Question time

I am the sole title-holder of a 23ha (57 acres) freehold property.

My family has been in continuous occupation since 1895, first as tenant and since 1946 as owners.

The farm passed to my mother in 1968 on my father’s death and I became my mother’s tenant in 1970.

My question concerns a 50-perch (one-third of an acre) plot bounded on one side by the public highway and on the other three by my land and the main access to the farm.

The title deeds show that in the 1920s, the farm changed hands except for this plot.

In 1974 my mother made a constitutional declaration to the effect that in her lifetime (she was born on the farm) the plot had never been fenced and had been managed as part of the farm.

No communication had ever been received from the owners.

I supported the declaration and we thought we had acquired squatter’s rights.

In 1974 a road-widening scheme involved this plot.

I also got planning consent to widen my access over part of it.

Nothing was heard from the owners then or since.

My mother passed the farm to me in 1992.

Latterly, gas and water mains have passed under the plot.

Earlier this year I transferred a small parcel of land that made it necessary to obtain the farm’s definitive map from the Land Registry.

In it, the 50-perch plot was lined off.

The Land Registry has no record of the 1974 declaration.

The solicitor who administered the declaration tells me that registration was not compulsory at that time in our district.

He advised me to swear another declaration, but added that this may draw the attention of the owners of the plot.

My dilemma is whether to pursue the matter, bearing in mind the costs, or let it lie.

The land is designated agricultural and green belt.

Answered by William Green, Burnetts, Carlisle

You are in the best position to judge how important this land is to you, but my initial view is that this could be pursued further.

You should contact your solicitor again, and begin to gather more information.

First, carry out an index map search at HM Land Registry of the land in question.

The reply will tell you whether it is registered or unregistered.

If it is registered the registration details will include the name of the owner, and you will at least know who you have to deal with.

If the land is unregistered, you need to consider whether the deed of gift you refer to (dated 1992) contains the land your mother mentioned in the 1974 Constitutional Declaration – a document more correctly called a Statutory Declaration.

If it has been included, then you may seek a voluntary first registration using the statutory declaration, the deed of gift and a further statutory declaration by you to cover the period 1974 to date.

This may not remove all of the potential worries you have as regards the ownership of the land but, if successful, will certainly put you in a better position so far as anyone else’s future claims are concerned.

Even if the land was not specifically mentioned in the 1992 Deed of Gift, you can still make application to the Land Registry for registration supported by your further statutory declaration.

You refer to easements granted for pipelines to your local gas and water companies through the ground in question.

Unfortunately you do not give a precise date as to when this happened.

The granting of an easement by the “owner” shows they still feel they have right to the title, and could be the source of problems in the future.

It should be possible to obtain a copy of the deed, and this will provide further information.

We are retired farmers and own a small farm consisting of 50 acres, a range of agricultural buildings and two houses.

The land and buildings are let on a two-year agricultural tenancy.

We live in the farmhouse which is subject to an agricultural occupation clause. The other house is let on a yearly tenancy.

I assume the let house will be subject to inheritance tax (IHT) and wonder what the position is regarding the house we live in.

Answered by Julie Butler, FCA Butler & Co, Alresford, Hants

Under current legislation both farmhouse and cottage would fall into the IHT trap.

The problem is that you retired and let the land and buildings.

You are therefore not trading and so the houses are not used in the farming trade.

The tax planning key is never to retire!

Ideally you should have entered into a contract farming arrangement and then the farmhouse would stand more chance of obtaining relief.

If the let cottage was included in the business and the business accounts there could be hope for IHT relief under the 1999 case named Farmer.

However IHT relief on farmhouses is under attack from the Inland Revenue and in your case, with only 50 acres, it could be challenged on what is known as the “character appropriate” rules.

There is great scope for IHT protection, but it needs detailed professional advice.

I have been approached by a developer who would like to use an area of my land to site turbines for a proposed wind farm development.

