Scottish Law - Field with new house used by farmer

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MagicMelon

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We've put an offer in on a house which comes with a 2 acre field. The field is NOT fenced along one side so it basically appears currently as part of a much larger field. I understand a land owner owns all land round about the house (expect the 2 acres) and he rents it out. The tenant has farmed the 2 acres as part of the rest of the field. So basically it currently has oil seed rape growing in it. We've built into our offer that it is assumed there is NO informal or formal tenancy agreement in place for the 2 acres therefore any crops on it become ours.

But my annoyance really is that, this could easily put us off on the wrong foot with the tenant which isn't ideal... It bugs me though that the 2 acres was probably grass at one point and this guy has ploughed it all up to plant his crop! So it'll be at OUR expense to basically destroy his crops and put it all back to grass again which will cost us money and time (since it'll take a year for the grass to become established enough to put animals on it).

Can anyone advise what would be best in this situation? I had thought we could suggest to the tenant that he could have his crop but only if he puts it back to grass and fences it afterwards, but thats not something I can put in the offer - it would be something we'd have to agree afterwards to not guaranteed!
 
Would it not kill you to wait until his crop is ready to harvest and then put your field to rights?
The goodwill there might see that farmer help you put the field back (not that he has any obligation to!) and not alienate your new neighbours.
 
joeanne said:
Would it not kill you to wait until his crop is ready to harvest and then put your field to rights?
The goodwill there might see that farmer help you put the field back (not that he has any obligation to!) and not alienate your new neighbours.
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But that's 4 more months (Sep I think is harvest time up here) to wait before we can put it to grass and get my own animals on it. I dislike going by "goodwill", I could let him do that and then he does nothing in return when at the end of the day he should never have farmed this piece of land in the first place. He's making money out of someone else's land! I just can't imagine he'll help put it back because he's only a tenant, he doesnt own any of the land so he probably doesn't care. I assume it'd be pointless to try and discuss this with the land owner. I wouldnt care if the guy had animals on it since there's no fence (which he could have removed for all we know - the house has been empty for 2 years), but why should we have to pay to put it back to how it was.
 
I'd be more worried that the farmer who has planted the crop may have acquired some tenancy rights.......it is all too easy for that to happen, especially without a written agreement that limits the rental period to seasonal of under 364 days

I wouldnt be touching the house and land in terms of exchanging contracts unless he signs a complete disclaimer and there is a formal agreement about this years crop drawn up by expert lawyers.

As to restoring the land to grass, what does the current owner of the field plan to do about that - it really needs to be sorted between them and the person they have allowed to cultivate the land.

In respect of the crop, since the current landowner has allowed him to cultivate the crop I think its highly likely he will have some rights to it anyway, so not sure thats so much of a bargaining tool. Just concentrate on getting possession!

Fencing in theory in Scotland is likely to be a split cost between the two landowners (unlike in England where one tends to own a boundary).
 
Well if you are just in the process of buying it's up to you to put the field/fencing in order as to how you want it in the future. IMO you can't expect someone else to do it to suit you (you wouldn't expect seller to re-decorate, fit new kitchen etc to your specification) so if you are not happy with the property as it is, don't buy it. That's my opinion anyway. Don't know the legalities of the crop though but I wouldn't cause bad feeling over it as you never know when you might need your neighbour's help.
 
Discuss this with the estate agent!! if the house and land around it is for sale there will be bounderies. If you put in an offer for house and land you must know what you are bidding for.
Your solicitor will be able to advise you and should get this all clarrified for you before putting in your offer.
I would expect that if an offer for house and land is excepted then the buyer will then own the land regardless of what or who is using it now.
The seller should be the one to approach the renter and make arrangements.
The seller should put up the fence and then it would become a 'march fence' meaning that you and the land owner on the other side have joint responsibility of it in the future.
 
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Surely you must have known this when you put in your offer? I would have a word with the owner of the land, not the tenant, and find out exactly what you will be getting when you take over ownership. The tenant will have to take up the question of compensation with his Landlord, not you. If his tenancy does not cover the land you are buying the current Landlord must make that absolutely clear to him.
 
