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Contents
Announcements
B: Business Programme
C: Committee Agendas
E: Written questions
F: Motions and Amendments
G: Bills
H: New Documents
K: Progress of Parliamentary business

 

Business Bulletin No. 46/2003

Monday 10 March 2003

Section G: Bills: Notices and Amendments

  

New amendments to Bills lodged on 7 March 2003

Agricultural Holdings (Scotland) Bill - Stage 3

Section 1

Murdo Fraser

43 In section 1, page 1, line 26, at end insert <; but, notwithstanding that repeal, that section continues to apply to any lease under that section entered into before the coming into force of this subsection until the date on which that lease would, but for this subsection, expire.>

Ross Finnie

Supported by: Allan Wilson

44 In section 1, page 2, line 2, after <subsection> insert <and the 1991 Act applies in relation to the tenancy>

Section 2

Ross Finnie

Supported by: Allan Wilson

45 In section 2, page 2, line 9, leave out <in writing provided that> and insert <provided that-

<(a) the agreement is-

(i) in writing and specifies the date on which the termination is to have effect; and

(ii) made not less that 30 days before that date; and

(b)>

Ross Finnie

Supported by: Allan Wilson

46 In section 2, page 2, line 14, at end insert-

<( ) The landlord or tenant is entitled, at any time before the date on which the termination under subsection (1) has effect, to revoke (without penalty)-

(a) the agreement made under that subsection; and

(b) the lease mentioned in subsection (2),

by giving notice in writing to the other of the revocation.>

Ross Finnie

Supported by: Allan Wilson

47 In section 2, page 2, line 18, after <lease)> insert <; and

<(b) such compensation as the tenant would have been entitled to under section 45A (compensation arising as a result of diversification and cropping of trees) of that Act,>

Ross Finnie

Supported by: Allan Wilson

48 In section 2, page 2, line 21, leave out subsection (5)

Section 7

Ross Finnie

Supported by: Allan Wilson

49 In section 7, page 4, line 30, leave out <as to whether> and insert <that>

Ross Finnie

Supported by: Allan Wilson

50 In section 7, page 4, line 39, leave out <tenancy> and insert <lease>

Ross Finnie

Supported by: Allan Wilson

51 In section 7, page 5, line 2, leave out <tenancy> and insert <lease>

Ross Finnie

Supported by: Allan Wilson

52 In section 7, page 5, line 8, leave out second <the> and insert <any reasonable>

Ross Finnie

Supported by: Allan Wilson

53 In section 7, page 5, line 9, at end insert-

<( ) For the purposes of subsection (3)(b), what is good husbandry is to be construed by reference to the Sixth Schedule to the Agriculture (Scotland) Act 1948 (c. 45).>

Section 8

Murdo Fraser

54 In section 8, page 5, line 27, leave out from <, provided> to end of line 31

Murdo Fraser

55 In section 8, page 5, line 38, leave out from <subsections> to <do> in line 39 and insert <subsection (5) applies to a notice under this subsection as it does>

Murdo Fraser

56 In section 8, page 6, line 12, leave out from <subsections> to <do> in line 13 and insert <subsection (5) applies to a notice under this subsection as it does>

Murdo Fraser

57 In section 8, page 6, line 14, leave out from <references> to <references> in line 15 and insert <reference in subsection (5) to the expiry of the term of the tenancy is to be read as a reference>

Section 9

Ross Finnie

Supported by: Allan Wilson

58 In section 9, page 7, line 1, leave out from <, having> to end of line 17 and insert <the tenancy would reasonably be expected to fetch in the open market where there is a willing landlord and a willing tenant-

(a) disregarding-

(i) any effect on rent due to the fact that the tenant is in occupation of the land; and

(ii) any distortion in rent due to a scarcity of lets; and

(b) having regard to-

(i) the terms of the tenancy (other than those relating to rent);

(ii) information about rents for other agricultural tenancies (including when fixed) and any factors affecting those rents (or any of them) except any distortion due to a scarcity of lets; and

(iii)>

Ross Finnie

Supported by: Allan Wilson

59 In section 9, page 7, line 34, at beginning insert <For the purposes of subsection (6)-

(a) subject to paragraph (b), "improvements" is to be construed by reference to Schedule 5 to the 1991 Act; and

(b)>

Ross Finnie

Supported by: Allan Wilson

60 In section 9, page 7, line 37, leave out <deemed, for the purposes of subsection (6), to be> and insert <to be treated as>

Section 10

Ross Finnie

Supported by: Allan Wilson

61 In section 10, page 8, line 8, leave out <for which compensation is provided for by virtue of this> and insert <specified in Schedule 5 to the 1991>

After section 11

Ross Finnie

Supported by: Allan Wilson

62 After section 11, insert-

<Right of tenant to withhold rent

(1) Subsection (2) applies to an order-

(a) made under subsection (1)(b) of section 68; and

(b) which in relation to a failure of the landlord in a short limited duration tenancy or a limited duration tenancy to fulfil any obligation the landlord has towards the tenant in respect of fixed equipment.

