Small holdings, big complexities

This blog post, by Malcolm Combe, originally appeared as an online article for the Journal of the Law Society of Scotland, available here. It is reproduced here with permission.

The law relating to leases of rural property in Scotland has long been an area replete with special considerations. There is a surfeit of statutory regulation in relation to crofting and agricultural holdings, but rural considerations flow from before that surfeit: for example, a rule about delectus personae to restrict assignation (Bell’s Principles, 1216).

Crofts (governed by the Crofters (Scotland) Act 1993, as copiously amended), and agricultural holdings (whether a “1991 Act” tenancy or one of the more recently introduced fixed-duration tenancies in terms of the Agricultural Holdings (Scotland) Act 1991 or the Agricultural Holdings (Scotland) Act 2003, both as extensively amended) are relatively well known. Those dabbling in rural matters can normally be on guard for these. But for the unwary and perhaps even unlucky solicitor, a small landholding might be chanced upon in a transaction.

Small landholdings are a type of rural lease that can be found outwith the traditional crofting counties (of the Highlands and Islands) that are not quite governed by the agricultural holdings regime. They have not – yet – been much affected by Holyrood legislation, save for s 6 of the Crofting Reform etc Act 2007, which amended the Crofters (Scotland) Act 1993 to allow small landholdings to be converted into crofts in areas outwith the traditional crofting counties but now designated as new crofting areas (namely Moray, the Cumbraes, Arran and Bute, per the Crofting (Designation of Areas) (Scotland) Order 2010, SSI 2010/29), and now part 11 of the Land Reform (Scotland) Act 2016. It is as a result of that more recent amendment that small landholdings will now find themselves subject to a bit more legislative attention.

History and current status

The statutory system of crofting was introduced to parts of Scotland by legislation passed in 1886, but the rest of Scotland had to wait until 1911 before its smallholdings were subjected to similar, and rather powerful, statutory control. The Small Landholders (Scotland) Act 1911 essentially expanded the system introduced by the Crofters Holdings (Scotland) Act 1886 to the whole of Scotland, bringing in control for matters like compensation for improvements (namely what a landlord would have to pay a tenant for any works introduced by the tenant) and security of tenure (meaning the ability of a tenant to hang around on land even at the end of the original term of a lease, provided rent was being paid and other obligations complied with). The Crofters (Scotland) Act 1955 then reintroduced the division between Highland and Lowland Scotland, leaving the 1911 Act and the 1886 Act (and indeed many other Acts) to govern leases of small landholdings outwith the crofting counties.

To this far from simple system, an extra layer of complexity can be introduced. The 1911 Act actually introduced two different regimes, where someone who rented a smallholding could be a “landholder” or a “statutory small tenant” (in terms of s 32 of that Act), depending on whether it was the landlord or the tenant (or indeed a predecessor of either of them) who had built the structures used for that smallholding. Generally speaking, a statutory small tenant has less in the way of statutory rights than a landholder.

For a variety of reasons, there are not that many of these regulated leases still in existence. Notwithstanding that relatively low number – which seems to be settled at 74 (yes, seventy-four) – there has been a perception that these leases have been ignored when other leases have not. In part, any neglect is ably demonstrated by the mass of legislation about crofting and agricultural holdings, but of course the low number of small landholdings also explains that lack of legislative attention. That point notwithstanding, it may be the case that parties to such leases do not have a particularly clear handle on what arrangement they have, not to mention that there are arguments about whether such arrangements are suitable for the present day, and as such it is a worthwhile exercise to have a look at small landholdings.

Modern reform?

To this mix, s 124 of the Land Reform (Scotland) Act 2016 can now be added. This was the result of a Scottish Green Party amendment at stage 3 of the then bill. It committed Scottish ministers to: (a) review the legislation governing small landholdings; and (b) lay a report of that review before the Scottish Parliament no later than 31 March 2017. This the Scottish ministers have done. The report can be found here.

The report is an impressive piece of work. (I declare an interest, in that I had some limited input to it: a couple of drafts were circulated to me and I commented on them. To be clear though, I declare that interest to give the credit to those that deserve it.) A lot of people inputted to this document, and of course those directly affected by the proposals (the landlords and tenants) provided data for the exercise, so any credit is due to them. This post has skimmed over some of the details about small landholdings, whereas the report goes into the background, the current regime, and the potential for the future in detail.

To offer some selected thoughts on the report’s interpretation of the future, it essentially narrows down three options, namely:

  • the status quo;
  • conversion to another type of tenancy; or
  • reform and modernisation.

The report then suggests two of them are not appropriate, as: maintaining the status quo would lead to further diminution of numbers of small landholdings (with unclear effects on rural Scotland); whilst mass conversion of small landholdings into another type of tenancy is just not quite suitable (as, for example, you could end up with crofts outside traditional and even recently expanded crofting areas, not to mention that it could have an uncertain effect on already settled positions between landlord and tenant). In passing, the report also tells us (at para 133) that to date, no small landholder in one of the new designated crofting areas has converted. Such small landholdings would be prime candidates for conversion, so this seems to show either that there is no appetite for conversion or that the existing conversion process is not appealing.

That leaves the reform and modernise option. Much could be said about this, but the two key issues that came up in consultation with respondents related to clarity of legislation (which is a bit of a bùrach across many statutes at present) and a right to buy. As regards the potential for a right to buy of any sort, irrespective of the undeniable politics of such an option it is clear that small landholdings missed out on such rights in 1976 (when an absolute right to buy was conferred on crofters) and 2003 (when a right of first refusal was given to secure 1991 Act tenants of an agricultural holding).

