Succession (Scotland) Act 1964

[F116 Provisions relating to leases.S

(1)This section applies to any interest, being the interest of a tenant under a lease, which is comprised in the estate of a deceased person and has accordingly vested in the deceased’s executor by virtue of section 14 of this Act; and in the following provisions of this section “interest” means an interest to which this section applies.

(2)[F2Subject to subsection (4A),] where an interest—

(a)is not the subject of a valid bequest by the deceased, or

(b)is the subject of such a bequest, but the bequest is not accepted by the legatee, or

(c)being an interest under an agricultural lease, is the subject of such a bequest, but the bequest is declared null and void in pursuance of section 16 of the Act of 1886 or [F3[F4section 12A or 12B] of the 1991 Act] [F5or becomes null and void under section 10 of the Act of 1955,]

and there is among the conditions of the lease (whether expressly or by implication) a condition prohibiting assignation of the interest, the executor shall be entitled, [F6subject to subsection (2A) of this section, to transfer the interest.]

[F7(2A)Transfer by an executor pursuant to subsection (2) of this section—

(a)F8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)of an interest under any [F9lease (other than [F10the lease of a 1991 Act tenancy or] the lease of a croft within the meaning of section 3(1) of the Crofters (Scotland) Act 1993 (c.44))] and which is not a transfer to one of the persons entitled to succeed to the deceased's intestate estate or to claim legal rights or the prior rights of a surviving spouse or civil partner out of the estate, in satisfaction of that person's entitlement or claim, shall require the consent of the landlord.]

(3)[F11Subject to subsection (4C),] if in the case of any interest—

(a)at any time the executor is satisfied that the interest cannot be disposed of according to law and so informs the landlord, or

(b)[F12subject to subsection (3A)] the interest is not so disposed of within a period of one year or such longer period as may be fixed by agreement between the landlord and the executor or, failing agreement, by the [F13relevant court on the application of] the executor—

(i)in the case of an interest under an agricultural lease which is the subject of a petition to the Land Court under section 16 of the Act of 1886 [F14, an application under section 12A of the 1991 Act or an appeal under section 12B of that Act to that court], from the date of the determination or withdrawal of the petition [F15, the application or, as the case may be, the appeal ],

[F16(ia)F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ib)F18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(ii)in any other case, from the date of death of the deceased,

either the landlord or the executor may, on giving notice in accordance with the next following subsection to the other, terminate the lease (in so far as it relates to the interest) notwithstanding any provision therein, or any enactment or rule of law, to the contrary effect.

[F19(3A)In the case of an interest in an agricultural lease which is a lease of a croft within the meaning of section 3(1) of the Crofters (Scotland) Act 1993 (c.44), the period for the purposes of subsection (3)(b) is 24 months.]

(4)The period of notice given under the last foregoing subsection shall be—

(a)in the case of an agricultural lease, such period as may be agreed, or, failing agreement, a period of not less than one year and not more than two years ending with such term of Whitsunday or Martinmas as may be specified in the notice; and

(b)in the case of any other lease, a period of six months:

[F20(4A)Where an interest, being an interest under a lease constituting a short limited duration tenancy [F21, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy] —

(a)is not the subject of a valid bequest by the deceased; or

(b)is the subject of such a bequest, but the bequest is not accepted by the legatee; or

(c)is the subject of such a bequest, but the bequest is declared null and void by virtue of section 21 of the 2003 Act,

and there is among the conditions of the lease (whether expressly or by implication) a condition prohibiting assignation of the interest, the executor shall be entitled, notwithstanding that condition, to transfer the interest to a person to whom subsection (4B) below applies; and the executor shall be entitled so to transfer the interest without the consent of the landlord.

(4B)This subsection applies to—

(a)any one of the persons entitled to succeed to the deceased’s intestate estate, or to claim legal rights or the prior rights of a surviving spouse out of the estate, in or towards satisfaction of that person’s entitlement or claim; or

(b)any other person.

