Bob McIntosh, the Tenant Farming Commissioner, has published a blog on the Scottish Land Commission website about the powers that the commissioner has to investigate alleged breaches of codes of practice.
It seemed to me that the headline was slightly misleading. It stated boldly “Tenant farmers encouraged to notify the TFC of alleged code breaches” but of course landlords and tenants have duties under the codes and either party is entitled to complain.
The commissioner’s role is to promote good relationships in the tenanted sector and he has published a number of codes of practice on various topics that can arise in the course of an agricultural tenancy.
The codes are wide ranging and cover topics such as the conduct of rent reviews, the tenant’s improvements amnesty, the maintenance of condition of tenanted agricultural holdings, the conduct of sportings and late payment of rent among others.
It was thought that given the anecdotal evidence that appeared to exist about the alleged bad behaviour of landlords’ professional agents that the commissioner would receive a torrent of complaints from tenant farmers.
However, this has proved not to be the case and in a consultation carried out by Scottish Government a couple of years ago it was found that in the majority of cases relationships were reasonably positive.
Perhaps part of the reason why complaints have been so few in number is that the Tenant Farming Commissioner has no power to sanction someone who has been found to be in breach of a code of conduct.
The real significance of being found to be in breach is the risk of public infamy because the commissioner has the power to publish his decision.
That might in itself be a strong deterrent and an encouragement to comply with the code, especially on the part of professional agents – if only to avoid being splashed on the front pages of the farming press.
However, the commissioner does hint in his recent article that part of the reason that so few complaints come forward is that tenants, in particular, are frightened of upsetting relations with their landlords and making their lives even harder than they might be at the moment.
As the commissioner points out however, if there is bad practice in existence then it will only ever be addressed if people actually complain about it. It is interesting to note that the only formal complaint that the commissioner has looked at arose from a mutual submission by a landlord and a number of tenants on the same estate.
As a result of the recent consultation, perhaps somewhat surprisingly, Scottish Government indicated that it might consider giving the Tenant Farming Commissioner power to levy financial sanctions on parties found to be in breach.
There is no sign of the government taking action about that any time soon. Parties should be careful what they wish for because landlords and their agents could equally well complain about the conduct of tenants and their agents on occasion!
The introduction of such powers would also have to include a right of appeal and so on.
This means imposing an additional layer of legal complexity and expense on the part of parties complaining that might prove to be even more of a deterrent.
The Tenant Farming Commissioner has proved to be very effective in an informal behind the scenes way in allowing parties to resolve difficulties that have arisen in their relationships and often a quiet word to one or other party to a dispute is sufficient to see things sorted out in a satisfactory way.
Hamish Lean is a partner and head of rural property at Shepherd and Wedderburn.