INFORMATION NOTE 10
Succession In Agricultural Tenancy
This article has a broad look at the circumstances in which the tenant’s
agricultural tenancy can be inherited by a member of his or her family.
tenancies which are governed by the Agricultural Holdings (Scotland)
amended by the Agricultural Holdings (Scotland) Act 2003. These
commonly known as “traditional tenancies”.
interest in an
It deals with
Act 1991, as
tenancies are
The 1991 Act permits the tenant to bequeath his tenancy to any member of his family,
who, in any circumstances, would be entitled to succeed to his Estate if he died
“intestate” i.e. without a Will. In effect, this means a blood relative. He is also
permitted to bequeath the tenancy to his wife or to his son-in-law or daughter-in-law.
Although this seems a very comprehensive right it is vitally important to note that there
are two critical qualifications in practice.
The first is that the right can be contracted out of in the Lease so that it cannot be
bequeathed in the tenant’s Will.
The second is that the person to whom the Lease is bequeathed must be very
carefully chosen so as not to be vulnerable either to an objection by the Landlord,
or to a Notice to Quit. The grounds of objection and the grounds to establish a
Notice to Quit will be discussed in greater detail below.
Presuming that the tenancy can be bequeathed, the tenant is then able in his Will to grant
a bequest of the tenancy to a particular individual. On the death of the tenant, the person
to whom the Lease is left must give Notice to the Landlord within 21 days of the date of
death that he or she accepts the bequest.
If this time limit is missed on no account should the Notice be given late. To do so
means that the acceptance is invalid but it also means that the Lease is no longer
available for transfer by the late tenant’s executors and accordingly will come to an end.
If the time limit is missed and no Notice is served by the person to whom the tenancy was
bequeathed, it then becomes available for transfer as if the tenant died without a Will.
If the Lease prohibits the tenant from leaving his interest as tenant in his Will, or should
the tenant die without having made a Will, the Lease can still be transferred by the late
tenant’s executors in accordance with the provisions of the Succession (Scotland) Act
1964. The executors must confirm to the late tenant’s interest as tenant. Confirmation is
the process by which the executors are “confirmed” by the Sheriff Court to enter into
possession of the deceased’s Estate for the purposes of winding it up. Confirmation
must be obtained and the Lease transferred to the person inheriting the tenancy within
one year of the tenant’s death. On transfer, the acquirer has 21 days to give Notice to
the Landlord that he has acquired the tenant’s interest. Failure to comply with these time
limits means the end of the tenancy.
Whilst every attempt has been made to ensure the accuracy of this briefing note at the time of publication, it is not a substitute for
legal advice and STFA accepts no liability for any errors or any action taken as a result.
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stfa Information Note 10 – Succession in Agriculutural Tenancy
The Landlord has a right of objection both to a person inheriting a tenancy by virtue of a
specific bequest in a Will (a “legatee”) and to a person to whom the tenancy has been
transferred by the deceased’s executors (an “acquirer”). The Landlord’s objection must
be a reasonable ground of objection. Objections are likely to relate to the agricultural
knowledge and skill of the person inheriting the tenancy, his or her financial resources or
a matter relating to their personal character and repute.
In the case of a legatee, the Landlord must give his Notice of Objection within one
month of receiving the Notice from the legatee that he is inheriting the tenancy. The
legatee must then within one month of receiving that Notice make an application to the
Land Court to have the objection overruled.
In the case of an acquirer, once again the Landlord must object within one month of
receiving his Notice from the acquirer. However the landlord must follow that objection
with an application to the Land Court within one month failing which the objection falls.
Accordingly, the tenant when considering succession to the tenancy must carefully
consider the circumstances of each potential successor to make sure so far as possible
that they are not vulnerable to a Notice of Objection.
In addition to his rights of objection in respect of a person succeeding to an agricultural
tenancy as outlined above, a Landlord also has a right in certain circumstances to serve a
Notice to Quit on the succeeding tenant. If the Lease is still within its original
contractual term e.g. it was for a period of 15 years and the tenant has died within that 15
year period, the Notice to Quit must be served against the contractual expiry of the
Lease. If the Lease is continuing on an annual basis, the Notice to Quit must be served
against a date not less than one nor more than three years after the date on which the
tenant acquired the tenancy by succession.
A Landlord is entitled to serve a Notice to Quit to which the succeeding tenant has no
defence if he or she was not a near relative of the deceased tenant. A near relative is
defined by the 1991 Act as being a surviving spouse or child of the deceased tenant
including an adopted child.
Accordingly although the 1991 Act permits the tenant to leave his interest in the tenancy
in his Will to any person who might be entitled to succeed to his Estate should he die
without a Will, which as we have seen means any blood relative, this right is of no real
value because if the person to whom the tenancy has been bequeathed is not a near
relative then the Landlord will be able to serve a Notice to Quit to which the succeeding
tenant will have no defence.
