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SALVESEN-RIDDELL LEGAL FIX MUST NOT CREATE MORE CASUALTIES

SALVESEN-RIDDELL LEGAL FIX MUST NOT CREATE MORE CASUALTIES

 

News Release

Scottish Tenant Farmers Association

www.stfascotland.org.uk

 

25th November 2013

SALVESEN-RIDDELL LEGAL FIX MUST NOT CREATE MORE CASUALTIES

 

 

The Salvesen Riddell debacle moved into a new phase last week following the Scottish Government’s announcement on how it intends to remedy S72 of the 2003 Act which sought to give additional protection to tenants in Limited Partnerships.  In April of this year, the UK Supreme Court, in ruling on the Salvesen Riddell case, decided that this provision contravened ECHR and was outside the competence of the Scottish Parliament.

 

The court’s judgement gave the Scottish Government 12 months to make good the defect and ensure the relevant section of the Act is compliant with ECHR.  The Government now proposes to change the legislation so that landlords who served notices to quit on limited partnership tenants in 2002-3 are now able to recover vacant possession of these farms.

 

Commenting on the government’s proposals STFA Chairman Christopher Nicholson said:  “This long running saga has haunted the tenanted sector for the last decade.  It has turned out that, in trying to prevent limited partnership tenants from losing their farms, the Scottish Government of the day created a piece of legislation that has achieved the opposite.  Tenants in limited partnership tenancies are now in a more vulnerable position than ever.

 

“This legal ‘fix’ will remedy the deficiency in the legislation but it can only be bad news for those affected, some of whom may now face the prospect of eviction from their farms despite having acted within the law and in good faith to protect their businesses and their livelihoods. There are half a dozen or so tenants embroiled in long-running expensive and stressful legal battles in the courts attempting to save their tenancies and some of those who have been granted full security of tenure who now face losing their farms.

 

“STFA believes that tenants who are at the moment in possession of secure tenancies must be allowed to continue farming, particularly if they have invested in their businesses, anticipating continuing security of tenure.   At least two of these tenants have sons who have returned home to carry on the farming businesses and these young farmers now face a bleak future.  If evictions follow the government’s actions these tenants must receive adequate compensation to allow them to rebuild their lives and farming careers.

 

“Similarly the tenants who have been undergoing legal battles to retain their farms must be compensated not only for the legal expenses they will have incurred but also for the time and stress tenants and their families have suffered, and for the loss of their expected livelihoods.  Furthermore, these tenants must be allowed sufficient time to rearrange their lives.  Many of them find it ironic that they now face losing their homes and businesses as a result of ECHR legislation designed to protect basic human rights.

 

“STFA will be lobbying government for a fair deal and a future for the victims of a previous government’s mistakes.  Politicians must not shirk their responsibilities and ensure there are no more casualties of this political mess.”

 

 

Notes for editors:

 

The order identifies 3 distinct groups of tenants and landlords for which solutions are required to bring them into an ECHR compliant position.

 

The groups are:

 

1. Those where the landlord served on the tenant a dissolution notice under section 72(3) for a date in the future. The tenant has the option, within 28 days, of the purported termination, to serve a notice claiming the tenancy in their own right under section 72(6). The date at which the tenant can serve the claim notice is still to arrive (group 1).

 

2. Those where the tenant is in receipt of a full 1991 tenancy as a result of the landlord either electing not to apply for Land Court for an order under section 72(8) or withdrawing from the Land Court process (group 2).

 

3. Those where the tenant’s claim to a full tenancy was challenged by the landlord under section 72(7) and the cases were sisted pending the outcome of the above Case (group 3).

 

The Order proposes that:

 

1.  For group 1 the order provides for the section 73 process. (Continuation of the tenancy for up to 3 years.

 

2.  For group 2 the order provides that the landlord has an option (though not an obligation) of converting these tenancies into the section 73 process. The opportunity for conversion is provided during a 12 month period which starts on the 28 Nov 2014. The delay for the start of the conversion period allows for a “cooling off” period during which the Scottish Government is offering to assist with mediation if required.

 

3.  For group 3 the order provides that if the case is removed from the Land Court, it is processed through section 73. If it remains at the Court the order provides more discretion to take account of the circumstances and for the Court to make a decision as to when it would be reasonable for landlords to recover vacant possession.

