The Courier & Advertiser (Angus and Dundee)
Amnesty fears due to Covid-19
The tenant’s improvement amnesty expires on June 13 this year. There are, at the very least, several hundred tenants across Scotland who have begun the amnesty procedure but not completed it, and many more who haven’t yet started.
Many tenants have followed the Tenant Farming Commissioner’s Code of Practice, which recommends making an approach to their landlords first in the hope that the items that should qualify under the amnesty can be agreed and a formal agreement entered into.
However, reaching agreement can take some time to achieve. In addition, the code calls for meetings on the farm in order to view improvements and to discuss negotiate and agree matters.
The coronavirus crisis and the movement restrictions for the protection of public health which have been introduced have made the amnesty process much more difficult. It is now impossible to meet on the farm and not everyone is able to connect remotely with video conferencing.
As a result, there is a very real risk in many cases that it will be impossible to reach agreement by the expiry of the deadline for doing so. There appear to be no moves by government to extend the deadline in the current crisis.
The Tenant Farming Commissioner (TFC), Bob Mcintosh, has issued guidance, asking that all landlords, tenants and their agents take a reasonable approach to concluding amnesty agreements. If matters cannot be settled without an on-farm inspection, this should be postponed until the restrictions are lifted.
He recognises this may mean that the meeting has to be held and the schedule of improvements agreed after the end of the amnesty period, saying: “We are asking all landlords and tenants to be reasonable about allowing the process to remain alive even after the end of the amnesty period. They should agree in writing that they will enable finalisation of amnesty claims to be carried out, if necessary after June 12.
“Where such agreement cannot be reached, the TFC should be informed.”
The difficulty about this approach is that in the event the landlord and tenant cannot reach agreement after the expiry of the amnesty period,
“We are asking all landlords and tenants to be reasonable about the process.
BOB MCINTOSH
tenants run the risk of being left high and dry, entirely dependent on the goodwill of their landlords.
Even presuming goodwill, it might simply be impossible for the parties to agree. Any agreement as envisaged by the TFC would require provisions about how disputes are to be resolved.
It seems to me that a tenant in this situation should serve a formal amnesty notice on the landlord prior to the expiry of the amnesty period.
Service of such a notice preserves the amnesty and allows time for parties to reach agreement. A landlord must serve an objection to an amnesty notice within two months of receiving it so landlords are protected if they feel they have reasonable objections.
Where a landlord does object, the tenant then has a further two months to make an application to the Land Court. Time is built into the system to allow parties to reach agreement even after service of an amnesty notice.
In extreme cases where an amnesty notice is served, an objection is lodged and application is then made to the Land Court, there is still an opportunity to have the Land Court application suspended to allow parties to continue to work to reach agreement.
In my opinion, in the absence of a formal extension of the amnesty period, this is the safest course of action on the part of the tenant farmer whose amnesty isn’t going to be completed by June 13 because of the current crisis.
Hamish Lean is a partner with Shepherd and Wedderburn.