The final report released yesterday by Agricultural Holdings Legislation Review Group (AHLRG) to the Holyrood Parliament represents a “once in a generation” chance to introduce wide-ranging changes to tenancy laws.
That was the view expressed by the group’s chairman, Rural Affairs Secretary Richard Lochhead.
The 49 recommendations in the review are, if implemented as a package, radical enough to “ensure a vibrant future for the sector,” he told his fellow MSPs.
There is little doubt that change is needed to reverse a trend that has seen the area of tenanted land decrease by 42% since 1982.
The AHLRG have had to tackle head on the highly contentious issue of Absolute Right To Buy.
Some, but far from all, secure tenants have called for the right to buy their farms while at the same time landlords have cited the fear of the measure as a reason not to let land.
The review group have come up with a solution which Mr Lochhead believes will prove acceptable to both sides.
ARTB is effectively ruled out except in the very extreme case of a tenancy where the landlord has completely failed to live up to his or her obligations.
In such a case the Scottish Land Court will examine the circumstances and if no remedy can be found the landlord could be forced to sell the farm to the tenant.
Otherwise ARTB is no longer on the agenda.
The review also comes up with a solution to the thorny problems of assignation of leases.
Mr Lochhead said he was well aware of the need to allow older tenants to retire and at the same time find value for their tenancy.
Tenant groups, particularly the Scottish Tenant Farmers Association (STFA), wanted secure tenants with 1991 Act leases to be able to transfer their leases for value but this was seen as too extreme.
Instead they will have to convert their secure tenancy into a 35-year modern Limited Duration Tenancy (LDT) before a deal is made.
Landowners’ body Scottish Land and Estates seemed to accept the principle but quibbled over the 35-year term which is seen as excessively long.
Succession rights are also widened beyond immediate family to include an initially bewildering range of relatives including descendants of spouses or civil partners.
Rent reviews are also tackled head on.
Rent increases have in most cases been settled by negotiation but the few cases that have reached the Land Court have been notoriously difficult.
The recommendation revealed for 1991 Act tenancies is that rents are determined only on the productive capacity of the holding and that factors such as scarcity and so-called “marriage value” of taking on an adjacent holding will not be considered.
This rental agreement mechanism will not however apply to LDTs where the starting rent will be agreed much more flexibly between the landlord and tenant.
This, the report believes, would encourage more land on to the let market.
There are also a raft of recommendations on creating suitable “letting vehicles”.
LDTs have existed in Scotland since 2003 but uptake has been patchy and shortcomings have become ever more apparent.
The review group proposes a new “modern LDT” with a minimum term of 10 years.
There will be an optional break at five years where the tenant is a new entrant.
There will also be provision for a tenant to take on an LDT on a “full repairing basis” but in that case the minimum term will be 35 years.
There is also a proposal to appoint a Tenant Farming Commissioner but there is no great clarity about what such a person will do although it seems he or she might be given powers to ensure codes of practice have been adhered to by landlords, tenants and perhaps most importantly their professional intermediaries.
It seems very clear that Mr Lochhead’s preference is for all of these recommendations to be taken forward as part of the new Land Reform Bill rather than as a separate Agricultural Holdings Act.
This may indeed b e the fastest route forward but review group members speaking after the announcement were adamant that whatever legislative vehicle was chosen the most important thing was for the recommendations to be adopted as a package and not piecemeal.