Anything to do with a farm tenancy dispute tends to be emotive, ditto arguments about farm rents. That’s why emotionless lawyers get large fees to sort things out.
Or try to, with a recent Court of Session decision in the so-called Moonzie case in Fife and, more recently, the same court’s ruling on Salvesen (landlord) v Riddell about the tenancy of Peaston farm, Midlothian.
I’d like to say I understood thoroughly what both decisions mean, beyond the fact that both were in favour of the landlord. I’d like to say that, but in spite of an as-clear-as-possible explanation from solicitors Anderson Strathern. I wouldn’t bet on getting it right. Just as there is real time and legal time, so there is the language most of us use in real life and legal language; the intent of legal language is to avoid ambiguity and nail facts precisely.
Unfortunately, as I understand it, what the Court of Session decided in the Salvesen v Riddell case was that legal drafting of the Agricultural Holdings Act (Scotland) 2003 does not do that, is faulty, and that the Riddell family must quit the Peaston tenancy. That decision has now been appealed to the Supreme Court on the grounds that “the case raises a devolution issue under the Scotland Act 1998 in connection with whether section 72 of 2003 Act is European Court of Human Rights compliant”.
With possible implications like that, a lot of legal water is going to flow under bridges before any final decision is made on the Peaston case that started when a secure tenancy held by a family that had farmed there since 1902 changed, because of deaths and wills, to a limited partnership tenancy. A decision by the landlord not to renew that tenancy is the basis of the dispute.
The legal intricacies of both cases mean that I can’t follow my usual inclination to back a tenant and hang the consequences. I’ve never been in contempt of court yet and wouldn’t like to start now.
What I can say is that, particularly with the Moonzie case, a number of other tenancy disputes had been on hold until a decision was made by Lord Gill in the Court of Session that the Land Court, where the case began, had got it wrong.
The Court of Session effectively decided in the Moonzie case that subsidies received by the tenant must be taken into account when assessing a rent, as must rents for comparable farms, even if those tenancies were limited duration, not a secure tenancy as Moonzie is.
Deep waters, and getting deeper with the Peaston ruling. But the overall implication for all tenant farmers in Scotland must be that the pendulum that seemed to swing their way in the early days of devolved government and tenant-friendly legislation is swinging back towards landowners.
The advice about not letting heart rule head in rushing into a dispute becomes ever more relevant.
The Moonzie ruling has also been brought, wrongly, according to the Tenant Farmers’ Association, into rent negotiations in England this spring.
In a sharply-worded release George Dunn, chief executive of the association, accused some landlords’ agents of “sharp practice” in methods used to try and get substantial rent increases.
He accepted that many rent negotiations, held every three years, are decided amicably. They also give landlord and tenant the chance to discuss matters such as investment, improvements and possible succession. But, he went on, the association had evidence that some agents were now using aggressive tactics and sharp practice. These included:
z Proposing an eye-watering increase, then offering to discount if the tenant settles without seeking professional advice;
z Implying that Farm Business Tenancy – used in England, not Scotland – rents are direct comparables with traditional secure Agricultural Holdings Act tenancies;
z “Inappropriate and uninformed” use of a recent Scottish case (Moonzie) that has little, if any, relevance in England;
z Inflating the value of a farmhouse to the tenant and trying to include that, and agri-environment payments, in the rent.
Many tenant farmers, in Scotland as well as England, will be familiar with some of these tactics, or variations. Negotiating a rent has never been easy for a tenant, but being on reasonable, co-operative terms with the landlord – or, usually more importantly, his agent – does help as many successful tenant farmers have shown, and do show.
But as a Daily Mail headline might put it: “Why Oh Why Oh Why Has It Come To This For Tenant Farmers?”
And yet, another example of the human ability to hold contradictory beliefs, the quest goes on to give more new entrants a chance to start farming as tenants. The Forestry Commission, Crown Estates and Buccleuch Estates have all announced modest moves on that recently, and the SAC is to introduce a course for potential new entrants from this month.
I can think of at least three now-successful farmers who started with nothing except conviction and a willingness to work who could offer advice if asked. They could probably offer advice on rent negotiations too.