Check Your Agreement To Avoid Joint Tenancy Pitfalls

• Published date: 01 March 2022
• Subject Matter: Real Estate and Construction, Landlord & Tenant - Leases
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Hamish Lean

In my previous article on this topic, I discussed the difficulties that can arise where a partnership holds an agricultural tenancy and there is a change in the constitution of the partnership.

In some instances, that might lead to the end of the tenancy itself, as a partnership is a separate legal person in Scots law; separate from the individual partners within the partnership.

I had a number of telephone calls afterwards from people who were concerned about their own situation. They were worried that they might hold their farm tenancy by virtue of a partnership and that the tenancy might be at risk if a partner was to die or retire.

In the main, however, these were calls from people who held joint tenancies.

This means that each of the tenants holds a joint interest as tenant in the lease as an individual, and it is quite distinct from the situation where a partnership is the tenant.

It is common for a tenancy to be held jointly by different family members, for example by a father and son.

Accordingly, even if joint tenants conduct a family farming business within a partnership, that does not mean that the partnership is the tenant.

A change in the identity of the individual partners will not lead to the end of the tenancy. However, there are some important consequences of a joint tenancy about which people should be aware.

Generally speaking, a written lease will provide for one of two ways in which a joint tenancy can be held. It can be held by the joint tenants and to the survivor of them, or it can simply be...