What next?

The Scottish Parliament will get the chance to ponder the report, but para 170 sets a number of future steps. Some of these might involve the Scottish Law Commission, the new Tenant Farming Commissioner, and the Crofting Commission. Other steps could involve researchers looking into historical data and trends relating to small landholdings, and (either related to that historical research or independently) the likely socio-economic impact of them in the present day.

To conclude, despite the relatively low numbers of small landholdings in Scotland, there is a lot of work to be done in relation to them. I will be watching carefully to see what happens next. Meanwhile, anyone who has to deal with the legislative regime will be praying a more user-friendly system emerges at the end of this process, while those directly involved with Scotland’s remaining small landholdings will be watching even more carefully than me to ensure that any new regime is workable both for modern agriculture and as a part of a healthy rural environment in Scotland.

The Fifth Element: Exclusive Possession in the Scottish Law of Leases

This blog post is by Mitchell Skilling, a 2016 LLB (Hons) graduate. It is based on the presentation he gave at the launch of the seventh volume of the Aberdeen Student Law Review, itself based on an article that he wrote for that volume.

At a common law level, the Scottish contract of lease is made up of four elements:

  1. parties acting as landlord and tenant;
  2. a property to be leased;
  3. payment of rent; and
  4. a period over which the contract has effect, which in Scots could be described as a definite ish (or end date).

Combined, these four requirements afford each party a personal contractual right enforceable against the other. A contract lacking one or more of these requirements is instead likely to be a contract of licence. However, there is a fifth element that lurks outside of this four-element paradigm: exclusive possession of the leased subjects by the tenant.

Under the Leases Act 1449, a tenant entering into possession of their leased subjects will, provided that the four elements are present, gain a real right enforceable against their landlord’s singular successor. This cannot be achieved with a licence agreement, which will only ever afford a personal right. Possession here has been clarified to mean exclusive possession (Millar v McRobbie 1949 SC 1, 8). Similarly, the various Housing Acts in the social and private rented sectors as well as the Agricultural Holdings Acts have used exclusive possession as a mechanism for obtaining security of tenure, a powerful right that protects the tenant against eviction without a legal ground, even past the end date of their lease.

From this, it would appear that exclusive possession plays no role in the construction of a common law lease, and that it is rather used only to obtain additional rights once that lease has been established. However, there appears to be a growing school of thought that it is an essential requirement on par with the other four. This was the opinion of Sheriff Gordon in the case of Conway v Glasgow City Council (1999 Hous. LR 20), which related to accommodation in a hostel for homeless people.

In that case, Sheriff Gordon stated that the law had ‘come increasingly to talk of exclusive possession as a necessary condition of a lease.’ To support this proposition, he cited the earlier case of Commercial Components (Int) Ltd v Young (1993 SLT (Sh Ct) 15). That case was an appeal to a Sheriff Principal in which it was said that exclusive possession was ‘one of the badges of a lease.’ In addition, Sheriff Gordon was persuaded by the defender’s arguments relating to the case Brador Properties Ltd v British Telecom Plc (1992 SC 12), which came before the Inner House of the Court of Session. The pursuer in the Conway case had tried to use Brador as authority for exclusive possession not being a feature of a lease, but Sheriff Gordon felt that it was in fact consistent with exclusive possession being a requirement of a lease as it was concerned with the question of what needed to be exclusively possessed.

Whilst Conway proceeded to appeal, it was ultimately decided on the basis of another, more successful, argument made by the pursuer, based on contractual rights unrelated to a tenancy. This meant that no further comments were made about Sheriff Gordon’s opinion on leases. This is a pity, as it is clear that these comments are not wholly consistent with the most likely readings of those two cases.

In the case of Brador, the idea that this case is consistent with exclusive possession as an element of a common law lease is at odds with its treatment of Street v Mountford ([1985] 1 AC 809), a case that is authority for this requirement in England and Wales. The Inner House stated that Street was of no assistance in this case, which suggests that their comments on sufficient possession instead related to an unspoken degree of possession that would rule out a lesser agreement.

Meanwhile, the reading of the term ‘badge of a lease’ from Commercial Components seems stretched in its interpretation. The word ‘badge’ does not suggest an essential element so much as an obvious, but not definitive, outward sign that something is the case, akin to a learner driver plate affixed to a car. Whilst it suggests a highly likely conclusion, it is not an absolute guarantee, and to treat it as such seems to go too far.

Later case law developments also seem to count against Sheriff Gordon’s interpretation of a lease. Denovan v Blue Triangle (Glasgow) Housing Association (1999 Hous LR 97), another hostel case decided later in the same year as Conway, did not use exclusive possession as a requirement of a lease, instead only bringing it in as something to be considered with legislation that first required a tenancy to be established. In the 2005 case of South Lanarkshire Council v Taylor ([2005] CSIH 6), it was held that a lease existed even with a contractual clause forcing the tenant to vacate their property at any time within a short notice period.

A final nail in the coffin for Conway came in the Land Court case of Cameron v Alexander. The landlord’s arguments in this case were strongly based on Sheriff Gordon’s opinion, however the court did not find them a persuasive authority. Instead, it stated that exclusive possession was an ‘important pointer’ in determining the nature of an indeterminate agreement, which seems more consistent with the ‘badge of a lease’ comment from Commercial Components.

