Write it down!

The Tenant Farming Commissioner, Bob McIntosh, looks at importance of making a written record of discussions held and agreements made between landlords, tenants, and their agents in his latest blog.

I come across a number of problematic tenant farming issues which have arisen because nothing was written down at the time of discussing and agreeing a particular issue. The failure to make a written record of discussions held and agreements made when landlords and tenants, or their agents, meet to discuss some aspect of the landlord/tenant relationship is a common cause of future angst.

It’s easy to see how this happens. For example: a landlord and tenant have a good relationship, they meet on the farm, the tenant asks if it’s OK if they build a shed, the landlord says that’s fine, and off they go. It might be several decades before the question of compensation for that shed becomes an issue, and by that time it’s likely that the tenant, landlord, or agents have changed and there is no collective memory of what was agreed in the past. In such circumstances, the landlord may be unwilling to accept that the shed has been properly consented, and is therefore unwilling to accept it as qualifying as a tenant’s improvement eligible for compensation. 

Similar problems can arise due to the of lack of a written record about decisions made over rent, repairs and maintenance, or indeed on any occasion when there are discussions over any aspect of the landlord/tenant relationship. It is simple to avoid problems that might arise from verbal agreements – and that is to write down what was agreed.

At any meeting about the tenancy, the parties present should agree which person will produce a brief written record of the meeting. This should summarise what has been discussed, and most importantly what has been agreed. This should be sent to the other party to see if they agree with the record and any amendment should be made and agreed. An exchange of emails is fine and both parties should keep a copy of the record that everyone has agreed and be able to refer to it in future. It’s so easy to rush off from a meeting or be distracted by the next job, particularly if no land agents or legal representatives are present. It can be useful to include someone at the meeting who is solely there to keep a record of what was agreed – it’s one less job for the landlord or tenant and more likely to get done whilst everyone remembers the discussion.

In the majority of cases there is no need for this to be a formal legal agreement; an exchange of emails will generally be enough to ensure that the wishes and intentions of both parties are recoded for posterity. However, as always, if a significant change to the responsibilities and obligations of either party is being proposed, tenants and landlords are advised to take legal advice specific to their own circumstances.

Another example of when a casual agreement can go seriously wrong is where a verbal agreement about the use of land has been made years ago between two parties, often between good friends. One friend asks to use the other’s fields and pays rent in cash. This goes on for a good number of years until the owner of the fields decides that they really would like to use those fields, and suddenly it’s all very complicated, as the other ‘friend’ decides that they would like to keep using them – and may have rights to do so. For more on this see my previous blog, ‘Can an agricultural tenancy exist without a written lease?’ To be fair, this generally comes to light on old agreements, or verbal agreements made between predecessors, and I like to think that people are now more careful about casual agreements.

Another good routine to get into is to have regular on-farm meetings between tenant and landlord – it helps to avoid any misunderstandings and can recap on discussions as well as address immediate issues. This only needs to be once a year if there is nothing pressing to discuss, but it’s a good habit to get into and can avoid trouble down the line.

If you would like to discuss how to go about improving a landlord/tenant relationship, you are welcome to give me a call to discuss on 01463 423 300, or get in touch by email at tfc@landcommission.gov.scot.