It is likely that the tenant has been farming this part of the field for a while and it may be that the landowner has now put this plot with the house to make it more saleable. Your gripe is with the landowner, i would expect him to erect a boundary for his and your clarity. As to the crop, if you have only now put an offer in it could be a couple of months before you get possession, by then there will be a stanking great crop of OSR, you really wouldn't want to be trying to kill and dispose of it. I would let the tenant take his crop, you will be then left with a clean field which will be much quicker and cheaper to put a grass ley into. Keep on the right side of the tenant and you may be able to negotiate with him to plant your grass. I wouldn't be too hard on the tenant, he has obviously used rightly or wrongly the 2 acres but it would seem with the landowners consent. Negotiate with the landowner you may find keeping in with the tenant may come in useful for topping, trimming etc.
 
lachlanandmarcus - I agree. I know there's a time period on which if a person is on it long enough, the tenant gets rights to it which is another worry! I didnt realise the fencing cost could be split between us, thats good to know though so I wont feel too cheeky in asking the landowner if we're succesful buyers then!

flying solo - Because we like the house obviously... I'm hoping the land shouldnt become an issue hence I want to know where we stand in advance.

horserugsnot4u - We are not expecting stuff for free sort of thing. I'd only expect something in return from the tenant farmer if we left the field for 4 more months so he could take his crop off it (which he SHOULDN'T have planted in the first place). I dont see why, due to the hassle and letting him make money off what would effectively be our land that he shouldn't give something back in return?

lost - We do have a copy showing the boundaries, thats no issue. And yes, it should become ours as soon as we buy but I dont fancy just ploughing up all the crops currently there and sticking in a fence, think that'd upset the tenant farmer!

Tammytoo - We do not know if there has been any tenancy agreement put in place. The sellers solicitor has apparently written to the landowner and the tenant to ask them but has never recieved any reply from either. Hence, we have written it into our offer that we assume there are NO informal or formal agreements in place, that is then up to their side to find out further and confirm this to us.

jrp204 -The landowner doesn't own the house. The house and the 2 acres is owned by one lot, then the surrounding land is owned by a landowner which I understand is leased out to another guy. Confusing! Time-wise, actually we're looking at one month (6 weeks is the norm here, but can be done in 1 month which is the date of entry we've set as house is empty and ties in with our own house sale). Yeah, I would think the tenant probably doesnt even know the 2 acres isnt part of what he's leasing since it is just one big field at the moment. I doubt the landowner even knows, he owns a huge amount of acreage.
 
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MagicMelon said:
We are not expecting stuff for free sort of thing. I'd only expect something in return from the tenant farmer if we left the field for 4 more months so he could take his crop off it (which he SHOULDN'T have planted in the first place). I dont see why, due to the hassle and letting him make money off what would effectively be our land that he shouldn't give something back in return?


jrp204 -The landowner doesn't own the house. The house and the 2 acres is owned by one lot, then the surrounding land is owned by a landowner which I understand is leased out to another guy. Confusing! Time-wise, actually we're looking at one month (6 weeks is the norm here, but can be done in 1 month which is the date of entry we've set as house is empty and ties in with our own house sale). Yeah, I would think the tenant probably doesnt even know the 2 acres isnt part of what he's leasing since it is just one big field at the moment. I doubt the landowner even knows, he owns a huge amount of acreage.
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Just wondering how you know for sure the farmer shouldn't have planted these 2 acres? You said yourself you are unsure if any formal / informal agreements are in place.

Agree with what others have said, you need to get the agents to deal / get clarification on this issue.
 
But that's 4 more months (Sep I think is harvest time up here) to wait before we can put it to grass and get my own animals on it.
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Either way you won't be able to put horses on it for at least a year or so - so personally I'd wait for the crop to harvest, then crack on with laying it back to pasture.
 
Seems like there are issues between seller and tenant and also between seller and yourself to be resolved before parting with any cash. Obviously the legal professionals should have all the answers to reach a satisfactory conclusion so best to take their advice. My guess is there will have to be compromise on all sides but if there has to be one, let the seller be 'the villain' as you are going to have to live alongside your new neighbour. Might drag on a while too, so crop might be long gone before you are in a position to be able to do anything anyway.
Just noted additional landowner involved, so further complications between him, tenant and seller.
 
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lost - We do have a copy showing the boundaries, thats no issue. And yes, it should become ours as soon as we buy but I dont fancy just ploughing up all the crops currently there and sticking in a fence, think that'd upset the tenant farmer

The seller should put in the fence or at least him and the other land owner. As I said before, it should be the seller who deals with the tenant and not you. Failing that at least speak to the tenant and hopefully come to an amicable outcome. The tenant farmer must be aware of the situation and surely has spoken to the land owner re his crop, as it will be valuable to him. Still stand by the fact that your solicitor should be sorting the legal stuff which should include the wrangle over the crop and the land.
Hope you all reach a solution that suits all.
 
When my OH bought a 10 acre field that was being sold as 2 separate lots of 5 acres it was being sold with no fence in between and it would have been upto the buyers to fence down the middle. Luckily OH bough the whole lot so a fence was not needed. However they recently also bought a field where there was a tenant who had planted rape. OH Had bought the land but not the crops and had to let the farmer harvest his crops. However the farmer did pay for the rent of the field whilst he was waiting for his crops to grow
 
Forever_broke said:
] However they recently also bought a field where there was a tenant who had planted rape. OH Had bought the land but not the crops and had to let the farmer harvest his crops. However the farmer did pay for the rent of the field whilst he was waiting for his crops to grow
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This is the norm around here, the crop is harvested by the outgoing user unless there is something built into the agreement about the harvest being taken by the incoming party.
 
