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JGM, Solicitor
Category: Law
Satisfied Customers: 9973
Experience:  30 years as a practising solicitor.
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A laywer asks me to give evidence regarding a tenancy, failing

Customer Question

A laywer asks me to give evidence regarding a tenancy, failing which he is instructed "to raise an action in the Scottish Land Court for declarator that there is no such tenancy and for removal, with expenses. Failure to produce such evidence will be founded upon in such action." My case is that I have a valid trenancy since 35 years and documentation to prove that this is so. Shall I actually provide the lawyer with any relevant documents beyond telling him what they are? Has a lawyer a right to ask for evidence?
Submitted: 1 year ago.
Category: Law
Expert:  JGM replied 1 year ago.
Thank you for your question. I am a Scots solicitor and will help you with this.
What kind of tenancy is this?
What is the dispute?
-Could you explain your situation a little more?
Customer: replied 1 year ago.

It is quite a small area of land. My initial response to the lawyer was this:

Dear Ms Gibb,

Your ref: FHG/RDB/GUN0035.1 06.05.2015

thank you very much for your letter on behalf of Mr John F Gunn. Please let us respond by setting out the material facts regarding the tenancy disputed by your client.

  1. The tenancy was granted to us (Mr Reiner & Mrs Sheileagh M Luyken) by the then proprietor Mr William F Gunn (Mrs Sheileagh M Luyken’s and Mr John Gunn’s late father) in 1980. As stipulated by the Agricultural Holdings (Scotland) Act 1991, the tenancy involved both continuous occupation and payment of rent, and a lease agreement, whether in writing or otherwise.

  2. The land was fenced, broken in, protected with a beech shelter hedge to the west, and planted with a larch and two black poplars, at our (the tenants) sole expense, and with the agreement of our landlord (Mr William F Gunn) between 1980 and 1982. We also built at our sole expense, and with the agreement of our landlord, a coldframe.

  3. Since 1984, the land in question formed an integral part of our agricultural holding, registration no.: 91/757/0323. It is being used as part of the business partnership known as “The Eggman’s Croft Enterprises”.

  4. Further improvements, in particular a hardstanding area to park agricultural implements and vehicles, were added in 1990/91, again at our sole expense, and with the agreement of the landlord (Mr William F Gunn).

  5. The septic tank to which you refer to was inserted at about the same time, with both the tenants and the landlord’s agreement, to enable the latter to build the dwelling known as “Hafod” on the north side of the road that separates the tenanted ground from the rest of the property.

  6. It is generally recommended that tenancy reviews should take place every three years or so, if only to resolve any outstanding problems. Reviews with the previous landlords Mr William F Gunn and Mrs Dilys E Gunn were held if, and when, needed, such as at the time of the insertion of the septic tank, or the formation of the hardstanding area.

  7. Mrs Dilys E Gunn inherited the property after her husband’s death with us (Mr & Mrs Luyken) as tenants of the land in question, having tenant’s rights in place. In 2011, Mr John F Gunn inherited the land after his (and Mrs Sheileagh M Luyken’s) mother’s death with us (Mr & Mrs Luyken) as tenants having tenant’s rights in place.

  8. Until two years ago, crop rent has been paid in the form of agricultural produce. In 2013, rent was paid by cheque, and in 2014 in cash, both times at Martinmas. The sums of £5 and £10, respectively, compare very favourably with our rents of £20 for the croft at 191A Polbain (which includes one share in over 6000 acres of common grazings), and of £20 for Badentarbat Parks which comprise approximately 12 acres of good grazing land. The 2013 rent appears to have been accepted though the envelope containing the 2014 payment seems to have been passed on to your offices.

  9. On 18/04/2011, The Keeper of the Records of Scotland made an entry in The Register of Community Interests in Land in terms of the Agricultural Holdings (Scotland) Act 2003, registration no.: AT01353, with respect to the land in question.

  10. On 1 August 2011, MacLeod & MacCallum, Solicitors, 28 Queensgate, Inverness, acting for Mr John F Gunn, challenged the entry and asked The Keeper for it to be rescinded. The Keeper duly investigated the challenge. Following the investigation, our right for a Registration of an Interest in Acquiring the Land was upheld.

  11. In May 2014, Mr John F Gunn commissioned a survey and home report for the property known as “Hafod”. The report stated that the septic tank is located “outwith the site, in a field on the opposite side of the access road”.

  12. In June 2014, Mr John F Gunn offered for sale the property known as “Hafod” under the terms and conditions of the said home report, presumably in recognition of our Right to Buy.

  13. There is ample photographic and other evidence to back up the veracity of this statement.

  14. We are open to negotiations about buying the land privately, i.e. at a price higher than it would presumably be fixed by valuation if we exercised our Right to Buy, should your client wish to dispose of Hafod. We would be open to have burdens attached, such as an obligation in perpetuity to keeping growth of trees down and/or felling of trees in order to maintain uninterrupted views over the sea from the house known as Hafod. The access to the septic tank is of course a right attached to Hafod in any case.

  15. We would kindly ask you to make your client aware that his habit of enforcing entry on the land tenanted by us, and of interference with the free movement of agricultural implements and vehicles, is inconsistent with the provisions of Agricultural Holdings (Scotland) Act 1991, Part II,Section 10.

Expert:  JGM replied 1 year ago.
That is an excellent letter and explains the background to me.
Is there any prejudice to you in producing the documentation establishing your tenancy and presumably avoiding the threatened litigation?
Customer: replied 1 year ago.

There are agricultural census forms from 1989, 1998 and 2004 which we sent to the Department. the originals are very difficult to obtain, I suppose. I've just got rough copies, not carbon copies. There is photographic evidence of the bit of ground before and after 1980. There is correspondence from 1981 to 1983 with the Crofters Commission, the Highlands and Islands Development Board and notes of discussions with a local food processor. I've got the delivery note of the material to create the hardstanding in 1989. And there would be oral evidence. I wondered whether it would be advantageous to provide the lawyer with copies of the evidence, or would it be better to give them a list like the one above, perhaps with a bit more detail. the laywer asked for returns and paperwork including IACS maps submitted to the Scottish Government Rural Payments and Inspections Directorate over the years but we never applied for subsidies of any kind, so we obviously we haven't got that. But I suppose these forms are not a precondition for an agricultural lease under the terms of the Agricultural Holdings Act, in any case.

Expert:  JGM replied 1 year ago.
It appears you have evidence of a 1991 Act tenancy with all that entails. I see no reason why you shouldn't provide the evidence that you have as well as statements of the oral evidence that can be produced, given that a formal written lease isn't necessary.
JGM, Solicitor
Category: Law
Satisfied Customers: 9973
Experience: 30 years as a practising solicitor.
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Customer: replied 1 year ago.

I followed your advice. Let's see what happens. Apart from other evidence, I supplied the lawyer with a written statement signed by the local Assessor of the Crofting Commission and by the tenant of the adjoining croft.

Expert:  JGM replied 1 year ago.
Thank you for letting me know.

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