(2) Where the landlord has failed-

(a) in a material regard; and

(b) as at the date specified under subsection (1A) of that section,

to comply with an order to which this subsection applies, the tenant may apply to the Land Court for an order under subsection (3).

(3) An order under this subsection may (either or both)-

(a) authorise the tenant to carry out such work as the landlord would have to have carried out for the landlord to comply with the order to which subsection (2) applies; and

(b) authorise the tenant to withhold payment of the rent payable to the landlord under the tenancy on the condition that the tenant consigns to the Land Court the amount otherwise so payable.

(4) The Land Court may, on the application of the tenant, from time to time release to the tenant any of the amount so consigned towards or in satisfaction of any reasonable costs incurred or to be incurred by the tenant for the purposes of or in connection with the carrying out of such work as is mentioned in paragraph (a) of subsection (3).

(5) The Land Court, on the application of the landlord and having regard to-

(a) whether any work mentioned in paragraph (a) of subsection (3) remains to be carried out; and

(b) any costs mentioned in subsection (4),

may terminate the order made under subsection (3) if it considers that it would be not be appropriate for the order to remain in force.

(6) Where the Land Court terminates the order made under subsection (3), it is to order such division between the landlord and tenant of the amount (or, where any of the amount has been released to the tenant, any remaining amount) consigned under subsection (3)(b) as it considers to be equitable.

(7) Any work carried out and authorised under subsection (3)(a) is to be treated as having been carried out at the landlord's expense in so far as the costs of the work have been or are to be satisfied by the release to the tenant of any amount consigned under subsection (3)(b).

(8) Any right of the landlord to irritate the lease or remove the tenant on the grounds of non-payment of rent is unenforceable if the non-payment of rent is in consequence of an authorisation under subsection (3)(b) to withhold rent.

(9) Any term of the lease or of any agreement between the landlord and tenant that purports to deprive the tenant of any right conferred by virtue of this section is, in so far as it so purports, of no effect.>

Section 12

Ross Finnie

Supported by: Allan Wilson

63 In section 12, page 9, line 4, leave out <(as read with section 5(2) to (4) of the 1991 Act)>

Section 15

Ross Finnie

Supported by: Allan Wilson

64 In section 15, page 10, line 17, leave out subsections (3) to (5) and insert-

<(3) There is incorporated in every lease constituting a short limited duration tenancy or a limited duration tenancy an undertaking by the landlord that the landlord will-

(a) at the commencement of the tenancy or as soon as is reasonably practicable thereafter, put the fixed equipment on the land into a thorough state of repair and will provide such buildings and other fixed equipment as will enable an occupier reasonably skilled in husbandry to maintain efficient production as respects both-

(i) the kind of produce specified in the lease, or (failing such specification) in use to be produced on the land; and

(ii) the quality and quantity of such produce; and

(b) during the tenancy effect such replacement or renewal of the buildings or other fixed equipment as may be rendered necessary by natural decay or by fair wear and tear.

(4) In subsection (3)(a), "produce" includes anything (whether live or dead) produced in the course of agriculture.

(5) There is also incorporated in every such lease a provision that the liability of the tenant in relation to the maintenance of fixed equipment extends only to a liability to maintain the fixed equipment on the land in as good a state of repair (natural decay and fair wear and tear excepted) as it was in-

(a) immediately after it was put in repair as mentioned in subsection (3)(a); or

(b) in the case of equipment provided, improved, replaced or renewed during the tenancy, immediately after it was so provided, improved, replaced or renewed.

(6) Any agreement between the landlord and tenant which purports to provide for the tenant to bear any expense of any work which the landlord is required to execute in order to fulfil the landlord's obligations under the lease is of no effect.

(7) Any term of a lease constituting a short limited duration tenancy or a limited duration tenancy that requires the tenant to pay the whole or any part of the premium due under a fire insurance policy over any fixed equipment on the land is of no effect.>

Section 16

Ross Finnie

Supported by: Allan Wilson

65 In section 16, page 10, line 32, at end insert <(and only if)>

Ross Finnie

Supported by: Allan Wilson

66 In section 16, page 10, line 34, leave out <has been granted on an application made> and insert <requires to be obtained, and has been obtained,>

Section 17

Ross Finnie

Supported by: Allan Wilson

67 In section 17, page 12, line 1, leave out from <agreement> to <be> in line 3 and insert <term of such a lease or of an agreement in connection with the lease that provides for the lease to be irritated solely on the grounds that the tenant is not or has not been resident on the land is>

Ross Finnie

Supported by: Allan Wilson

68 In section 17, page 12, line 6, leave out <subsection (3)> and insert <subsections (3) and (3A)>

Ross Finnie

Supported by: Allan Wilson

69 In section 17, page 12, line 15, at end insert-

<(3A) In the case of limited duration tenancies, such use of any of the land, or such change to the land, for a non-agricultural purpose as has been permitted under section 35 or 35A is to be treated as being in accordance with the rules of good husbandry.>

