International Perspectives Pose Questions for Scottish Land Reform

Land Commissioner, Megan MacInnes, reflects on last week’s Macaulay Development

Land Commission board portraits
Megan MacInnes, Scottish Land Commissioner

Trust workshop on Scottish land reform in a global context held at James Hutton Institute with participants from the US, Canada, Norway, Denmark, Slovakia, the Netherlands, Ireland, South Africa, as well as the UK.

As a self-confessed land reform geek, getting to spend two days sitting down with people who are researching and working on land reform from around the world sounds pretty perfect. Last week was such an opportunity, with the James Hutton Institute bringing practitioners and scholars from more than ten countries together, to discuss how Scotland’s efforts at land reform fit within the global context.

From initially focusing on our own model of community land ownership and how it compares to community, communal and municipal land ownership in other countries during the initial webinar, the presentations and conversations became more wide ranging over the course of the workshop.

Some topics were all too familiar: the challenges for young people wanting to get into farming; the ways in which community land trusts and other community groups are improving access to affordable housing in urban areas; and the extent to which land reform, in any context, is connected to a wider range of needs – soft and hard infrastructure, economic development, access to finance and unfavourable policy environments.

Others were radically different: how local communities are responding to large-scale land grabbing for agribusiness in the Philippines; how first nation communities in Canada were using land and property codes to gain greater autonomy over their own reserves; and the challenges of campaigning for and implementing land reform where there are long-term conflicts and internal displacement such as Myanmar faces.

Much bigger-picture questions the group tried to grapple with were the need for a new conceptualisation of land rights and responsibilities within land reform, away from the traditional focus of private property rights, and on this Scotland has a lot to share. Likewise, whether the future trajectory of land reform is radical, based on social justice, or whether it is steady, evolving through existing structures and frameworks is something that is still up for debate.

My personal reflections throughout were on community land ownership – what could Scotland learn from other countries, and what do we have to show in return? From my own experience working on land reform in Asia and internationally (particularly around strengthening community land rights) the direct comparisons are tantalisingly close, yet elusive. This is because the historical and contemporary context of community land ownership in Scotland is so very different from community and customary land ownership in much of the world. In fact, the most obvious comparison between arrangements for community and customary land and natural resource governance internationally is our crofting system, but even then significant differences are clear.

What is clear though is that like in Scotland, models of community land and natural resource ownership have a clear and prominent role in achieving future sustainable development and delivering broad public benefits.

Where I think there can be lessons learnt are around the governance structures enabling community-based models of land ownership. This includes how ownership models can be transparent and accountable, how to overcome the challenges of limited capacity and high burn-out of community members, and how to ensure governance models are forward-looking and not just reflecting the past. If we are going to truly normalise community land ownership in Scotland then I think there is much to be learnt from international experiences of hybrid and joint ownership models between community groups, the public and private sectors.

Where Scotland is already demonstrating leadership in community land ownership globally is our focus on legal title (rather than just recognising access or user rights) and the explicit and positive connection between land reform and the economic, social and cultural human rights.

We ended the conference with suggestions for ongoing research, discussions and more gatherings – so I am sure we shall have plenty of opportunities to continue the conversations.

The international experience and discussions from the webinar will be incorporated in to the review of ‘International experience of community, communal and municipal land ownership’ we have commissioned and the final report from SRUC, in cooperation with the James Hutton Institute, the University of the Highlands and Islands, the University of Aberdeen and Ting Xu, will be published in the coming months.

Featured Image – James Hutton Institute

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TFC blog: Agreeing and Managing Agricultural Leases

Tenant Farming Commissioner, Bob McIntosh, summarises the latest Code of Practice on Agreeing and Managing Agricultural Leases. Bob - portrait NEW

A decision to sign up to an agricultural lease is one which results in responsibilities and liabilities and should not be taken lightly and without understanding the full consequences and implications.  Understanding the terms of the lease at the outset is the first important step but thereafter it is essential that any agreements affecting the responsibilities set out in the lease are properly recorded. There needs to be a full understanding by both landlord and tenant of the nature and implications of a fixed duration lease.

There are some important principles which if followed will help to ensure that misunderstandings and disagreements don’t occur during the term of the lease.

1. Understanding the terms of the lease

A desire to secure a lease can sometimes lead to tenants signing up without fully understanding the implications. Landlords should always allow time for the tenant to understand, and if appropriate, negotiate the terms of the lease. This is particularly important in the case of the Modern Limited Duration Tenancy (MLDT) because the law allows some flexibility in agreeing such issues as the rent review mechanism and the responsibility for replacement and renewal of the fixed equipment. Not every MLDT will therefore contain the same terms and tenants are advised to take professional advice if they are uncertain about any of the implications of the draft lease provided by the landlord. Once the lease is signed it will be legally binding and changes can only be made with the agreement of both landlord and tenant.

Most new agricultural leases will now be for a fixed term and can only be renewed by agreement. It is important that, at the beginning of a fixed term lease, landlord and tenant have a discussion about what might happen at the end of the term, and the aspirations of both parties should be recorded so that there is no misunderstanding at the end of the term about what was agreed at the start. It is understandable that either of both parties may be unable to say what their attitude to continuation will be when the time comes and if that is the case it should be recorded. The aim is to avoid reaching the end of the term with different expectations about what will happen next. Unless an agreement has been reached to the contrary, tenants should never assume other than that a fixed term lease will terminate at the end of the term.

 2. Recording changes and agreements

During the term of the lease there are likely to be occasions when something occurs which might affect the rights and responsibilities of one or both parties. A common example would be the need for a tenant to seek consent for, or give notification of, a tenant’s improvement that might qualify for compensation at waygo. Too often this is subject to a verbal agreement between the tenant and the landlord or landlord’s agent. This is fine at the time but memories are short and personalities change and the end result is disagreement about what may or may not have been agreed. It is imperative that any such agreements and notifications are properly recorded in writing. In many cases a simple exchange of letters or emails (with a printed copy retained) will suffice but in the case of a more complex issue it may be necessary to have a proper legal agreement drawn up. Tenants and landlords are advised to take professional advice about the best way forward if there is any doubt about the most appropriate action to take.

 3. Actions towards the end of the lease

If a fixed duration tenancy has been in place for a reasonable length of time (and many are of 15 years or more duration) it is understandable that the tenant may have invested emotionally and financially in the holding and will be disappointed by a decision by the landlord not to renew. The law ensures that tenants of LDTs and MLDTs must be given reasonable notice of a decision to end the lease at the expiry of its term but this will not always be enough to prevent public and political opinion from seeing this as an ‘unfair eviction’ as has happened in one recent case. It will be helpful therefore if a conversation is held between landlord and tenant well in advance of the end date to explore the aspirations of both parties and to consider what options may be available. Much will depend on the landlord’s intentions towards the land but discussions might include consideration of-

·      the tenants age and the possibility of extending the lease to enable the tenant to reach pension age.

·      whether there might be an option of the tenant retaining the house if this is not needed

·      the impact on the tenant’s business if this is the only or main income source

·      whether another holding in the landlord’s ownership might be available.

 Tenants must accept that a fixed duration tenancy is just that and that it may not be possible for the landlord to provide any of the above, but landlords should be aware that a decision to terminate a fixed duration tenancy will be more supportable if it is preceded by such discussions.

Read the full Code of Practice.