Despite these comments, it may still be possible that there is a valid argument for including exclusive possession among the cardinal elements of a lease.

One such argument relates to legal certainty: that is, with a view to clarifying the distinction between leases and licences. Historically, the licence agreement has been rarely used in Scotland compared with its application south of the border, but in recent times the term has appeared more frequently in litigation. As such, a definitive difference between the two may be necessary in order to prevent future disputes. That being said, the introduction of a possessory requirement is not the only way to accomplish this. There is currently no statutory definition of a licence agreement, and while several texts have defined the term, no single one has become definitive. The creation of such a definition, rather than a modification of another type of contract, may serve as a better basis for distinguishing between the two.

Another argument for exclusive possession is that many types of lease now afford access to security of tenure, a right arguably greater than a personal right for its ability to keep a tenant in their property even past their ish date (assuming the landlord has no legal ground on which to evict them, such as non-payment of rent). Access to this right shifts the balance of power firmly in favour of the tenant, so perhaps the balance should be corrected by making those rights harder to access.

That being said, it has been observed by commentators such as Stalker that the various residential tenancy acts seem to have been designed to extend security of tenure to as many people as possible, so the introduction of a possessory requirement may go against the intentions of Parliament. Additionally, the introduction of a fifth element to benefit only one type of lease ignores the diversity present in the Scottish lease, which encompasses a broad variety of rights, some of which are not dependent on possession in order to be exercised.

Exclusive possession, then, is probably not the best means by which to distinguish leases from licences. What is required is a mode of distinction that respects the unique character of the Scottish lease and recognises the exact nature of the difference between the rights conferred by a lease and a licence.

The full article may be found in Volume 7 of the Aberdeen Student Law Review , which is available for free online viewing.

Rent Deposits – Filling in the Gaps

This blog post is by the undergraduate LLB (Hons) candidate Matthew Nicol.  Matthew is a member of this year’s Scottish Law of Leases Honours class.

Background

With all the major world-shaking events that are at present going on around us, it is easy to overlook the smaller things, which may, nevertheless, still have an effect upon us.  For example, on the Brexit/Trump scale of 0-10, the Tenancy Deposit Schemes (Scotland) Regulations 2011 might, on the face of it, rate at 0.00001. Yet the scheme significantly impacts upon landlords and tenants in Scotland’s private residential rented sector, and could, in the event of failure to comply with the regulations, result in landlords becoming liable to pay over to their tenants a hefty sum (albeit one that cannot exceed three times the amount of the tenancy deposit). In a case where the monthly rent is, say, £1560 (based upon three students sharing a flat, each paying £125 per week), the maximum penalty for non-compliance with the regulations would be £4875, with the money going to the tenants. This sanction is intended to deter non-compliance with a statutory scheme, providing enforceable protections to tenants against non-compliant landlords.

Phoebe Russel-Smith and others v Ijeoma Uchegbu

The case of Phoebe Russel-Smith, Stephanie Dion-Jones and Alexis Herskowit v Ijeoma Uchegbu [2016] SC EDIN 64 (hereinafter Russel-Smith) related to a dispute regarding a landlady’s admitted failure to lodge the deposit in an approved deposit guarantee scheme. Once the court action had commenced this requirement of the Regulations was eventually complied with, but there was another failure on the part of the landlady in relation to the provision of information (under Regulations 3 and 42 of the 2011 Regulations) to the tenants.

This note focusses on the issues arising out of a summary application raised against the landlady by three of her four co-tenants.

Res Judicata

For reasons that were unknown to the sheriff, one of the co-tenants, Marc Fitchett, chose not to participate in the action against the landlady. Notwithstanding this, the court proceeded by assessing the level of the penalty at the top end of that which was available to the claimants collectively (as in, the full monthly rent, as paid by all four tenants, times three).

Given Fitchett’s non-participation in the legal action, a problem was posed for the Sheriff in relation to the quantum of the sanction.  As Sheriff Welsh noted (at paragraph 6)

[o]nly three of the four tenants under the tenancy make this application. I do not know if Marc Fitchett has waived his right to apply for sanction. He can apply up to 31 October 2016. However, if he did, the landlady could not, in my opinion, be sanctioned twice. The scheme does not provide for that.

Clearly, this could result in some prejudice to the fourth tenant, as by not being joined in the action raised by the other three – was he even invited to? – the fourth tenant would lose out not only on the financial compensation at the time of the initial claim, but any further right of his to exercise this claim. Such is the nature of the doctrine of res judicata.

Res judicata, broadly stated, concerns circumstances in which pursuers are barred from continuing litigation where there has already been final judgement. The term is synonymous with ‘the matter decided’ and carries an implication, as recently illustrated in Smith v Sabre Insurance [2013] CSIH 28, that all losses arising out of a single incident ought to be raised at the same time (discussed by the Scots law firm Brodies here).  The case of Smith set out that this principle is a long-established and highly practical element of Scots law.

The case of Russel-Smith perhaps illuminates – in its particular statutory context – a particular quirk of the res judicata doctrine, whereby in trying to protect the defender from future litigation where a decision has already been made, prejudice actually crystallises instead on one (or more) persons who might have been potential pursuers.