Section 21

Ross Finnie

Supported by: Allan Wilson

70 In section 21, page 14, line 11, leave out from <shall> to the end of line 14 and insert <must give notice of the transfer to the landlord within 21 days of the transfer or (where that is not possible) as soon as practicable thereafter; and the lease is, subject to subsections (2) and (3), binding on the landlord and that person as landlord and tenant respectively as from the date of the transfer if such notice is given.>

Ross Finnie

Supported by: Allan Wilson

71 In section 21, page 14, line 24, at end insert-

<(3) Where a lease constituting a short limited duration tenancy or a limited duration tenancy is transferred to a person under subsections (4A) and (4B)(b) of section 16 of the 1964 Act, the landlord is entitled to acquire the person's interest in the lease provided that-

(a) the landlord gives the person notice-

(i) in writing; and

(ii) within 30 days of the giving of the notice under subsection (1),

of the landlord's intention to acquire that interest; and

(b) the terms upon which the landlord acquires that interest are no less favourable to the person than any reasonable terms upon which the lease was transferred to the person.>

Section 26

Ross Finnie

Supported by: Allan Wilson

72 In section 26, page 17, line 17, at end insert-

<( ) between spouses in pursuance of an arrangement between them entered into at any time after they have ceased living together;>

Section 27

Ross Finnie

Supported by: Allan Wilson

73 In section 27, page 18, line 25, after <is> insert <for the time being>

Section 28

Ross Finnie

Supported by: Allan Wilson

74 In section 28, page 19, line 22, leave out <14> and insert <28>

Section 30

Ross Finnie

Supported by: Allan Wilson

75 In section 30, page 21, line 26, at beginning insert <Where the price is not agreed between the seller and the tenant,>

Section 31

Ross Finnie

Supported by: Allan Wilson

76 In section 31, page 22, line 2, after <valuer> insert <appointed under section 30>

Ross Finnie

Supported by: Allan Wilson

77 In section 31, page 22, line 9, leave out <knowledgeable and prudent>

Ross Finnie

Supported by: Allan Wilson

78 In section 31, page 22, line 12, leave out <knowledgeable and prudent>

Ross Finnie

Supported by: Allan Wilson

79 In section 31, page 22, line 16, at end insert-

<( ) taking account of when the seller would in the normal course of events have been likely to recover vacant possession of the land from the tenant;>

Ross Finnie

Supported by: Allan Wilson

80 In section 31, page 22, line 30, leave out from <(and> to end of line 36

Ross Finnie

Supported by: Allan Wilson

81 In section 31, page 22, line 36, at end insert-

<( ) taking no account of any increase in the value of the land resulting from the use of any of the land, or changes to the land, for a purpose that is not an agricultural purpose or the carrying out of conservation activities on the land;>

Ross Finnie

Supported by: Allan Wilson

82 In section 31, page 23, line 1, at end insert-

<( ) For the purposes of subsection (2)(d)-

(a) subject to paragraph (b), "improvements" is to be construed by reference to Schedule 5 to the 1991 Act; and

(b) the continuous adoption by the tenant of a standard of farming or a system of farming more beneficial to the land than the standard or system required by the lease or, in so far as no system of farming is so required, than the system of farming normally practised on comparable agricultural land in the district, is to be treated as an improvement executed at the tenant's expense.>

Section 31A

Ross Finnie

Supported by: Allan Wilson

83 In section 31A, page 23, line 29, leave out <58A(3)> and insert <58A(2)>

Section 33

Ross Finnie

Supported by: Allan Wilson

84 In section 33, page 24, line 31, leave out <any decision of the valuer made> and insert <the valuation carried out>

Ross Finnie

Supported by: Allan Wilson

85 In section 33, page 25, line 14, at end insert-

<( ) The decision of the Lands Tribunal in an appeal under this section is final.>

Section 33A

Ross Finnie

Supported by: Allan Wilson

86 In section 33A, page 25, line 18, leave out from <fact> to end of line 21 and insert <law arises which may competently be determined by the Land Court by virtue of the 1991 Act or this Act, the Tribunal is to refer the issue to the Land Court for determination unless the Tribunal considers that it is not appropriate to do so.>

Section 34

Ross Finnie

Supported by: Allan Wilson

87 In section 34, page 26, line 2, leave out <permitted under section 35> and insert <has been permitted under section 35 or 35A>

Ross Finnie

Supported by: Allan Wilson

88 In section 34, page 26, line 3, leave out <section 35> and insert <sections 35 and 35A>

Section 37A

Ross Finnie

Supported by: Allan Wilson

89 In section 37A, page 29, line 18, leave out <be null and void> and insert <not apply in relation to such part or proportion of the improvement as the landlord would have been so required to carry out in order to fulfil those obligations>

Ross Finnie

Supported by: Allan Wilson

90 In section 37A, page 29, leave out line 22

After section 37A

Ross Finnie

Supported by: Allan Wilson

91 After section 37A, insert-

<Amount of compensation where grant made to tenant

In section 36 (amount of compensation) of the 1991 Act, in subsection (3), for the words from "improvement" in the first place where it appears to the end there is substituted "improvement-