 

 

For further information contact:

Christopher Nicholson:  01988500423 or 07730940193

 

 

STFA calls for fair play at rent reviews

STFA calls for fair play at rent reviews

News Release

Scottish Tenant Farmers Association

19th November 2013

STFA calls for fair play and sense at rent reviews

With last minute rent negotiations taking place before the November term date, the Scottish Tenant Farmers Association is urging tenants to make sure that land agents seeking rent rises are following the guides to rent reviews published this year by the TFF and SAAVA.  The guides set out correct timelines, process and methodology for the conduct of rent reviews in Scotland.

In response to calls from tenants being faced with the usual eleventh hour pressure tactics from land agents, Chairman Christopher Nicholson commented; “RICS and SAAVA have agreed that their agents will follow the TFF guides to rent reviews, so it is disappointing to hear from tenants across Scotland who are facing last minute demands for unsustainable rent increases from agents who are reluctant to offer clear and transparent explanations as to how they arrived at their figures.

“We are also concerned that the ever increasing rent levels seen in Scotland are threatening the long term sustainability of the tenanted sector.  It is clear that tenanted holdings are suffering from lack of investment in infrastructure, and with the current rents being paid, tenants are left with insufficient funds to invest in the fabric of their farms.

After two years of poor harvests in Scotland, reduced sales of store lambs and calves as a result of the atrocious spring weather, and the prospect of severe cuts in CAP support payments, it is ironic that landlords continue to seek increased rents.  Yet again, this round of rent reviews provides more evidence of the need not only to regulate the conduct of landlords’ agents but also to change the law surrounding rent reviews so that farm rents reflect the economic fortunes of farming and allow long term sustainable businesses to prosper in the tenanted sector.

 

STFA WELCOMES START OF TENANCY REVIEW

STFA WELCOMES START OF TENANCY REVIEW

STFA WELCOMES START OF TENANCY REVIEW

 The Scottish Tenant Farmers Association welcomes today’s statement by the Cabinet Secretary announcing the members of the expert group which will assist him in his review of agricultural Holdings, the group’s remit and the timescale of the reviews.

The review – led by Rural Affairs Secretary Richard Lochhead – aims to determine what policy and legislative changes may be required to deliver a sustainable Scottish tenant farming sector that is dynamic, gets the best from the land and the people farming it and provides opportunities for new entrants.

The review groups members include: Hamish Lean, specialist in agricultural law;

Sir Crispin Agnew of Lochnaw QC; Barbara Brown, Principal Clerk of the Scottish Land Court;  Andrew Thin, Chairman of Scottish Natural Heritage, Board Member of Children’s Hearings Scotland and  a Non-Executive Director in the Scottish Government; Professor Jeff Maxwell OBE, former Chairman of the Tenant Farming Forum; and Iain Mackay, new entrant farmers from Mull.

STFA Chairman Christopher Nicholson commented; “Tenant farmers across Scotland will be pleased that there are signs that this long awaited review of tenancy legislation is about to start.  STFA has just concluded its autumn round of meetings listening to tenant members’ views and experiences.  Frustration and deep concern is apparent in every part of Scotland and there is an overwhelming conviction that reform is essential if Scotland is to get the best from the land and the people farming it.

“I am pleased that Richard Lochhead has chosen to lead and direct this review and we all that hope ministerial leadership will produce policy initiatives rather than the often anodyne and disappointing recommendations produced by previous review groups.  There is a dire need to reverse the shrinkage of tenanted land and breathe new life into a sector which is hamstrung by a lack of investment and opportunity and tenant farmers must be allowed to realise their potential.

“We will be encouraging all tenant farmers to take part in the review process and make the most of this chance to bring about the reforms that are so desperately needed to drive the sector forward.”

TENANT’S 10 YEAR RENT NIGHTMARE FINALLY ENDS

TENANT’S 10 YEAR RENT NIGHTMARE FINALLY ENDS

TENANT’S 10 YEAR RENT NIGHTMARE FINALLY ENDS 

Tenant farmer Andrew Stoddart has revealed that his 10 year battle to have his rent reduced in what must be Scotland’s longest running rent dispute was only concluded this July. The decade long rent wrangle with the Colstoun Trust over the 900 acre East Lothian farm involved two Land Court cases, two appeals to the Court of Session and years of legal debate before ending last November following an agreement with the landlords to reduce his rent brokered virtually on the steps of the Land Court. 