The court’s response in Russel-Smith was robust in terms of addressing the issue of res judicata. The sheriff refused to reduce the award to the three co-litigant co-tenants pro-rata by 25% (so as, it had been submitted, to reflect non-participation in the action by one co-tenant).  This was because whatever course of action was taken, including an award made to the three tenants, the effect of that award would be that the fourth tenant would then be prevented from having an exercisable claim against the landlord. The sheriff was therefore moved to award the full amount to the three co-litigants, thereby preserving a right (and surely giving rise to a claim in unjustified enrichment) of the fourth tenant to claim against his former co-tenants for a 25% share of the award (which might be pursued under the new simple procedure, whereas actions under the Tenancy Deposit Scheme Regulations must be raised by way of summary application during or within three months of the termination of the tenancy; note also that such a claim would be subject to statutory prescription and not affected by the time limit for the raising of a claim under the regulations).

In terms of resolving the potential inequities which might result from the blocking any further claim on the ground of res judicata when an otherwise viable claim under the 2011 Regulations is not exercised at the same time as other claims (for example, where one co-tenants takes a month’s holiday following the termination of the tenancy then returns to their family home in Aberystwyth, or wherever, while the other three move on to another shared flat together and do not feel inclined to search out their former flatmate), the judgement in Russel-Smith does assist in granting another opportunity to a party to claim.

However, and as has already been referred to above, a distinct possible downside emerges out of the relative fluidity which the approach of the sheriff in Russel-Smith gives to the tenants in order to achieve a resolution for them collectively. Without knowing the rationale of the fourth tenant for refusing to partake in the initial claim, it could speculatively be said that the judgment in Russel-Smith appears to offer such a tenant the right to ‘piggyback’ on the efforts of his fellow tenants in the initial litigation after he had perhaps refused to be involved in that action.

The policy and statutory agenda behind the Regulations is to address the problem of landlords unfairly misusing tenancy deposits, and to protect against the landlord holding the deposit and then becoming insolvent. It is arguable that the effect of the judgement of Russel-Smith is to create the scope for tenants making claims against one another in the aftermath of a judgement against a landlord, which complicates the horizontal relationship between co-tenants (as well as distorting the vertical relationship between tenant and landlord).

Given that one of the primary aims of the Tenancy Deposit Scheme Regulations is (according to the legal commentator Angus McAllister) to ‘ensure that deposits are returned quickly and fairly, particularly in the event of a dispute’, the judgement of Russel-Smith appears to complicate this approach. The sheriff’s approach adds an extra dimension to the dispute process surrounding the deposit. Whilst it is correct that the matter has been resolved by the case of Russel-Smith, in that all of the losses arising from the incident were raised at the same time, the equity of the approach adopted by the court in Russel-Smith is not unchallengeable. Now we are faced with a question of whether the matter is truly decided if the full losses have been awarded to the claimants, yet there exists a right of another claimant to derive his share of the sum at a later date.

The calculation of the penalty

In calculating the amount of the penalty, Sheriff Welsh (at paragraph 9 in his judgement) adopted a two-stage process.  Firstly, he adjusted the full sum of the deposit so as to be pro rata of the number of ‘unprotected’ days out of the term of the tenancy:

In my judgement there are two broad aspects to the sanction […] Firstly, the lease lasted 334 days, for 270 days of which, the deposit was unprotected and the tenants deprived of protection from the scheme and the proper information. In my judgement, to mark the fact that the defender breached the regulations for a sustained period of time which subjected the tenants and the deposit to a risk the regulations are designed to avoid, the proportionate and appropriate starting point for sanction in these circumstances is £1550 divided by 334 multiplied by 270. This produces a figure of £1253.

Then he made an assessment of what might be termed the landlord’s culpa element

Secondly, to that sum I will add a weighting to reflect the fact that the landlady was repeatedly officially informed of her obligations and still failed to comply. I do not accept the suggestion this was wilful defiance of the regulations. I am more inclined, on a balance of equities, even if finely judged in this aspect of the case, to accept the submission that the defender was dilatory in attending to her obligations to protect the deposit and advise the tenants of their rights rather than in wilful defiance of the purpose of the scheme. In assessing this aspect I also weigh in the balance the fact that no actual prejudice occurred and in the final analysis the purpose of the regulations was not defeated and the deposit was returned to the tenants, in full, without dispute. I also take into account the early admission of breach in these proceedings and the responsible way the defender has remedied the situation through her agents. I had the benefit of seeing the defender during the proceedings and while it may be said; ‘There’s no art to find the mind’s construction in the face’ [Macbeth, Act 1 Scene 4], I am satisfied the assurances given by Mr Wells, that she deeply regrets the position she now finds herself in, are genuine.  For all these reasons, I will set the financial penalty to reflect this second factor, at £600.

The maximum possible penalty would have been £4,650, meaning that under Sheriff Welsh’s two step approach – with the first stage ‘deprivation of protection’ element having been set at £1,253 – the maximum ‘stage  2’ culpa element would have been £3,397.

Postscript

On 17 March 2016 the Scottish Parliament passed the Private Housing (Tenancies) (Scotland) Act 2016 (asp 19).  It received Royal Assent on 22 April 2016, and is currently subject to commencement.  Much necessary infrastructure for the new statutory tenancy regime created by the statute has to be put in place, and full commencement may take some time.  One aspect that is of interest here relates to Part 2 of the Act, under which the landlord is required to provide certain specified information to the tenant.  In the event of the landlord’s failing to do so, the tenant may make an application to the First-Tier Tribunal, with the tribunal having the power to sanction the landlord’s failure to provide the required information.  Section 19 of the 2016 Act allows the Tribunal the power to penalise the landlord by requiring her to pay ‘the person’ who made the application an amount not exceeding, in specified cases, six month’s ‘rent’.  Section 16 subsections (6) and (7) specify:

(6) In a case where two or more persons jointly are the tenant under a tenancy, references to the tenant in this section are to any one of those persons.

