Landlords and tenants farming amnesty can still work - Bob McIntosh

With a significant number of businesses missing the boat on the tenants’ improvements amnesty – despite the six-month extension - concerns have been raised that the large number of formal notices issued could result in many cases being taken to the Land Court.

And Scotland’s Tenant Farming Commissioner, Bob McIntosh, has stepped in to advise those who missed the second deadline of December 12 that “with a little bit of imagination” from all parties, it should still be possible to reach an agreement without incurring the time and costs associated with going as far as the courts:

“With good will on both sides therefore, it should still be possible, despite the Covid restrictions, to reach agreement without the need to refer the matter to the Land Court and without prejudicing the position of either party, albeit that reaching such agreement may take longer than would otherwise have been the case,” said McIntosh.

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He said that the hindrance caused by the Covid restrictions had played a role in many of the delays – and, against the background of time limited legal procedures, continued to present a barrier to the finalisation of agreements where a field inspections were required.

“Field inspections are still possible if the travel and meeting outdoors exemptions can be respected and if both parties are comfortable with doing so but should be avoided wherever possible, in line with Scottish Government guidance about working from home unless this is not possible,” he said.

But he added that technology could also be used if both parties had basic IT skills and equipment:

“Seeing and discussing a claimed improvement on the screen of a smartphone, tablet or laptop may not be as good as a meeting on site but may be sufficient to satisfy the landlord that the claimed improvement meets the eligibility criteria.”

McIntosh said that this could be done in real time or after submission of an online video by the tenant.

He explained that where an amnesty notice had been issued, the landlord had two months to decide whether to object or not:

“If a site meeting cannot be arranged or agreement cannot be reached for other reasons in that period, the landlord should issue a notice of objection as near to the end of the two month period as possible, while explaining to the tenant that this is being done to protect the landlord’s position but that it is hoped that agreement can be reached in the following two month period within which the tenant has to decide whether to apply to have the matter considered by the Land Court.”

He added that if agreement still hadn’t been be reached by the end of the second two month period, the tenant could act protect his/her position by applying to the Land Court - but he reminded the sector that there was also the option of sisting (temporarily suspending the legal procedure) the application in order to provide more time for discussion.