The rent review notice served by tenant Andrew Stoddart in November 2003 in sparked off a series of legal challenges from his landlord including an argument that his lease contractually prohibited the tenant having his rent reviewed under Section 13 of the 1991 Act. The right to have the rent reviewed in the Land Court was finally granted by a Court of Session ruling in 2010. However, just before the case was to be heard the landlord agreed to a 20% reduction in rent. This agreement was finally signed off in July 2013. 

Expressing his relief that his rent had finally been settled, tenant Andrew Stoddart said; “This rent dispute has dominated my life for the last ten years. I came into this farm as a new entrant paying a premium rent; when the 2003 Act was passed I seized the chance to get my rent reduced to a more realistic level because I was led to believe that economic conditions would play a more important role in rents. How wrong I was! 

“What I thought was going to be a simple process to revalue my rent has turned into a nightmare, seriously hampering my business and causing incredible stress to my family life. I wouldn’t have got through it all without the support of my wife, family and advisers and help from the STFA. 

“I am delighted this battle is now over but it shows the urgent need for reform to our tenanted system. I hope that the agricultural holdings review promised by Richard Lochhead can bring forward changes so no other tenant has to go through a similar experience”

CAB. SEC. MUST FIRE STARTING GUN ON TENANCY REVIEW

CAB. SEC. MUST FIRE STARTING GUN ON TENANCY REVIEW

 

CAB. SEC. MUST FIRE STARTING GUN ON TENANCY REVIEW

The Scottish Tenant Farmers Association has called on the Cabinet Secretary to end the uncertainly in the tenanted sector by setting out the remit, scope and timescale of the Agricultural Holdings Review as soon as possible.  

 STFA Chairman Christopher Nicholson said: “We have known for several months now that the government will be conducting a tenancy review but apart from the announcement that the absolute right to buy will be on the agenda we still have little idea of the scope of the review, how extensive it will be, how long it will take and who will be on the review group.  It is now time for the Cabinet Secretary to set out his stall and fire the starting gun so we can begin the business of discussing the future of the tenanted sector.

 “This review gives us a chance to take positive action to level the tenancy playing field, create opportunities for new entrants and reshape the structure of land tenure in Scotland.  The industry has spent 10 years agonising over tenancy law and endlessly discussing the same issues that dominated the debate in 2003.  We must now admit that our current tenancy legislation is not delivering and look for solutions.  The Cabinet Secretary obviously shares this view and we must take advantage of this once in a lifetime chance to overhaul and modernise the system. 

 “STFA is about to embark on a series on meetings countrywide to discuss tenancy reform with tenants and to hear their views and we will be encouraging them to feed their experiences in to the Scottish Government. We all know that reform is needed, but we must make sure that the compelling evidence to justify change is produced and tenants must play their part in this.”

 

2013 AUTUMN MEMBER

MEETINGS

 

To Discuss Agricultural Holdings Review

 

Tenants Right to Buy; Rent Reviews; Tenants  Improvements and Waygo; Succession and Assignation; Limited Partnership Tenancies and other issues

 

Come along and help shape the future!

 

Mon 28th October     –        Fairways Golf Club                        Inverness

Tues 29th October     –        Porterhouse Restaurant              Thainstone

Wed 30th October     –        Huntingtower Hotel                      Perth

Thur 31st October     –        Kingarth Hotel                                 Bute

Mon  4th  November –       Buccleuch Arms                              St Boswells

Tues  5th  November –       UrrValley                                         Castle Douglas

Wed 6th November   –       Kinloch Hotel Blackwaterfoot     Isle of Arran

 

All meetings start at 7.30pm    Non-members welcome and can join on the night

 

STFA FIELD DAY – ARNPRIOR FARM

STFA FIELD DAY – ARNPRIOR FARM

STFA FIELD DAY

ARBITRATION – NEW RENT GUIDE – THE FARM LEASE

Speakers – Martin Hall, Chairman SAAVA

 Hamish Lean, Stronachs

11.00AM – FRIDAY 18TH OCTOBER 2013

ARNPRIOR FARM, nr Kippen, Stirlingshire, FK8 3HA

By kind permission of the McEwen family.