(a) there shall be taken into account any benefit which the landlord has agreed in writing to give the tenant in consideration of the tenant carrying out the improvement; and

(b) where a grant has been or will be made to the tenant in respect of the improvement, subject to the conditions of the grant-

(i) if either the landlord or tenant has not made or will not make a contribution towards the cost of the improvement, or neither of them has made or will make such a contribution, the grant shall not be taken into account;

(ii) in any other case, there shall be taken into account such proportion of the grant as equals the proportion of the contribution by the tenant towards the cost of the improvement as a proportion of the total of his contribution added to that of the landlord.".>

Section 38

Ross Finnie

Supported by: Allan Wilson

92 In section 38, page 30, line 11, leave out from <by> to end of line 15 and insert <during two or more tenancies,>

Section 40

Ross Finnie

Supported by: Allan Wilson

93 In section 40, page 30, line 32, leave out from <, account> to end of line 36 and insert-

<(a) account is to be taken of any benefit which the landlord has agreed in writing to give the tenant in consideration of the tenant carrying out the improvement; and

(b) where a grant has been or will be made to the tenant in respect of the improvement, subject to the conditions of the grant-

(i) if either the landlord or tenant has not made or will not make a contribution towards the cost of the improvement, or neither of them has made or will make such a contribution, the grant is not to be taken into account;

(ii) in any other case, there is to be taken into account such proportion of the grant as equals the proportion of any contribution made by the tenant towards the cost of the improvement as a proportion of the total of the tenant's contribution added to that of the landlord.>

Section 41

Ross Finnie

Supported by: Allan Wilson

94 In section 41, page 31, line 4, leave out <as to compensation or otherwise>

Section 44

Ross Finnie

Supported by: Allan Wilson

95 In section 44, page 31, line 36, after <reduced> insert <during the tenancy>

Ross Finnie

Supported by: Allan Wilson

96 In section 44, page 31, line 38, leave out from <or> to end of line 39

Ross Finnie

Supported by: Allan Wilson

97 In section 44, page 32, line 21, leave out from <by> to end of line 26 and insert <during the tenancy by such use of the land or part of the land, or such change to the land, for a purpose that is not an agricultural purpose-

(a) as occurred on or after the coming into force of this section; and

(b) as had been permitted under section 35 or 35A of the Agricultural Holdings (Scotland) Act 2003 (asp 00),

the tenant shall, subject to subsections (4B) and (4C) below, be entitled, on quitting the holding on termination of the tenancy, to recover from the landlord such compensation as fairly represents the value of the use, change or carrying out of the activities to an incoming tenant.

(4B) In ascertaining the amount of compensation payable under subsection (4A) above-

(a) there shall be taken into account any benefit which the landlord has agreed in writing to give the tenant in consideration of the matters referred to in that subsection; and

(b) where a grant has been or will be made to the tenant in respect of those matters, subject to the conditions of the grant-

(i) if either the landlord or tenant has not made or will not make a contribution towards the cost of the improvement, or neither of them has made or will make such a contribution, the grant shall not be taken into account;

(ii) in any other case, there shall be taken into account such proportion of the grant as equals the proportion of the contribution by the tenant towards the cost of the improvement as a proportion of the total of his contribution added to that of the landlord.

(4C) No compensation is payable under subsection (4A) above if, owing to-

(a) any of the matters referred to in that subsection, the land is unsuitable for use for agriculture by an incoming tenant; or

(b) any use of fixed equipment in connection with any of those matters, the landlord would, at the commencement of an incoming tenant's tenancy, be unable to fulfil his obligations under the lease as to fixed equipment,

in so far as those matters or, as the case may be, that use is attributable to those facts.

(4D) Where the tenant has remained in occupation of the holding during two or more tenancies, he shall not be deprived of his right to compensation under this section by reason only that the use of the land or change to the land did not occur during the tenancy on the termination of which he quits the holding.".>

Ross Finnie

Supported by: Allan Wilson

98 In section 44, page 32, line 28, leave out <after "45" there is inserted "or> and insert <, for the words "under section 45" there is substituted "by the landlord under section 45 or>

Section 46

Ross Finnie

Supported by: Allan Wilson

99 In section 46, page 33, line 35, leave out <(2)(b)> and insert <(2)>

Before section 52

Ross Finnie

Supported by: Allan Wilson

100 Before section 52, insert-

<Agreements as to fixed equipment

In section 5 (fixed equipment and insurance premiums) of the 1991 Act-

(a) subsection (3) is repealed; and

(b) after subsection (4) there is inserted-

"(4A) Any agreement between the landlord and tenant made before the coming into force of this subsection which purports to provide for the tenant to execute on behalf of the landlord (whether wholly at his expense or wholly or partly at the expense of the landlord) any work effecting such replacement or renewal of the building or other fixed equipment on the holding as is rendered necessary by natural decay or by fair wear and tear shall be nullified provided that subsection (4B) below is complied with.

