 1 November 2016, section 44 of the Act commenced, requiring the Scottish Ministers to issue guidance on engagement by landowners and managers when making decisions that impact on local communities. The SG has published draft guidance for consultation. The aim of the guidance is to support good working practices that can lead to mutually beneficial solutions to land-related problems and better local outcomes for economic, environmental, social or cultural issues.
The new community right to buy land to further sustainable development (currently an undefined term) has still to be commenced but the extent to which regard has been had to the guidance will be one consideration when ministers are presented with community applications to buy land.
The Agricultural Tenancy Sector
On 23 December 2016, the Act extended the class of people able to succeed to or be assigned either a 1991 Act tenancy or a Limited Duration Tenancy.
The process for notifying a tenant of certain improvements by a landlord has been amended and there are changes to the procedure for notices of diversification and irritancy notices on the grounds of non-payment of rent.
A three year amnesty for existing tenant’s improvements will come into force on 13th June 2017. The amnesty allows a tenant to send an amnesty notice to the landlord detailing an improvement which falls within the categories of improvements listed in the agricultural holdings legislation but will not be eligible for compensation at termination of the tenancy because the required statutory procedure was not followed. The SG’s Independent Adviser on Tenant Farming has released guidance on how to prepare for the amnesty.
The Act includes duties on the Scottish Ministers to review the legislation governing small landholdings and to lay a report before the Scottish Parliament. These duties were brought into force on 23 December 2016.
Private Residential Tenancies
The Private Housing (Tenancies) (Scotland) Act 2016 was passed on 17 March 2016 but is not yet fully in force. In particular, the provisions for a new type of tenancy, the Private Residential Tenancy (PRT), are not expected to be commenced until Autumn 2017. Once the provisions are brought into force, it will not be possible to create a new Short Assured Tenancy (SAT) but for the time-being SATs can be created and they will not convert unconditionally into PRTs.