(7)  In subsection (2), “rent” means––

(a) the amount that was payable in rent under the tenancy at the time that notice of the application was given to the landlord, and

(b) in a case where two or more persons jointly are the tenant under the tenancy, the amount mentioned in paragraph (a) divided by the number of those persons.

Section 5 of the 2016 Act has the effect of extending references in other enactments to tenancies and to connected expressions so as to cover private residential tenancies under the 2016 Act (unless it appears from the context that a particular reference is not intended to cover private residential tenancies).

The First-Tier Tribunal for Scotland Housing and Property Chamber is to inherit the jurisdiction of the Sheriff Court in respect of private residential tenancies. The Chamber will take over the functions of the Private Rented Housing Panel and the Homeowner Housing Panel with effect from 1 December 2016, and will begin to hear more private rented sector cases in consequence of the transfer of jurisdiction from the sheriff courts plus actions relating to private residential tenancies under the 2016 Act from December 2017.

If Sheriff Welsh’s analysis in respect of res judicata in the context of tenancy deposits is to be followed, there will be the situation in which the First-Tier Tribunal will apply one (res judicata) rule in respect of rent deposits and another (non-res judicata) in respect of ‘certain specified information’.  The potential for confusion is clear. That being said, in either case, professionalism and best practise are clearly the landlord’s best safeguard.

Finally, it is worth noting that the First-tier Tribunal for Scotland Housing and Property Chamber and Upper Tribunal for Scotland (Composition) Regulations 2016 allow for tribunals of up to three members:

Composition of First-tier Tribunal

2 (1) Subject to paragraph (2) the First-tier Tribunal, when convened to decide any matter in a case, shall consist of—

(a) a legal member;

(b) a legal member and one ordinary member; or

(c) a legal member with two ordinary members.

This introduces scope for differences of opinion in relation to the quantification of statutory penalties, making Sheriff Welsh’s two-step mode of calculation an attractive approach.

Gotta catch ’em all, but what about the law? Access to land and #PokemonGO

This post is by Malcolm Combe

Amidst all that is going on in the world just now, I bet you a Jigglypuff you will have heard someone talking about Pokémon. You might not exactly know what this is, but you can still be affected, as this church in Glasgow discovered. You might have been bemused by the idea of people wandering around, smartphone in hand, chasing imaginary creatures in the augmented reality world of Pokémon GO. Or you might be an avid fan, so much so that you can identify with those who crowded into New York’s Central Park when a Vaporeon popped up.

This advance into augmented reality is a fun development for many and, it appears, a profitable one for Nintendo. That being the case, as the app has been rolled out across the world (launching in its native Japan today, as reported by BBC News) it has not been without issues. That news report highlights the first Japanese accident associated with the game has already occurred, after someone fell down some real stairs whilst distracted by the game. As it rolls across reality, it is clear there are safety issues involved with immersing yourself in augmented reality: in Scotland it might be mountainous terrain, in Bosnia it might be landmines. Its augmented reality has also rolled over the legal reality of various jurisdictions. The reality of realty, that is to say the reality of property law, allows landowners to take steps to retain and regain exclusive possession of their land in many circumstances. What those steps are will depend which jurisdiction a Pidgey nests in.

Scotland

What can a Scottish landowner do? In principle, the owner of land can get an interdict (a court order prohibiting certain conduct, equivalent to an English injunction) to prevent someone encroaching on her land by, for example, building on it. Similar orders could be obtained if someone was to undermine it or periodically intrude on it by swinging the jib of a crane over it. What about someone who turns up uninvited to your land without such profound plans? All they want to do is catch a Pikachu and move on, (hopefully) leaving the land itself undamaged and any real animals on it undisturbed. Can they do that?

Access to land in Scotland has been much discussed and often misunderstood. A commonly expressed sentiment is that there is no law of trespass in Scotland. That is not quite right, but from the other end of the spectrum a landowner putting up a sign saying ‘TRESPASSERS WILL BE PROSECUTED’ is likely to be sorely disappointed if it comes to an attempt to do so. Such signs might well suggest a desire to instigate criminal action against uninvited guests, but that is normally a matter for a public prosecutor in Scotland, namely the local procurator fiscal, rather than a landowner. Meanwhile, there are some circumstances when being on land can be a criminal offence, particularly if you are part of a disorderly group or if you cause damage to property or wildlife, but a careful Pokémon hunter should be able to avoid such offences. Indeed, a one-time, harmless trespasser might not even be liable for civil damages to a landowner in Scotland, although that should not be taken as an invitation to strut anywhere with impunity. Scotland is also criss-crossed by a number of defined public rights of way, allowing people to travel from one public place to another without fear of landowner challenge.

Private Property
This sign located off the old Deeside Railway promises prosecution for trespass. Good luck with that.

That gives an idea of the underlying Scots law position. That position has actually been liberalised by recent reforms, making the legal terrain even friendlier for access takers. The key legislation that does that is Part 1 of the Land Reform (Scotland) Act 2003. It gives everyone – yes, everyone, that is exactly what the statute says – rights to cross land or to be on land for certain purposes, including recreational purposes, subject to certain exceptions based on the character of the land or the conduct that is undertaken.