(4B) This subsection is complied with if-

(a) following a determination (in accordance with section 13 of this Act) of the rent payable in respect of the holding, the tenant gives notice to the landlord that the agreement be nullified as from a date specified in the notice; and

(b) on that date-

(i) the buildings and other fixed equipment are in a reasonable state of repair; or

(ii) if the buildings and other fixed equipment were in an unreasonable state of repair when the agreement was made, they are not in a worse state of repair than they were then.

(4C) Any agreement between the landlord and tenant made before the coming into force of this subsection which purports to provide for the tenant to bear any expense of any work effecting such replacement or renewal of the building or other fixed equipment on the holding as is rendered necessary by natural decay or by fair wear and tear shall be subject to subsections (4A) and (4B) above.

(4D) Any agreement between the landlord and tenant made on or after this subsection comes into force which purports to provide for the tenant to bear any expense of any work which the landlord is required to execute in order to fulfil his obligations under the lease shall be null and void.".>

After section 54

Ross Finnie

Supported by: Allan Wilson

101 After section 54, insert-

<Tenant's right to withhold rent

After section 15 (increase of rent for certain improvements by landlord) of the 1991 Act there is inserted-

"Tenant's right to withhold rent

15A Tenant's right to withhold rent

(1) Subsection (2) below shall apply to an order-

(a) made under subsection (1)(b) of section 68 of the Agricultural Holdings (Scotland) Act 2003 (asp 00); and

(b) which is in relation to a failure of the landlord of an agricultural holding to fulfil any obligation he has towards the tenant in respect of fixed equipment.

(2) Where the landlord has failed-

(a) in a material regard; and

(b) as at the date specified under subsection (1A) of that section,

to comply with an order to which this subsection applies, the tenant may apply to the Land Court for an order under subsection (3) below.

(3) An order under this subsection may (either or both)-

(a) authorise the tenant to carry out such work as the landlord would have to have carried out for the landlord to comply with the order to which subsection (2) above applies; and

(b) authorise the tenant to withhold payment of the rent payable to the landlord in respect of the holding on the condition that the tenant shall consign to the Land Court the amount otherwise so payable.

(4) The Land Court may, on the application of the tenant, from time to time release to the tenant any of the amount so consigned towards or in satisfaction of any reasonable costs incurred or to be incurred by the tenant for the purposes of or in connection with the carrying out of such work as is mentioned in paragraph (a) of subsection (3) above.

(5) The Land Court, on the application of the landlord and having regard to-

(a) whether any work mentioned in paragraph (a) of subsection (3) above remains to be carried out; and

(b) any costs mentioned in subsection (4) above,

may terminate the order made under subsection (3) above if the Court consider that it would be not be appropriate for the order to remain in force.

(6) Where the Land Court terminate the order made under subsection (3) above, the Court shall order such division between the landlord and tenant of the amount (or, where any of the amount has been released to the tenant, any remaining amount) consigned under subsection (3)(b) above as the Court consider to be equitable.

(7) Any work carried out and authorised under subsection (3)(a) above shall be treated as having been carried out at the landlord's expense in so far as the costs of the work have been or are to be satisfied by the release to the tenant of any amount consigned under subsection (3)(b) above.

(8) Any right of the landlord-

(a) to irritate the lease on the grounds of non-payment of rent; or

(b) under section 20 or 22(1)(d) of this Act in relation to non-payment of rent,

shall be unenforceable if the non-payment is in consequence of an authorisation under subsection (3)(b) above to withhold rent.

(9) Any term of the lease or of any agreement between the landlord and tenant that purports to deprive the tenant of any right conferred by virtue of this section shall, in so far as it so purports, be null and void.".>

Section 54A

Ross Finnie

Supported by: Allan Wilson

102 In section 54A, page 39, line 15, at end insert-

<(2) Where there is a term in a lease of an agricultural holding which purports to require the tenant to reside on the holding, there shall, in place of that term, be deemed to be incorporated in the lease an undertaking by the tenant that he will, if he does not reside on the holding, ensure that a person who has the skills and experience necessary to farm the holding in accordance with the rules of good husbandry resides on the holding.".>

Section 54B

Ross Finnie

Supported by: Allan Wilson

103 In section 54B, page 39, line 20, after <tenant> insert <to any of the persons who would be entitled to succeed to his estate on intestacy by virtue of the Succession (Scotland) Act 1964 (c.41)>

Ross Finnie

Supported by: Allan Wilson

104 In section 54B, page 39, line 28, leave out <as to whether> and insert <that>

Ross Finnie

Supported by: Allan Wilson

105 In section 54B, page 40, line 8, leave out from <lease> to <shall> in line 10 and insert <term of a lease or of an agreement between the landlord and tenant which purports to provide that the lease of an agricultural holding may not be assigned under this section shall, in so far as it so purports,>

