What does the Court do?
The Court’s job is to assist in resolving disputes relating to agricultural tenancies, including matters relating to crofts. You will find examples of the types of dispute dealt with by the Court on the Jurisdiction page, and some further details about agricultural tenancies and crofts at the end of this page.
In short, the Court
- receives applications from a party (or parties) involved in a dispute
- issues orders guiding and controlling the proceedings
- conducts hearings to take evidence and hear the arguments of the parties to the dispute
- gives a written decision on the case
- reports decisions in the Scottish Land Court Reports and other publications.
What does the Court not do?
The Court has no power to deal with wider questions such as disputes over ownership of land, or disputes between owners of adjoining land as to boundaries or rights over each other’s land. (It does have power to deal with disputes between Crofters on these matters.)
The Court cannot deal with any question under the Crofters (Scotland) Act 1993 regarding succession, the apportionment of common grazings (that is, the process by which a crofter with a share in the common grazings obtains an area of the grazings for his exclusive use), or decrofting an area of croft land (that is, the process by which an area of vacant croft land is removed from the scope of the 1993 Act). (See the Crofting Commission.)
How does the Court resolve disputes?
The Court has a Chairman who has the status of a judge of the Court of Session. The Court is therefore well able to deal with difficult cases and disputes involving questions of law. However, the main work of the Court is carried out by its other three Members. They are not lawyers. These members are chosen for their agricultural expertise, and their ability to deal with cases in a proper judicial manner. They may be regarded, in a sense, as highly skilled arbiters.
When a case comes into the Court, the Court decides if it can properly be dealt with by an expert Member, or whether it ought to be determined by the Full Court. If it appears to be a case that can be dealt with by a single Member, the Court nominates one of the Members to sit with a legal assessor — who is a qualified lawyer — to deal with the case. Most disputes are dealt with in this way.
If you think that the Member has got the decision wrong in your case, you have an easy route of appeal to the Full Court. The appeal will be heard by the Chairman, sitting with the other two Members. The procedure at the appeal will depend on the nature of your challenge to the first decision.
Court staff, with the assistance of Court Members where necessary, give careful attention to the best way of dealing with all disputes that come into the Court. We try to avoid undue formality and expense. Where possible, we dispose of matters in writing on the basis of written submisions. The Members will often inspect the land in question to be sure that they have a proper understanding of the nature of the dispute.
By tradition, the Court combines a proper judicial approach to resolving disputes with an ease of access to litigants. In other words, it is fairly formal when necessary in the interests of justice and fairness, but relatively informal wherever possible. It is formal at times because when important decisions are being taken, it is right that parties should know where they stand.
How do I use the Court?
You begin by making a written application using one of a number of forms designed to help parties set out clearly the nature of the case and dispute. Once your application is in, the Court staff will work out the appropriate procedure for your case and issue written instructions as to what must be done to progress it properly. You will find more information in the Using the Court section of this site.
Although the Court has a formal set of rules for the conduct of its business, parties to a dispute can be guided by the Court. The need for careful attention to the rules arises when there are specialities of procedure to be followed; for example, in relation to expenses, appeals or rehearings.
When should I use the Court?
All sorts of disputes can arise between landlord and tenant. Many are best resolved by seeking the assistance of a third party. Arbitration is similar to litigation but may sometimes seem less formal. The term “Alternative Dispute Resolution” (ADR) is often used to describe alternatives to litigation and arbitration. It uses skilled communicators to help parties reach their own agreements. When exploring options, however, you should be aware that
- for many farm tenancy disputes, it is possible to opt for arbitration rather than submitting an application to the Land Court in terms of the Agricultural Holdings (Scotland) Acts 1991 or 2003;
- in crofting matters, the status given to croft land is protected by legislation, and agreements made between individuals may not be binding without the authority of the Court, or where appropriate, the Crofting Commission.
There may be changes to the law that will make it easier for parties to go to arbitration, and also make it easier for them to come to the Court when appropriate. It is up to you and your legal advisers to decide whether your case will best be dealt with by arbitration or by the Court. The Court does have certain advantages:
- It has an established system for dealing with disputes.
- It has staff who are expert in applying the best procedures for clarifying what is really in dispute and what sort of material should be relied upon to resolve it.
- Land Court Members are skilled and experienced in the fair resolution of disputes. It is their job to see that parties are dealt with equally and fairly in the way they are able to present their cases.
- The Members are well versed in the law relating to agricultural tenancies. They have, at all times, the assistance of experienced solicitors.
- Court fees are comparatively modest, and can be assessed clearly in advance.
You should consider these points with your legal advisers when determining whether to bring your particular case to the Court, or to seek alternative dispute resolution. The Court cannot give guidance or recommendations about ADR, but we are aware that several bodies offer such services. These include, but are not limited to,
- the Law Society of Scotland
- the Royal Institute of Chartered Surveyors of Scotland
- the Scottish Agricultural Arbiters Association
- certain specialist companies.
What is the basis of the Court’s powers?
The Court’s present powers are derived mainly from the Scottish Land Court Act 1993. However the Court originally came into being in 1912, and its powers and jurisdictions have been modified by various Acts of Parliament over the years since then. You will find a more detailed account on the Historical background page.
How do I know if the Court can help me?
We hope the information on this web site will help you to decide whether your particular case would best be dealt with by being brought before the Scottish Land Court. If you are still unsure, then please contact the Court office. We will look at your circumstances, and tell you if we can help. If we are unable to help we will explain why that is so, and, wherever possible, we will let you know where you might find help.
Some comments on tenancies and crofts
In relation to the tenancy of farms in Scotland which are not crofts, the powers of the Court are controlled by the Agricultural Holdings (Scotland) Act 1991 as amended by the Agricultural Holdings (Scotland) Act 2003. The Act of 1991 provides that in respect of the more important matters arising by way of dispute between landlords and tenants such as control of the operation of Notices to Quit, it is the Land Court that has been given power to make the final decision. The Acts also confer a wide jurisdiction and wide powers on the Land Court to determine basically any dispute between a landlord and a tenant.
Although people use the word croft in a variety of popular senses, in its legal sense it relates only to units which are or have been small tenanted farms in the crofting counties. Broadly speaking, that is the area of Scotland lying north and west of a line between Nairn and Campbeltown (though there are a few crofting areas immediately to the east of that line). The Crofting Commission controls certain matters relating to crofting, but the Scottish Land Court has power to deal with most disputed issues arising with regard to croftland. You will find some examples on the Jurisdiction page, but you should consult the Crofters (Scotland) Act 1993 for more detail.Copyright 2002-2013, The Scottish Land Court