What rights?

[Possible Smallholder]

My wife and I are interested in a 15ac smallholding (Scotland). The current owners have treated it as residential apart from a couple of horses, but a neighbour has had sheep on it or taken hay/silage off it for nearly 10 years. As far as we are aware there is no written agreement and they receive no payment other than enough hay to feed their own horses. Their is no mention of any of this in the particulars.

Obviously if we get as far as making an offer we would seek specific legal advice, but just wondered if anyone could give us an idea if :-

1. Does he have any tenancy rights given the length of time (i know seasonal lets are usually less than 12 months for a reason)
2. If we do have problems later, is it up to the seller to deal with it if we haven't been made aware in writing?

We would be reasonable regarding this years crop etc, but would look to be doing something for ourselves from next year.

I am a member on here (not bossfarmer) but i'm using a second account purely for this thread.

 

[7610 super q]

Be very, very, very careful. Don't know the law in Scotland, but I inherited a tenant on a block of land, who was only supposed to have summer grazing for one season. He's still there 40 years later.
I'd want a written letter from the neighbour to say he's leaving after he's made his hay.
If you are paying for vacant possession, then you would expect........vacant possession.

 

[Nearly]

What he said.

 

[Goweresque]

As above, if the property is advertised as being sold with vacant possession, then its down to the vendors to ensure the property is vacant at time of sale. If you bought it and the tenant had not gone then you'd have a stone cold claim for damages against the vendors. But you would still be stuck with the tenant and there'd be nothing you could do about it.

I would not let the previous tenant use the land after you have purchased it, even if he signed a grazing licence with you as new owner. Don't allow him to have continuity of access. Demand a date for vacant possession, take possession, lock/block the gates. It may be a bit harsh, but too many people have been 'nice' about these sort of things and had their good nature abused.

 

[Possible Smallholder]

Thanks all, guess I sort of knew the answer anyway. Have referred the concern to our solicitor. Awkward as know both vendor and grazer fairly well, and suspect the vendor might be unaware of the possible implications. Grazer could go either way - always seemed decent but probably very well aware of his rights.

 

[Pilgrimmick]

Just to confirm, is it a smallholding or a croft?

 

[Possible Smallholder]

Probably best described as a small farm, definitely not a croft.

 

[Pilgrimmick]

OK just checking, they are legally very different things.

 

[Dry Rot]

As Pilgrimmick says. This is one time you really do need to get yourself a solicitor qualified and experienced in Scottish property law. I wouldn't be putting too much reliance in sale particulars or an advertisement other than as a guide.

If you are buying under the Scottish offer syste, you could probably get your solicitor to insert clauses in your offer to make sure the points that concern you are covered.

 

[Possible Smallholder]

Thanks again for all the advice.

Solicitor has advised that it may be an issue and will include clauses if we go ahead with an offer.

Will be speaking to the vendors tonight and see what, if anything, they are aware of.

 

[Dry Rot]

If you are purchasing with vacant possession and don't get that, I'd assume you could go after the sellers for your expenses in getting what you have bargained for. But sensible to state that clearly as an express condition of your offer to remove all doubt.

 

[capfits]

The way you describe the situation it would that the guy who has the sheep on and taking hay is certainly a full Tennant in the eyes of the law, and as such if he wishes.
In Scotland never, never ever let anyone use any block of ground without a proper written ( legal) agreement, and ensure they follow it.

 

[glasshouse]

My wife and I are interested in a 15ac smallholding (Scotland). The current owners have treated it as residential apart from a couple of horses, but a neighbour has had sheep on it or taken hay/silage off it for nearly 10 years. As far as we are aware there is no written agreement and they receive no payment other than enough hay to feed their own horses. Their is no mention of any of this in the particulars.

Obviously if we get as far as making an offer we would seek specific legal advice, but just wondered if anyone could give us an idea if :-

1. Does he have any tenancy rights given the length of time (i know seasonal lets are usually less than 12 months for a reason)
2. If we do have problems later, is it up to the seller to deal with it if we haven't been made aware in writing?

We would be reasonable regarding this years crop etc, but would look to be doing something for ourselves from next year.

I am a member on here (not bossfarmer) but i'm using a second account purely for this thread.

If you know both parties, you need to speak to both parties to see where they stand and what they believe their rights are.
Far cheaper than lawyers initially.
I know of someone who bought a block of land where the tenant had unbroken occupancy for 40yrs.
He swallowed the vendors lies that it was only a yearly lease.
After buying, he asked the tenant to leave, which he refused, quite rightly

 

[Possible Smallholder]

Final update.

Our solicitor said that cropping doesn't count towards continuous occupancy, so the fact that the sheep are regularly excluded makes it safe enough.

However, our bid was unsuccessful by quite a margin.

Thanks for all the replies