(4C)In the case of any interest under a lease constituting a short limited duration tenancy [F22, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy] —

(a)if at any time the executor is satisfied that the interest cannot be disposed of according to law and so informs the landlord, the executor may terminate the tenancy (in so far as it relates to the interest); and

(b)if the interest is not so disposed of within the period referred to in subsection (4D) below, the lease shall (in so far as it relates to the interest) terminate at the expiry of the period,

notwithstanding any provision in the lease, or any enactment or rule of law, to the contrary effect.

(4D)The period is one year or such longer period as may be fixed by agreement or, failing agreement, by the Land Court on the application of the executor—

(a)in the case of an interest which is the subject of an application to that court by virtue of section 21 of the 2003 Act, from the date of the determination or withdrawal of the application; and

(b)in any other case, from the date of death of the deceased.

(4E)The—

(a)interest may be transferred under subsections (4A) and (4B) above; or

(b)tenancy may be terminated under subsection (4C)(a) above,

only if the transfer, or as the case may be, termination is in the best interests of the deceased’s estate.]

(5)Subsection (3) of this section shall not prejudice any claim by any party to the lease for compensation or damages in respect of the termination of the lease (or any rights under it) in pursuance of that subsection; but any award of compensation or damages in respect of such termination at the instance of the executor shall be enforceable only against the estate of the deceased and not against the executor personally.

(6)Where an interest is an interest under an agricultural lease, and—

(a)an application is made under section 3 of the Act of 1931 [F23or section 13 of the Act of 1955] to the Land Court for an order for removal, or

(b)a reference is made under [F24section 23(2) and (3) of the 1991 Act] [F25for the determination of] any question which has arisen under [F24section 22(2)(e)] of that Act in connection with a notice to quit,

the [F26order or determination shall not be] in favour of the landlord, unless F27. . . it is reasonable, having regard to the fact that the interest is vested in the executor in his capacity as executor, that it should be made.

(7)Where an interest is not an interest under an agricultural lease, and the landlord brings an action of removing against the executor in respect of a breach of a condition of the lease, the court shall not grant decree in the action unless it is satisfied that the condition alleged to have been breached is one which it is reasonable to expect the executor to have observed, having regard to the fact that the interest is vested in him in his capacity as an executor.

(8)Where an interest is an interest under an agricultural lease and is the subject of a valid bequest by the deceased, the fact that the interest is vested in the executor under the said section 14 shall not prevent the operation, in relation to the legatee, of paragraphs (a) to (h) of section 16 of the Act of 1886 [F28, sections 11(8), 12A and 12B of the 1991 Act,] section 21(2) and (3) of the 2003 Act, [F29 or, as the case may be, subsection (2) to (7) of section 10 of the Act of 1955].

[F30(8A)For the purposes of subsection (3)(b) above, the “relevant court” is—

(a)in the case of an interest under a lease constituting a 1991 Act tenancy, the Land Court; and

(b)in any other case, the sheriff,

and an application to the sheriff in any such other case shall be by summary application.]

(9)In this section—

• “agricultural lease” means a lease of a holding within the meaning of the Small Landholders (Scotland) Acts 1886 to 1931 [F31, or a lease of a croft within the meaning of section 3(1) of the [F32Crofters (Scotland) Act 1993 (or of any part of a croft if it is a part consisting of a right mentioned in section 3(4)(a) of that Act)], or a lease constituting a 1991 Act tenancy, or a lease constituting a short limited duration tenancy [F33, a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy]] ;

• “the Act of 1886” means the M1Crofters Holdings (Scotland) Act 1886;

• “the Act of 1931” means the M2Small Landholders and Agricultural Holdings (Scotland) Act 1931;

• [F34 “the 1991 Act” means the Agricultural Holdings (Scotland) Act 1991;]

• [F35“the 2003 Act” means the Agricultural Holdings (Scotland) Act 2003 (asp 11);]

• [F36“the Act of 1955” means the M3Crofters (Scotland) Act 1955;]

• “lease” includes tenancy;

• [F37“1991 Act tenancy”, “short limited duration tenancy” [F38, “limited duration tenancy”, “modern limited duration tenancy” and “repairing tenancy”] shall be construed in accordance with the 2003 Act.]]