Those access rights are not unchecked: they must be exercised responsibly. Activity is not responsible if it interferes with the rights of other people, which includes other access takers as well as the landowner: if one person is lazily approaching a Snorlax, perhaps you should think carefully before you barge past them. There are also certain things that can never be classed as responsible, such as ‘hunting, shooting or fishing’ or taking motorised access (unless doing that in a vehicle which has been constructed or adapted for use by a person who has a disability). Although the term ‘hunting’ is not defined, it is respectfully submitted that hunting relates to real animals as opposed to augmented reality imaginary creatures.

Some land is excluded from the scope of access rights entirely, regardless of the conduct of a purported access taker. Access rights are simply incompatible with certain features on or of excluded land, such as a building, the ‘curtilage’ immediately surrounding a building, or a reasonably sized garden next to a dwelling. From this, we can glean that the interior of the church mentioned above would not be included in Scotland’s liberal access regime. Other exclusions include longstanding attractions where a fee is payable for entry, like Blair Drummond Safari Park, a sports field when it is in use, or farmland where crops are growing. Anyone seeking entry to such should ideally obtain permission: the ‘gotta catch ’em all’ defence will not wash here. In fact, Farmers Weekly has already carried an article warning Pokémon Go players to keep clear of farms.

Assuming the land itself is not excluded from access rights, can playing an augmented reality video game be classed as recreation? Recreation is not defined, but the Scottish Outdoor Access Code‘s (PDF) explanation of the term (at paragraph 2.7) is that it includes:

  • pastimes (such as watching wildlife, sightseeing, painting, photography and enjoying historic sites);
  • family and social activities (such as short walks, dog walking, picnics, playing, sledging, paddling or flying a kite);
  • active pursuits (such as walking, cycling, horse riding, orienteering, caving, air sports and wild camping); and
  • participation in events (such as walking or cycling festivals, hill running races, and orienteering events.

It does not seem a massive stretch to include Pokémon chasing as analogous to some of these activities, most notably orienteering.

England

All in all, it seems Scotland has a regime that is quite conducive to catching ’em all. What would be the position of an English landowner? It would be fair to say that England is not traditionally viewed as having a liberal access regime. Crucially, in England the very act of being on another person’s land without permission can give the relevant landowner a claim in damages, but England has also witnessed some important statutory reforms that widen access rights away from the traditional (delimited) public footpaths and occasional voluntary agreements.

The Countryside and Rights of Way Act 2000 applies to mapped open access land, which includes mountains, moor, heath and down, and registered commons (making a much smaller proportion of the country available for access when contrasted with Scotland, in the region of 865,000 acres). That legislation confers the right to enter and remain on land for the purposes of open-air recreation, but that right is restricted by twenty exceptions listed in a schedule to the statute.  The overall effect of this scheme would allow someone to walk on land, accompanied by a dog (but no other animal) and stop for a picnic, but not use a metal detector, camp or bathe in non-tidal water.  What about gaming? There is an exception relating to ‘organised games’. Previous DEFRA guidance suggested ‘organised games’ included ‘those which use a set pitch or defined area of play, organised starts and finishes and associated infrastructure, and which involves the participation of a number of people or a competitive element.  On the other hand, we do not consider that a family group or a small group of friends engaging in an ad-hoc game of rounders or cricket, playing with a frisbee etc are “organised games”.‘ As such, Pokémon hunting might just be alright in the areas mapped as open land, and perhaps also in coastal areas by virtue of the Marine and Coastal Access Act 2009.

Important as those areas are, what about the substantial area of land not covered by such legislation? In those circumstances, players may have to hope their desired Pokémon appears on an existing village green (which might not actually need to be green at all), or will be relying on a sympathetic landowner to allow access.

Conclusion

Each legal system may have different insights to bring to this new legal situation. Of particular interest to the liberally minded are the Norwegian friluftsliv, which translates as the ‘open air life’, and the Swedish allemansrätten and Finnish jokamiehenoikeus, which translate as ‘every man’s right’. For those in favour of a stricter approach, that mindset seems to be evident in many states in the USA. Wherever you are, there will be some considerations for landowners and access takers to work through: putting up a sign berating all things Pokémon is all well and good, but will it be enforceable?

STAY OUT OF MY YARD
Image credit: @davidharvey

Of course, there are other legal issues that might need to be considered. There might be a new issue for the future: should there be a remedy for a landowner against the person who projects augmented reality apparatus onto her land? This would not quite be analogous with a traditional nuisance by a neighbouring landowner or the situation of a photo or political slogan being projected onto a landmark. Alternatively, might there be some kind of negligence if people are lured to an unsuitable location?

Those challenges are for another day. All in all, it might be an idea to embrace the technology and make the best of it. That is what my own university seems to be doing, after all.

Although the allegedly grown-up Malcolm Combe is a lecturer in the School of Law, he remembers fondly the carefree days when he would come home from school to watch a TV double-header of Pokémon then cult Channel 4 quiz show ‘Countdown’. He also went to see ‘Pokémon: the First Movie’ in the cinema with his wee sister. He is delighted to find his latent knowledge of things like Team Rocket and Charmanders are once again relevant, and even more delighted to have combined that with some legal analysis.

UPDATE: A Drowzee and a Caterpie have been sighted in the Law School office. Staff are understandably concerned.

Scottish land reform – cool for cats?

This blog post, by Malcolm Combe, explores Scotland’s newest land reform law. For those short on time, more selective and succinct coverage is available in this article in The Conversation.

