Legal tips for grouse moor transactions (in England) from Bertie Hoskyns-Abrahall, Partner at Withersworldwide
1. The ownership of a grouse moor can take various forms. Freehold ownership of the land, ownership of common land, freehold ownership of sporting rights, or a lease of the above. It is important to establish which applies to the moor you want to buy as it may affect the value and will affect the legal documentation and process.
2. If your moor is common land, it will be subject to commoners’ rights. You must not adversely impact these rights. The most important common rights are rights to graze animals (rights of herbage), but others that you come across on moors are rights of turbary (to remove peat) and estovers (the right to take wood, gorse and rushes).
3. Almost all grouse moors will have various occupiers, and the inter-relationship between them is the key to sporting success. Any subsidy scheme will require capital works or changes to management regimes to be undertaken in order to receive payment. These may be undertaken by the farmer (removal of stock in the winter), or the owner (heather burning) and any payment received will therefore be split between the parties. A buyer should insist on this being clear and documented at the point of purchase.
4. Grouse moors are generally businesses. Any employees on the moor will transfer to a new owner and they are entitled to at least the same terms as they enjoyed before, under the Transfer of Undertakings (Protection of Employment) regulations (TUPE).
5. Many moors will have handshake arrangements with tenants or neighbours relating to vermin control, off-wintering of sheep or similar activities. These can be relatively valuable and if a sale is contemplated consideration should be given to formalising any such arrangements prior to sale.
6. An important aspect in the sale of most moors is the equipment that is used in the management of the moor. This should be itemised and valued before completion so that the buyer is not paying for kit that is being used (and in some cases abused) by the seller after the price is agreed.
7. Moors should have a fire risk assessment and health and safety accident book. Indemnity should be sought on handover for any such issues or breaches of regulations that may have occurred on the moor.
8. The value of grouse moors is influenced by the bag records. So sellers should warrant in the legal documents that these are correct, and buyers should ask for the game books to be included in the sale.
9. Ensure that planning applications on nearby moors are scrutinised before purchasing a moor. It would be unfortunate if a wind farm appeared just over the boundary fence after you had bought your unspoilt hill.
10. Instruct specialist advisors who really understand moorland issues.