If you wish to put horses on this land you will need to obtain planning permission for change of use from agricultural to equestrian!
In any event you will probably need to put drainage in the field, a water supply, then use total kill, plough the ground up, cultivate the field, seed for grass, roll it and wait for the grass to become established (2 years without anything on it is best - cut and collect it to get a dense root structure) and then install the water troughs with a concrete base for them (use plastic water troughs rather than metal ones as if a horse kicks a metal one they can fracture their legs) and fence it.
 
I really dont get your thinking. The land is as it is, why is no concern of yours. Your only concern is taking possession and once taken it is up to you to do with the land as you wish.
Your concern should be the farmer who has planted on it having any rights and your solicitor who is dealing with the purchase should deal with this and advise you.
 
It DOES NOT take 2 years from sowing a grass field to put horses on it.
I am in this area and at the right time of year it can happen in 6 months.

How do you know the tenent SHOULDNT have planted the crop? Just incase you bought the field?

I bought a place up here years ago with a lovely field of haylage just ready to be cut. The day after we bought it, the farmer came in and cut it for his cows.
It was the LAND we bought, not the grass.
Plus the farmer had spent the money on fertilising it, rolling it etc.

If you want to start on a bad footing with your neighbours, crack on!

however, folk up here are funny at the best of times, my advice would be to make friends, ask if the tenant maybe has another grass field (they are called parks up here) you can use in the meantime!

Good luck with the purchase
 
Scottish law is a lot different to english in relation to purchasing/rights/change of use.

Firstly, has your offer gone in? if so has it been accepted? If your offer has gone in, once you get to the qualified acceptance stage, you need to get the clarity of what is happening with the land before you conclude. Your solicitor should be liasing with the sellars, re this asap. I'm going to make a couple of presumptions here so apolgies if they are incorrect.

1. person who has planted OSR in the field adjacent to your house and has included the paddock of your house also is renting from the seller of your house. As such upon the conclusion of missives and entry date being set- his lease becomes null and void (for the patch of land in question) form the date of entry /payment of funds. as it is with the former owner not the current. it is usual for (in Scots law) any items left within the boundaries of the property to come under the sole ownership of the purchaser from this time (it's in one of the clauses in the offer standard bit) therefore you own the OSR. obviously there;s going to be cost to you in arranging removal of this/replanting and fencing. which you are able to claim back reasonable costs from from the seller (been there done that:) )

You could ask for a deduction to be made towards the cost of erecting boundary fence at the QA stage. and perhaps get around the table with the seller/tennant farmer and try and sort a solution, ie he will harvest and plough/plant grass - in return you will erect fence in leiu of rent or something.

2. person who is using the land is renting from another land owner not seller. therefore he has NO legal right to the goods on the property however, you are entitled to invoice for rental payment and cost of returning land to grass and erection of fence (as he could have taken it down - an assumption your solicitor will make). he is in effect tresspassing with damage to your property (there is a law about this in scotland but it's not the same as the tresspass law downsouth, and very rarely enforced via the police, it's mainly solicitors obo landowners that do it).

You will not need to apply for a change of use on the land - not required up here.

My advice would be to phone your solicitor, now, ask them to chase the other party for answers and set a deadline. (solicitors need to be bullied it's the only way to get them to do anything up here).

Good luck
 
Thanks all.

x-di-x - Thanks very much for advising so well. That makes me feel a bit happier about it. Yes, solicitor is of course involved. Our offer has a few hours ago, been verbally accepted and our solicitor will certainly be looking into the land issue. I just wanted a rough idea now as to my rights / tenants rights etc. generally. I actually work in a solicitors office but am on holiday at the moment ;)

Meantime, the issue seems to be deepening as a friend has done some digging by chatting to neighbouring farmers etc. and there was mention that the landowner of the rest of the field (ie. that the 2 acres goes into) is claiming it is HIS, therefore there is a current dispute going on! I'm hoping this isnt the case as obviously the selling agent would then be illegally advertising land which does not belong to the house. I dont think this will be a simple purchase...!
 
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guido16 said:
If you want to start on a bad footing with your neighbours, crack on!

however, folk up here are funny at the best of times, my advice would be to make friends, ask if the tenant maybe has another grass field (they are called parks up here) you can use in the meantime!
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^^^This...

These people whom you propose to live among have been getting on with their lives prior to the property and land going on the market. I'm pretty sure there will be conditions in place to put all to rights when the deeds change hands. Talk to your solicitor...

The crop, having been planted, will have to be harvested, or the tenant farmer will need compensation.

If you approach all concerned as a reasonable person, you may be happy there in the future...if you appear to be a colonialist, territorial type you will be treated as such.
 
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