Waygoing claims at the end of an agricultural tenancy can often be subject to delay resulting in considerable frustration on the part of the tenant who wants to obtain a settlement of the sums due to them but who can sometimes find themselves to be “stuck” in what appears to be an overly rule bound process.
The waygoing claims will include statutory compensation for tenant’s improvements and payments that the landlord is contracted to make to the tenant on expiry of the lease, for example, unexhausted manurial values and the like.
A landlord may have waygoing claims too in the form of dilapidations to make against them outgoing tenant.
I thought that it would be useful just to run over the rules about making waygoing claims and the time limits for doing so. Whether the tenancy is a secure tenancy or a fixed duration tenancy, there is an absolute time limit of two months after the end of the tenancy to notify the other side about the nature of the claims that are being made.
If this time limit is missed, the claim is at an end.
Presuming that a notice has been served, the parties then have a period of two months within which to reach agreement about the figure to be paid.
This two-month period can be extended for a further two months on application to the department and then for a further two months after that.
However, on the expiry of the second continuation, no further continuations are possible from the department and if the claims are still unresolved, the only way that the tenant or landlord making the claim can then enforce it is to apply to the Scottish Land Court for an order determining the claim. That must be done within a month of the last extension running out.
For a tenancy ending on November 28, a notice preserving claims has to be served on the other side by the January 28 and if the claims are not agreed by the March 28 two 2 month extensions can be obtained from the department to May 28 and July 28 respectively but on expiry of the last extension on July 28, the party wishing to enforce the claim must lodge an application in the Land Court by the August 28.
Failure to meet these various deadlines will mean the end of the claim itself.
In an orderly waygoing, well ahead of the end of the tenancy the landlord and tenant will enter into a formal agreement appointing a single valuer or two valuers and an oversman to determine the waygoing claims.
On entering into a formal agreement, a date is then fixed for the valuation to be carried out and the parties are then bound by the outcome. The expense of the process is shared equally between landlord and tenant. Proceeding in this way results in a certain outcome in a timely manner.
However, it is not always possible for the parties to reach agreement in this way and it is necessary therefore for the various procedural steps that I have outlined above to be taken.
The Scottish government is currently looking at ways in which the waygoing process might be streamlined and made more efficient.
In my experience, prosecution of waygoing claims can be time consuming but as with everything else, planning well in advance and having an open dialogue with the other side about what needs to be valued and the mechanism for carrying out the valuation will pay dividends in making sure that the process is orderly and as efficient as possible.
Hamish Lean is head of rural property at Shepherd and Wedderburn