 FARM WALK followed by lunch and discussion at the KIPPEN VILLAGE HALL

Non members welcome and can join on the day

CENSUS SHOWS STAGGERING FALL IN TENANTED LAND

CENSUS SHOWS STAGGERING FALL IN TENANTED LAND

STAGGERING FALL IN TENANTED LAND

The Scottish Government has today confirmed that the long term trend in falling livestock numbers is again matched by the continuing shrinkage in the tenanted sector.  Over the last year cattle and sheep numbers have dropped by 2.3% and 2.5%, the size of the pig herd has seen a 12.1% reduction and the area of rented land has contracted by a staggering 21,000ha representing a loss of 370 (5%) tenanted holdings.

Commenting on the situation STFA Chairman Christopher Nicholson said:  “It is ironic that whilst Scotland’s flagship food and drink export sector flourishes and demand for Scottish beef is at an all time high, agricultural production is dropping.  The fall in livestock numbers over the past year is not unexpected, following the appalling weather conditions faced by many of our farmers, but the underlying trend is worrying particularly in fragile areas where the marketing and processing infrastructure will be reaching a tipping point as throughput declines.  These figures demonstrate the need for continuing targeted direct support reinforced by coupled payments to help arrest the decline in livestock numbers so that we can satisfy the demand for our produce both home and abroad.

 “Government figures echo the reality of a tenanted sector in decline as landlords withdraw land.  STFA has been aware of an increasing number of tenancies being lost, but even the most pessimistic estimates come nowhere near the 21,000 ha in the census.  Unless positive action to taken to ensure tenanted land remains within the sector there will be fewer and fewer opportunities for new entrants and the remaining rungs will vanish from the farming ladder.

 “Despite claims to the contrary, there is spare agricultural capacity and opportunities in our hills and glens.   You don’t have to travel far to see increasing examples of under-utilisation of farmland and chronic lack of investment on farms rented out on short-term arrangements.  This is stifling initiative and preventing Scottish agriculture from realising its potential.  The ministerial review of agricultural holdings is a welcome chance to sort out the problems of the present, such as the ailing rent review system, and to look towards developing a fairer land tenure structure that will provide opportunities for secure tenure for the next generation of farmers to develop and grow their family businesses.”

SHORT FORM ARBITRATION AND PRACTITIONERS GUIDE TO RENT REVIEWS LAUNCHED BY SAAVA

SHORT FORM ARBITRATION AND PRACTITIONERS GUIDE TO RENT REVIEWS LAUNCHED BY SAAVA

SAAVA’S ARBITRATION INITIATIVE WELCOME BUT REFORM STILL URGENTLY NEEDED TO RENT SETTING FORMULA

 The Scottish Tenant Farmers Association have welcomed today’s launch of the Practitioners Guide to Rent Reviews and the announcement of a new Short Form Arbitration service as a step in the right direction for a cost effective and quick alternative to the Scottish Land Court.  STFA recognises the work SAAVA has put into the developing the Guide and the new arbitration system and expects them to be valuable tools in the rent review process.

Commenting on the introduction of SAAVA’s arbitration scheme STFA chairman Christopher Nicholson said: “The Practitioners Guide will provide a much needed rule book governing the conduct of rent reviews.  We hope that the Guide will help and encourage an accurate and consistent application of the rent review process throughout the country and remove some of the brinkmanship and pressure tactics that are all too evident at the moment. The concept of short form arbitration was mooted three years ago and I am pleased that it is now ready for use in the rent review process.  The success of the new system will, of course, hinge on the members of the panel of arbitrators and the confidence they will inspire.

“This should not, however, be seen as the end of rent review problems.   In detailing the rent review process the Practitioners Guide only too clearly emphasises the influence that open market lettings have on sitting tenants rents, inevitably causing rents to escalate with little prospect of future reductions in times of falling profitability.  Rent reviews will continue to be contentious, expensive and stressful as long as rents are driven by a scarce and over-heated open market which takes little account of what the farming business can actually stand.

 “The evidence is there to substantiate this and we will be pressing the Cabinet Secretary to revisit the way in which rents are set during the Agricultural Holdings Review.   By contrast, in England where rents are based on the productive capacity of the holding our sister organisation, the TFA, is urging tenants to serve rent notices on their landlords to reduce rents following the last few years of falling farm incomes.  This is not an option in Scotland with our market driven rent system.