On 19 April 2016, the Land Reform (Scotland) Act 2016 received Royal Assent. This final step of the law-making process signifies that the reigning monarch has rubber-stamped a statute passed by elected representatives, in this case Members of the Scottish Parliament. Those with a sprinkling of public law knowledge will know that the Queen does not readily withhold Royal Assent, so her personal views about a law or its potential impact on her are not normally scrutinised. In the wide press coverage of the run-up to and passage of this land reform legislation, there was a curious challenge to this norm. A tweet and an associated front page splash from the newspaper The National proclaimed the following: “Purr-fect news for communities as Queen’s new tax bill pays for buyouts”.

The National - Land Reform

What was The National getting at? The first thing that might need an explanation is the “purr” reference, especially as the word “purr” does not actually feature in the news story (or, for that matter, the new statute). This is an oblique reference by the Scottish independence supporting newspaper to the fact the Queen apparently “purred” down the telephone to Prime Minister David Cameron in the aftermath of Scotland voting to remain in the UK on 18 September 2014. Now, though, the inference is that it is communities that will be purring, as they will benefit from any revenues that flow from the reinstatement of duties for certain land uses (namely shootings and deer forests). According to The National:

The Queen… will face an annual levy of thousands of pounds on her Balmoral property. Others who face paying the new tax include the Duke of Buccleuch, who is in charge of a sporting estate at Drumlanrig Castle in Dumfries and Galloway.

The Duke of Buccleuch (reported to be Scotland’s largest private landowner) and the Queen might make for handy, high-profile figures to be “land reformed”, but others without as much nobility or indeed land will be affected by this measure. Meanwhile, there are other measures in the Land Reform (Scotland) Act 2016 beyond the reintroduction of sporting rates which could also impact on a wide range of people.

So is the Land Reform (Scotland) Act 2016 “purr-fect” – sorry, time to scratch the cat imagery – perfect news for communities?

Before answering that, it should be recalled that this new statute is not the full story. This is not Holyrood’s first dalliance with land reform. In fact, we now have two Land Reform (Scotland) Acts, one from 2003 and a younger namesake from 2016.

The 2003 Act gave everyone the right to access Scotland’s land and inland waters, even without an owner’s prior consent, provided such access is taken responsibly and subject to certain exclusions relating to the character of land. It also provided for some rights of community acquisition, in rural areas and in the crofting areas of the north and west of Scotland.

Important as those innovations were, calls for further land reform in Scotland continued to be made from some sections of society. Such calls were answered in part by the Community Empowerment (Scotland) Act 2015. As its name suggests, that legislation aims to empower communities, which it does by giving them a number of entitlements to participate in local decisions and a new right of acquisition for abandoned, neglected or environmentally mismanaged land. It also widens the right of first refusal the 2003 Act introduced to rural Scotland by expanding it into Scotland’s cities.

Another answer to those calls is now found in the Land Reform (Scotland) Act 2016.

Cat-aloguing [sorry] the 2016 Act

This newest land reform statute contains a mix of measures. Two of those might lead directly to a change of landowner, either in terms of a community buying land to further the cause of sustainable development, or by allowing a secure agricultural tenant (more on such agricultural tenancies below) to buy land from her landlord in certain circumstances where that landlord is in material breach of a court order or an award made at arbitration.

Land reform can be about facilitating a change of ownership, but this land reform statute does far more than that. There are important changes that aim to make land reform a more permanent feature of the legal landscape, particularly a new non-party body called the “Scottish Land Commission”. When it is fully staffed and mobilised, the Commission will have a role in ensuring land reform stays in the foreground of Scottish policy, whilst maintaining proper oversight of the various measures that have been introduced. Further innovations include the promised “land rights and responsibilities statement”, which will be a standard against which landowners will be measured in future, and guidelines for engagement with local communities when important decisions are made by landowners.

A matter sometimes related to community engagement is whether a community knows who to engage with, as there have been occasions when an entity owning land in Scotland might not be entirely transparent (an issue which resurfaced with the recent “Panama Papers”). One part of the 2016 Act is designed to boost transparency. Together with a drive to complete the map-based Land Register of Scotland by 2024, new rules relating to the disclosure of who has a controlling interest of a landowning entity might mitigate such issues in future. Completely unrelatedly, but potentially leading to a similar effect, the UK Government has recently announced an anti-corruption push which will similarly lead towards transparency of landowning entities.

What else does the 2016 Act do? There is the already mentioned fiscal step towards land reform, changing the treatment of shootings and deer forests – or, to be exact, removing a relief that was conferred in the 1990s. Evidently this could have the effect of steering landowners towards a different use, depending on whether landowners are able to pay the rates, although some businesses may be able to benefit from other reliefs (such as those for small business) if they are eligible.

Deer management will also be affected by a regulatory as well as a fiscal change. Large areas of Scotland are given over to deer, which just about explains why deer feature in this newest of land reform statutes. An important ecological consideration is the lack of any natural predator, which necessitates human management of deer populations. Amongst other things, the new law will allow for the imposition of deer management plans in certain circumstances and will provide a power for the relevant authority to request information about a landowner’s planned management activities, rather than simply report on what has taken place (as was previously the case under the Deer (Scotland) Act 1996).