Even if the succeeding tenant is a near relative, the Landlord can still serve a Notice to
Quit in certain defined circumstances. However, unlike the case of a near relative
Notice to Quit the succeeding tenant is entitled to contest the Notice.
Different rules apply depending on whether or not the Lease was granted before or after
the 1st of January 1984. In the case of Leases entered into before the 1st of January 1984
the Landlord can serve a Notice to Quit on the basis that the tenant has neither sufficient
training in agriculture nor sufficient experience in the farming of land to enable them to
farm the holding with reasonable efficiency; or that the holding is not a two man unit
and the Landlord intends
Whilst every attempt has been made to ensure the accuracy of this briefing note at the time of publication, it is not a substitute for
legal advice and STFA accepts no liability for any errors or any action taken as a result.
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stfa Information Note 10 – Succession in Agriculutural Tenancy
to use the holding for the purpose of amalgamating it within two years after the end of
the tenancy with other land in his possession and the Notice specifies the land with
which the holding is to be amalgamated; or the tenant is the occupier either as owner or
tenant of agricultural land elsewhere which is a two man unit and has been occupied by
him since before the death or the person from whom he acquired the tenancy and the
Notice specifies the agricultural land. A two man unit is an agricultural unit which in
the opinion of the Land Court is capable of providing full time employment for an
individual occupying it and at least one other man. Amalgamation means joining the
holding with other agricultural land in order to form an agricultural unit.
Where the Lease which has been inherited was entered into after the 1st of January 1984,
the Landlord can serve a Notice to Quit where the tenant does not have sufficient
financial resources to enable him to farm their holding with reasonable efficiency; or the
tenant has neither sufficient training in agriculture nor sufficient experience in the
farming of land to enable him to farm the holding with reasonable efficiency; or that the
holding is not a two man unit and that the Landlord intends to use the holding for
amalgamating within two years from the termination of the tenancy with other land and
the Notice specifies the land with which the holding is to be amalgamated; or the tenant
is the occupier of a two man unit elsewhere which has been occupied by him throughout
the period from the date of giving of the Notice and the Notice specifies the land.
In a post 1st January 1984 Lease and where the Notice to Quit is served on the grounds
of lack of sufficient training and experience, the Landlord is not able to rely on this
ground if the tenant has been engaged throughout the period from the date of death of
the late tenant in a course of relevant training in agriculture which he is expected to
complete satisfactorily within 4 years from the date of acquisition and has made
arrangements to secure that the holding will be farmed with reasonable efficiency until
he completes his course.
Also, in a post 1st January 1984 Lease, if the ground of the Notice to Quit is that the
tenant is the occupier of a two man unit elsewhere, a company controlled by the tenant
or a partnership in which he is a partner and which is the occupier of the other two man
unit will also allow the Landlord to serve a Notice to Quit.
In a pre 1st January 1984 Lease it is for the Landlord to prove his case in the Land Court
whereas it is for the tenant to prove that the grounds do not apply to him in a Notice to
Quit served on any of the grounds in relation to a Lease entered into after 1st January
1984 except that it is for the Landlord to prove that the holding is not a two man unit and
that he intends to amalgamate it with other land to form an agricultural unit.
In any event, the Land Court shall not consent to a Notice to Quit on any of these ground
if it appears to them that a fair and reasonable Landlord would not insist on possession
except where the Notice to Quit relates to the fact that the tenant does not have sufficient
financial resources to enable him to farm the holding with reasonable efficiency or
Whilst every attempt has been made to ensure the accuracy of this briefing note at the time of publication, it is not a substitute for
legal advice and STFA accepts no liability for any errors or any action taken as a result.
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stfa Information Note 10 – Succession in Agriculutural Tenancy
where the tenant has neither sufficient training in agriculture or sufficient experience in
the farming of land to enable him to farm the holding with reasonable efficiency.
Although this has been a fairly broad overview of the rules relating to succession to
agricultural tenancies it can be seen that the statutory provisions are detailed and
complex. When planning for succession, the tenant needs to give very careful thought to
identifying the person who is most likely to overcome either an objection or Notice to
Quit by the Landlord on succeeding to the tenancy and the circumstances of the
individual tenancy itself have to be carefully considered. If it is likely that the unit
might fail the two man unit test the tenant should also consider assigning the tenancy
during his lifetime. No two man unit test exists in respect of an Assignation.
Tenants are strongly recommended to seek detailed
legal advice on all issues arising in respect of
succession to the tenancy.
Hamish Lean
Partner (Accredited by the Law Society of Scotland as Specialist in Agricultural Law)
Blackadders128 Castle Street Forfar Angus 01307 461234
Whilst every attempt has been made to ensure the accuracy of this briefing note at the time of publication, it is not a substitute for
legal advice and STFA accepts no liability for any errors or any action taken as a result.