Ross Finnie

Supported by: Allan Wilson

106 In section 54B, page 40, leave out lines 11 and 12

Section 57

Ross Finnie

Supported by: Allan Wilson

107 In section 57, page 41, line 28, leave out <subsection (2A)> and insert <subsections (2A) and (2B)>

Ross Finnie

Supported by: Allan Wilson

108 In section 57, page 41, line 37, at end insert-

<(2B) For the purposes of this Act, such use of the land or part of the land, or such change to the land, for a purpose that is not an agricultural purpose as has been permitted under section 35 or 35A of the Agricultural Holdings (Scotland) Act 2003 (asp 00) is to be treated as being in accordance with the rules of good husbandry.".>

Section 58

Ross Finnie

Supported by: Allan Wilson

109 In section 58, page 42, line 30, leave out <is deemed to continue> and insert <continues>

Ross Finnie

Supported by: Allan Wilson

110 In section 58, page 42, line 31, leave out <is deemed to become> and insert <becomes>

Section 58A

Ross Finnie

Supported by: Allan Wilson

111 In section 58A, page 43, line 37, leave out subsections (1) to (9) and insert-

<(1) Subsections (2) and (3) apply to a 1991 Act tenancy where the lease constituting the tenancy is entered into before the coming into force of this section and-

(a) the tenant is a limited partnership; and

(b) any limited partner is-

(i) the landlord or an associate of the landlord; or

(ii) a partnership or a company in which the landlord has a relevant interest.

(2) Where this subsection applies, any general partner may exercise or enforce any right of a tenant conferred by virtue of Part 2 of this Act as if the partner were the tenant in the partner's own right unless the conditions mentioned in subsection (5) are met.

(3) Where this subsection applies and the tenancy purports to be terminated as a consequence of-

(a) the dissolution of the partnership by notice served on or after 16th September 2002 by a limited partner mentioned in subsection (1)(b);

(b) the renunciation of the tenancy on or after that date by such a partner; or

(c) a breach of the tenancy on or after that date by such a partner,

subsection (6) applies subject to subsection (4).

(4) Subsection (6) does not apply if-

(a) the conditions mentioned in subsection (5) are met; or

(b) the Land Court makes an order under subsection (8).

(5) For the purposes of subsections (2) and (4)(a), the conditions are-

(a) that-

(i) a (or the) notice of dissolution of the partnership has been (or was) served before 4th February 2003 by a limited partner mentioned in subsection (1)(b); and

(ii) the partnership has been dissolved in accordance with the notice; and

(b) that the land comprised in the lease-

(i) has been transferred or let;

(ii) under missives concluded before 7th March 2003, is to be transferred; or

(iii) under a lease entered into before that date, is to be let,

to any person.

(6) Where this subsection applies, notwithstanding the purported termination of the tenancy-

(a) the tenancy continues to have effect; and

(b) any general partner becomes the tenant (or a joint tenant) under the tenancy in the partner's own right,

if the general partner gives notice to the landlord within 28 days of the purported termination of the tenancy or within 28 days of the coming into force of this section (whichever is the later) stating that the partner intends to become the tenant (or a joint tenant) under the tenancy in the partner's own right.

(7) Where-

(a) a tenancy continues to have effect by virtue of subsection (6); and

(b) the-

(i) notice mentioned in paragraph (a) of subsection (3) was served before the relevant date; or

(ii) thing mentioned in paragraph (b) or (c) of that subsection occurred before that date,

the landlord may, within the relevant period, apply to the Land Court for an order under subsection (8).

(8) An order under this subsection-

(a) is an order that subsection (6) does not apply; and

(b) has effect as if that subsection never applied.

(8A) The Land Court is to make such an order if (but only if) it is satisfied that-

(a) the-

(i) notice mentioned in paragraph (a) of subsection (3) was served otherwise than for the purposes of depriving any general partner of any right deriving from this section; or

(ii) thing mentioned in paragraph (b) or (c) of that subsection occurred otherwise than for that purpose; and

(b) it is reasonable to make the order.

(8B) Where-

(a) a tenancy continues to have effect by virtue of subsection (6); and

(b) the-

(i) notice mentioned in paragraph (a) of subsection (3) was served on or after the relevant date; or

(ii) thing mentioned in paragraph (b) or (c) of that subsection occurred on or after that date,

section (Termination of tenancy continued under section 58A) applies.

(9) For the purposes of-

(a) subsections (7) and (8B), the relevant date is such date as the Scottish Ministers may by order specify; and

(b) subsection (7), the relevant period is the period from the relevant date to such date as they may so specify.>

Ross Finnie

Supported by: Allan Wilson

112 In section 58A, page 44, line 27, leave out from <; or> to <specify> in line 28

After section 58A

Ross Finnie

Supported by: Allan Wilson

113 After section 58A, insert-

<Termination of tenancy continued under section 58A

(1) Where this section applies, subsections (1) to (3) and (5) of section 21 (notice to quit and notice of intention to quit) of the 1991 Act do not apply in relation to the bringing of the tenancy to an end by the landlord.

(2) Subsections (4), (6) and (7) of that section apply in relation to subsections (3) to (5) as they apply in relation to subsections (1) to (3) and (5) of that section.