What if you want to go for a walk in an area where deer are found, or indeed anywhere else in the great outdoors? You still can. There are some technical reforms to the rights of access introduced by the 2003 Act also included in the 2016 Act, but these largely leave the existing rights as they were. (Incidentally, walking through an estate where legitimate deer management activities are taking place is probably not to be recommended.) There is also a technical reform to the regulation of “common good land” by local authorities, aimed at averting one of the issues that arose in relation to a new school in Portobello (analysed in this Edinburgh Law Review contribution (PDF)).

The last point to mention about the 2016 Act relates to its effect on the law of leasing, or at least two technical areas of rural leasing. The first affected area will be small landholder legislation, something of a niche area of landlord and tenant law. There is a commitment to review that legislation, with no indication yet of what changes might follow for Scotland’s relatively few remaining small landholders. Much more importantly, and in some cases controversially, there are a raft of reforms to the agricultural holdings regime.

Agricultural Holdings Reform

For many years, tenants with a certain type of agricultural lease have enjoyed something called security of tenure. This allows the tenant (and, in some cases, a successor or a transferee of an original tenant) to keep the lease of the rented property even after the original contractual term has finished, provided they have paid rent when due and generally maintained the property properly.

There has been a perception for a number of years that this system has not got the balance between the interests of tenants, landlords and indeed society as a whole quite right. The regime has contributed towards an environment where landlords often seek recovery of “vacant possession” of the land whenever they can, and traditionally this might have happened when there is a “break” in the succession of a lease. Aware of these issues, the Scottish Government appointed a specialist group to consider agricultural holdings legislation, which reported in 2015. The work of the group is reflected in the 2016 Act, which introduces two new types or rural leases – the repairing lease and the modern limited duration tenancy – and reforms the law relating to matters like rent review, assignation (transfer) and succession (inheritance).

Those changes to assignation and succession do not allow a lease to be passed to absolutely anyone, and as such the landlord still has a chance of getting the land back without being subject to a lease if there is no-one suitably close (in terms of relationship by blood or marriage/civil partnership) to the outgoing tenant to take it from them. That said, late in the parliamentary process a reform was made which might allow a secure lease to be passed to someone outwith those recognised proximate relationships. This controversial, and highly complex, reform will change the law in a way that makes it more difficult for a landowner to wash land clean of a lease. The current position is being changed to a position where an outgoing tenant can effectively cash-in the tenancy. The 2016 Act does still allow a landlord to get the land back, but not for free: it introduces a mechanism for the landlord to pay a sum to the tenant to buyout that lease. Where the landlord does not wish to buy it out, the tenant can then assign the lease to “an individual who is a new entrant to, or who is progressing in, farming”. As noted, this is a complex area, so it is not possible to explore this matter fully here, and there have been indications that landowners may challenge this particular reform on human rights grounds as an unfair interference with their property rights. Scottish legislation is susceptible to challenge in court, if it is not within devolved competence, for example by not being compatible with the European Convention on Human Rights. This was witnessed in the Salvesen v Riddell case (about an earlier agricultural holdings reform, which lumbered some landowners with a secure lease without compensation in a fashion found arbitrary by the courts) but not in the Pairc case (about a challenge to the crofting community right to buy (for value) in the Land Reform (Scotland) Act 2003, which was held to be a policy that was properly within a state’s margin of appreciation). If litigation was to follow in relation to the 2016 Act, suddenly the courts would have a role in the final approval of the law, which would mean the Queen’s Royal Assent would not be the final step after all.

Perfect legislation?

The 2016 Act covers a lot of legal ground. It will make a difference to landowners, land managers, communities, tenants and Scottish society as whole. That being said, it could have covered more ground still: for example, there have been suggestions about a cap on landownership above a certain level, restrictions on landholding entities registered outwith the EU, and the possible introduction of compulsory sale orders. None of those appear in the 2016 Act.

This suggests land reform activists might not think the 2016 Act is perfect after all, but what about landowners? Land reform is not exactly the kind of thing that will always please existing owners, but the one highlighted example about agricultural holdings reform demonstrates that they do have specific concerns which might yet lead to litigation.

Regardless of who is purring at the end of all this, the promised Scottish Land Commission, the preparation and ongoing review of measures to do with community engagement and land rights and responsibilities, the post-Holyrood election climate, and a new Cabinet Secretary for the Environment, Climate Change and Land Reform are all mixed together, it is clear that land reform is not going to retreat into the background any time soon. Indeed, the recent Holyrood election campaign demonstrated that many political parties are committed to further land reform. The fact that the Scottish National Party lost majority control of the Chamber means it will be looking for support from other political parties to implement its plans, which will have implications for any further land reform legislation.

No attempt has been made to contact the Queen to ascertain whether she is purring at the prospect of all of this, but one final feline observation might be made. Surprisingly, The National was not the first newspaper to juxtapose cats and Scottish land reform. The Scotsman got there first, with this cartoon from Iain Green appearing in December 2014.

The Scotsman - Iain Green

Reports that Nicola Sturgeon has declared open season for fat cat lairds have not yet been confirmed.

Further analysis of some of the new measures can be found in this article in the Journal of the Law Society of Scotland, the professional journal of Scottish solicitors. That contribution looks at the new community right of acquisition, the framework for community engagement and the new Scottish Land Commission in more detail, but skims over deer management, the change to the fiscal treatment of shootings and deer forests, and agricultural holdings law.

Those wishing to read even more on this topic will find that land reform is something of a recurring feature at Malcolm Combe’s personal blog: basedrones.wordpress.com. He also has an article on redistributive land reform in the next issue of the Environmental Law Review, an open access version of which is available here.