What type of agreement will I be expected to enter into and how might this affect my Single Farm Payments?

Answered by Pamela Todd and Hazel Tait, Agricultural Practice Group, Harper Macleod LLP, Edinburgh

It is common for this type of arrangement to be implemented by an option agreement and lease.

The option can be for whatever length of time is acceptable to both parties, and gives the developer time to determine the suitability of the land for development and obtain planning and other consents for construction.

The option will entitle the developer to require the grant of the lease of the land for the development.

It is important to consider the extent of your ownership of the land and to be aware of the implications of any reservation of ownership of minerals.

In many cases normal agricultural activities can continue around the turbines.

In relation to the Single Farm Payment scheme, it is very important that the landowner or tenant retains the right to farm the area in and around the turbines.

That will ensure that it remains within the control of whoever is claiming entitlement to the SFP.

Farmers must be aware of their obligations in relation to the ten-month rule and their continuing cross compliance obligations, which must be met as a condition of receiving SFP.

The other main concern for landowners is the restoration of the site at the end of the project.

This is regulated in two main ways:

An obligation in the lease to restore the area after the term of the lease has expired.

The Scottish Ministers or planning authority will make restoration a condition of the granting of a consent.

The landowner should ensure that the restoration bond is written so that the landowner can call on the bond if the developer does not restore the site to the satisfaction of the landowner and the planning authority.

Always take legal advice in relation to the specifics of the land under your ownership or tenancy.

I have noticed recently that people are walking on part of my land linking two existing public footpaths which also cross my land.

However, the new route they are using is not a public footpath and I am concerned that a right of way may be created by this use.

What should I do?

Answered by Nigel Farthing, Birketts, Ipswich, Suffork

A public right of way can be established by long usage.

After 20 years’ use there is a statutory presumption that the route has become a public right of way unless the landowner can demonstrate that during that period he had no intention to dedicate the route for public use.

Under common law a public right of way can be acquired in less than 20 years.

To avoid rights becoming established, it is important you demonstrate that you have no intention of allowing the route to become a public right of way.

One way to achieve this is by erecting a fence or barrier to prevent the public from taking the new route.

Alternatively you can erect a sign making it clear that the public are not permitted to use the route.

Signs that just say “Private” or “Private Land” often have no effect.

The best form of words is “Private Land.

No public right of way”.

A more effective measure is to lodge a statement and declaration in accordance with Section 31(6) of the Highways Act 1980 with the highway authority.

This demonstrates your lack of intention to dedicate any new rights of way over the land covered by the statement.

The only cost involved is preparing a simple statement and plan and making a statutory declaration to confirm the facts.

My mother and father have occupied and farmed for over 50 years via an agricultural farm tenancy.

On the recent death of my father, it has been discovered that the tenancy agreement was solely in my father’s name.

The farming activities have always been carried out by the farming partnership in my mother and father’s names.

To the best of my knowledge no formal partnership agreement was ever put in place.

There are two questions I would like answering:

Owing to the fact that the partnership has always paid the rent, has the farming partnership established a right to the tenancy?

My sister has been living and working on the farm for the past 15 years.

Can it be argued that she has an entitlement to the tenancy and can it be transferred into her name?

Answered by Graham Smith, Roythornes, Spalding, Lincs

It is unlikely that the partners have become tenants.

However, the succession provisions of the Agricultural Holdings Act 1986 apply.

Either your mother or your sister may well be eligible to succeed and they should both consider making applications.

It is likely to be better for your sister to become tenant as the younger person.

There is a time limit for claiming succession of three months from your father’s death.

This cannot be extended.

There is a special form to complete and a lot of information will be required.

You must take advice immediately from a land agent or solicitor with appropriate experience.

Give us a try

Email your questions to fwreaderqueries or fax them to 020 8652 4005 or write to FARMERS WEEKLY Legal Queries, Quadrant House, The Quadrant, Sutton, Surrey SM2 5AS. All questions will be published anonymously.