(3) The tenancy may be brought to an end by the landlord if the landlord gives a notice under this subsection to the tenant.

(4) Subject to subsection (7), a notice under subsection (3) must-

(a) be in writing and state that the tenant shall quit the land on the expiry of the stipulated endurance of the lease constituting the tenancy (or, where the lease has continued in force by tacit relocation, on the expiry of a period of continuation); and

(b) be given not less than one year nor more than two years before the expiry of the stipulated endurance of the lease (or expiry of the period of continuation), provided that not less than 90 days have elapsed from the date on which the intimation mentioned in subsection (5) is given.

(5) Subject to subsection (7), a notice under subsection (3) is of no effect unless the landlord has given written intimation of the landlord's intention to terminate the tenancy to the tenant not less than two years nor more than three years before the expiry of the stipulated endurance of the lease (or expiry of the period of continuation).

(6) The landlord may apply to the Land Court for an order under subsection (7).

(7) An order under this subsection is an order that, instead of the periods of time mentioned in subsections (4) and (5), such shorter periods as the Land Court may specify are to apply.

(8) The Land Court is to make such an order if (but only if) it is satisfied that-

(a) service of the notice mentioned in paragraph (a) of subsection (3) of section 58A, or the thing mentioned in paragraph (b) or (c) of that subsection, occurred otherwise than for the purposes of depriving the tenant (being then a general partner) of any right deriving from section 58A; and

(b) it is reasonable to make the order.>

Ross Finnie

Supported by: Allan Wilson

114 After section 58A, insert-

<Application of right to buy provisions

The Scottish Ministers may by regulations-

(a) provide that Part 2, in its application in relation to-

(i) partnerships who are tenants; and

(ii) such partners of partnerships as may exercise or enforce any right of tenants conferred by that Part,

has effect with or subject to such modifications as the regulations may specify; and

(b) make such further provision in relation to such partnerships and partners as they consider necessary or expedient for the purposes of that Part.>

Section 59

Ross Finnie

Supported by: Allan Wilson

115 In section 59, page 45, line 8, leave out <matter> and insert <of the matters>

Ross Finnie

Supported by: Allan Wilson

116 In section 59, page 45, line 15, after <on> insert <or after>

Ross Finnie

Supported by: Allan Wilson

117 In section 59, page 45, line 24, at end insert-

<( ) Such matters include, in particular (and without prejudice to the generality of subsection (2) above), any question or difference between the landlord and tenant arising in relation to Part 2 of the Agricultural Holdings (Scotland) Act 2003 (asp 00) except any question or difference of fact relating to the determination of the price payable by the tenant for the purposes of that Part of that Act.>

Ross Finnie

Supported by: Allan Wilson

118 In section 59, page 45, line 25, at end insert-

<( ) who is entitled to succeed to the estate of a deceased person on intestacy by virtue of the Succession (Scotland) Act 1964 (c.41);

Ross Finnie

Supported by: Allan Wilson

119 In section 59, page 45, line 31, at end insert-

<( ) The Land Court shall also have jurisdiction to hear and determine any question or difference, between the tenant and any person with whom he has in pursuance of section 10A(1) of this Act entered into a contract assigning his interest under the lease, which arises out of or in connection with the assignation.>

Ross Finnie

Supported by: Allan Wilson

120 In section 59, page 45, line 32, leave out from <it> to <tenant> in line 33 and insert <the Court under this Act may be made by either party>

Ross Finnie

Supported by: Allan Wilson

121 In section 59, page 45, line 33, at end insert-

<( ) In the application of this section to any question or difference arising in relation to Part 2 of the Agricultural Holdings (Scotland) Act 2003 (asp 00), "landlord" shall be construed as including a creditor in a standard security with a right to sell land (that expression being construed by reference to that Part of that Act) which comprises or forms part of an agricultural holding.

( ) Any reference in this section to a landlord or tenant of an agricultural holding shall be construed as including a person who was formerly the landlord or tenant thereof.>

Section 61

Ross Finnie

Supported by: Allan Wilson

122 In section 61, page 47, line 11, leave out <matter> and insert <of the matters>

Ross Finnie

Supported by: Allan Wilson

123 In section 61, page 47, line 21, after <on> insert <or after>

Ross Finnie

Supported by: Allan Wilson

124 In section 61, page 47, line 29, at end insert-

<( ) who is entitled to succeed to the estate of a deceased person on intestacy by virtue of the Succession (Scotland) Act 1964 (c.41);

Ross Finnie

Supported by: Allan Wilson

125 In section 61, page 47, line 34, at end insert-

<( ) The Land Court also has jurisdiction to hear and determine any question or difference, between the tenant under a limited duration tenancy and any person with whom the tenant has in pursuance of section 7(1) entered into a contract assigning the tenant's interest under the lease constituting the tenancy, which arises out of or in connection with the assignation.>

Ross Finnie

Supported by: Allan Wilson

126 In section 61, page 47, line 35, leave out from <it> to <tenant> in line 36 and insert <the Court by virtue of this Act may be made by either party>

