Commentary on Sections Part 10 – Agricultural Holdings Chapter 2– Repairing Tenancies Section 92 – Repairing tenancies: creation
447.Section 92 amends the 2003 Act by inserting new sections 5C and 5D.
448.Section 5C of the 2003 Act sets out how a repairing tenancy is created. Subsection (1) states that a repairing tenancy is to be for a period of not less than 35 years; it cannot be a 1991 Act tenancy and the lease must expressly state that it is one to which section 5C applies; the land leased cannot be let to the tenant during the tenant’s continuance in any office, appointment or employment held under the landlord; and during the “repairing period” the tenant is required by the lease to improve the land so as to bring it into a state capable of being farmed in accordance with the rules of good husbandry after the expiry of the repairing period.
449.Subsection (2) defines the duration of the repairing period as at least 5 years from the start of the tenancy or such longer period as is initially agreed between the parties Alternatively, under subsection (3), the repairing period may be extended at any time before its expiry by agreement between the parties, or by the Land Court upon application of either party. The Land Court may extend the repairing period if it considers it appropriate in all the circumstances and by such a period as it considers necessary (subsection (4)). There are significant differences between the requirements on parties to a repairing tenancy during this period and after the expiry of the period.
450.Subsection (5) provides that the lease may contain provision for a break clause.
451.Subsection (6) states that for the purposes of section 5C and 5D, good husbandry is to be construed by reference to schedule 6 of the Agriculture (Scotland) Act 1948.
452.Section 5D contains provision exempting the tenant from liability for not farming the land in accordance with the rules of good husbandry during the repairing period.