 “The rent rack will continue unless decisive action is taken. Tenant farmers cannot continue to farm with the spectre of regular rent hikes over-shadowing and threatening their businesses.    The overwhelming view of tenant farmers is that this one-sided rent formula must change.  Rents must reflect the reality of farm economics, particularly as we approach a new CAP regime of considerably reduced support payments.”

CABINET SECRETARY WRITES LIMITED PARTNERSHIP TENANTS

CABINET SECRETARY WRITES LIMITED PARTNERSHIP TENANTS

 

SALVESEN RIDDELL RULING – DOES IT AFFECT YOU?

 The Scottish Tenant Farmers Association is urging all tenant farmers who are or have been involved in Limited Partnership tenancies to contact the Scottish Government as soon as possible following a letter issued today by the Cabinet Secretary Richard Lochhead to tenant farmers who may be affected by the recent Salvesen Riddell judgement by the UK Supreme Court.

 In his letter the Cabinet Secretary said:

 “I am writing to you as a result of the Supreme Court judgement in the Salvesen v Riddell case in April 2013. This is a complex legal case about farming tenancies and only a relatively small number of people may be affected by the ruling. 

 “Subject to certain limited exceptions, to be in the affected group you would need either to have served or received a dissolution notice for a Limited Partnership between 16 September 2002 and 30 June 2003.

 

“Unfortunately as we have no official record of who is affected I am taking the unusual step of writing to tenant farmers and landlords who may be involved in Limited Partnerships.

 “For those who are affected, the Scottish Government intends to resolve this situation by bringing forward legislation in Parliament to amend the Agricultural Holdings (Scotland) Act 2003 during the next parliamentary term; and we are now consulting with both landlords and farming tenants to ensure changes to the legislation are as fair as possible.

 “My officials have met with representative bodies including the Scottish Tenant Farmers Association, Scottish Land and Estates, Royal Institute of Chartered Surveyors, National Farmers Union for Scotland and the Scottish Agricultural Arbiters & Valuers Association.

 “However, it is also important that we make direct contact with landlords and tenants who may be affected by the Supreme Court Ruling.

 “If you think you may be affected, please let us know by filling in a brief online questionnaire available on our website at:

 http://www.scotland.gov.uk/limitedpartnerships

 or by calling the Limited Partnership team on 03002449847. You can also email the dedicated mail box at limitedpartnerships@scotland.gsi.gov.uk

 “This questionnaire is completely confidential, only takes a couple of minutes, and will help ensure the Scottish Government’s proposed legislative changes are as fair as possible. This process will help you understand your position better and allow us to engage directly with you as appropriate.

 “Once a legal remedy has been put in place it will be important for you to seek independent legal advice. Your solicitor, Citizen’s Advice Scotland and the organisations mentioned above should be able to help with this.

 “Our website will also provide up-to-date information about the action being taken by the Scottish Government.”

STFA welcomes Richard Lochhead’s letter to tenants who may be affected by the Salvesen Riddell decision.  STFA has been helping the Scottish Government trace tenants in Limited Partnerships and these people will shortly be receiving a letter from Mr Lochhead.  We will be contacting our members directly but it is important that everyone affected is made aware of what happening and how they may be affected and we would encourage them to respond as soon as possible to this call. 

 

STFA can be contacted on 01408 633275 or by email: stfa@tfascotland.org.uk

HILLS MUST NOT BECOME CASH COW FOR THE UNDESERVING

HILLS MUST NOT BECOME CASH COW FOR THE UNDESERVING

HILLS MUST NOT BECOME CASH COW FOR THE UNDESERVING

The Scottish Tenant Farmers Association is expressing its concerns to the Scottish Government that the inclusion of deer farmers in the new CAP support regime may encourage some sporting estates to fence in wild deer on hill ground to qualify as eligible for entitlement to Single Farm Payment.

 Commenting on the situation STFA chairman Christopher Nicholson said: “Deer farmers missed out on the last CAP programme and so it is only right and proper that they become eligible for support in the future.  However, it is crucial that deer farming is rigidly defined so that only boa fide deer farmers are able to draw down support payments and the floodgates are not opened for substantial areas of hill to be enclosed and stocked with wild deer masquerading as domestically run farmed animals. 

 “Future reductions in the CAP budget makes it all the more important that SFP is targeted at those who need support to maintain their businesses and that farming activity is robustly defined.  Actively farmed inbye land will be relatively easy to define, but steps must be taken to prevent Scotland’s vast hill areas becoming a cash cow for the undeserving”