Ross Finnie

Supported by: Allan Wilson

127 In section 61, page 47, line 36, at end insert-

<( ) Any reference in this section to a landlord or tenant of a tenancy is to be construed as including a person who was formerly the landlord or tenant of the tenancy.>

Section 68

Ross Finnie

Supported by: Allan Wilson

128 In section 68, page 50, line 21, at end insert-

<(1A) Where the Land Court makes an order under subsection (1)(b) in relation to a failure of the landlord to fulfil any obligation the landlord has towards the tenant in respect of fixed equipment, the Court-

(a) must specify the date by which the landlord is to comply with the order; and

(b) may, following an application by the landlord, specify a later date (in place of the date specified under paragraph (a)) by which the landlord is to comply with the order if it is satisfied that the landlord intends to comply with the order but reasonably requires more time to do so.>

Section 75

Ross Finnie

Supported by: Allan Wilson

129 In section 75, page 52, line 36, at end insert <or (Application of right to buy provisions)>

Section 76

Ross Finnie

Supported by: Allan Wilson

130 In section 76, page 53, line 9, at end insert-

<( ) An order under subsection (1) may, in particular, amend provisions of any enactment which apply to 1991 Act tenancies or land held under 1991 Act tenancies so as to apply them to short limited duration tenancies and limited duration tenancies or land held under such tenancies.>

Section 78

Ross Finnie

Supported by: Allan Wilson

131 In section 78, page 53, line 18, at end insert-

<"fixed equipment" is to be construed by reference to section 85 of the 1991 Act;>

Ross Finnie

Supported by: Allan Wilson

132 In section 78, page 53, line 20, leave out <from> and insert <under a lease constituting>

Ross Finnie

Supported by: Allan Wilson

133 In section 78, page 53, line 28, leave out <any> and insert <a>

Schedule

Ross Finnie

Supported by: Allan Wilson

134 In the schedule, page 59, line 38, at end insert-

<In section 21 (notice to quit and notice of intention to quit), in subsection (1), after the word "below" there is inserted "and to sections 2 and (Termination of tenancy continued under section 58A) of the Agricultural Holdings (Scotland) Act 2003 (asp 00)".>

Ross Finnie

Supported by: Allan Wilson

135 In the schedule, page 60, line 29, at end insert-

<In section 37(1) (consent necessary for some improvements), the words "as to compensation or otherwise" are repealed.>

Ross Finnie

Supported by: Allan Wilson

136 In the schedule, page 62, line 36, at end insert-

<In section 85 (interpretation), at the appropriate place there is inserted-

""enactment" includes an Act of the Scottish Parliament or an instrument made under an Act of the Scottish Parliament;".

In section 86 (construction of certain references), for the words "within the meaning of this Act" there is substituted "to which this Act applies".>

 

Mental Health (Care and Treatment) (Scotland) Bill - Stage 3

Section 6

Malcolm Chisholm

1 In section 6, page 5, line 22, leave out <section 9(2) of this Act> and insert <subsection (1A) below>

Malcolm Chisholm

2 In section 6, page 5, line 25, at end insert-

<(1A) Those circumstances are-

(a) the circumstances mentioned in section 9(2)(a), (c), (d) or (e) of this Act;

(b) that-

(i) the patient is detained in hospital and the detention is authorised by virtue of this Act or the 1995 Act; and

(ii) there may be some impropriety in relation to that detention.>

Malcolm Chisholm

3 In section 6, page 5, line 27, at end insert-

<( ) the Public Guardian;>

Section 7

Malcolm Chisholm

4 In section 7, page 6, line 7, at end insert <any person mentioned in subsection (2) below on any matter arising out of this Act which has been referred to the Commission, with its agreement, by that person.

(2) Those persons are>

Malcolm Chisholm

5 In section 7, page 6, leave out lines 14 to 16

Section 8

Malcolm Chisholm

6 In section 8, page 6, leave out lines 31 to 37 and insert <a person mentioned in subsection (2) of section 7 of this Act, publish advice which it gives under subsection (1) of that section to that person.>

Section 9

Malcolm Chisholm

7 In section 9, page 7, line 13, at end insert-

<( ) an interim compulsory treatment order;>

Section 10

Malcolm Chisholm

8 In section 10, page 7, line 32, at end insert <; and

( ) may pay to a person appointed by it under paragraph (a) above such-

(i) remuneration; and

(ii) expenses,

as it may, with the consent of the Scottish Ministers, determine.>

Section 11

Malcolm Chisholm

9 In section 11, page 8, line 33, at end insert-

<( ) an interim compulsory treatment order;>

Section 197

Malcolm Chisholm

10 In section 197, page 191, line 10, after <hospital> insert <by virtue of this Act or the 1995 Act>

Section 231

Malcolm Chisholm

11 In section 231, page 221, line 30, after <sections> insert <224,>

Malcolm Chisholm

12 In section 231, page 221, line 30, after <225> insert <, 228A>

Schedule 3

Malcolm Chisholm

13 In schedule 3, page 238, leave out lines 28 and 29

 

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