11.41 A license or tenancy granted after the commencement of the Housing Act 1988 will normally be an ‘assured’ agricultural occupancy (below).
Protected occupancy status under the 1976 Act is preserved by the 1988 Act96 for licenses and tenancies granted on or after 15 January 1989 in three situations only, viz:
(i)if they were entered into pursuant to a contract entered into prior to the commencement of the 1988 Act.
Semble, this would include occupancies granted as a term of a contract of employment entered into prior to the 1988 Act’s commencement; or(ii)if the tenancy or license was granted to a person who immediately before its grant was the protected or statutory occupier of tied accommodation. The occupier’s protected status therefore continues in the event of surrender and regrant, provided the regrant is by the person who was landlord or licensor (or one out of joint landlords/licensors) under the previous protected occupancy or statutory tenancy; or
(iii)prior to the grant of the tenancy, an order for possession was granted under Case I to Sch 4 of the 1976 Act (ie suitable alternative accommodation) and the premises occupied are suitable alternative accommodation provided by the landlord, the tenancy of which the court directed should be a protected tenancy.97
11.42 It will be appreciated that the transitional provisions define those tenancies and licenses which can remain protected under the 1976 Act, without stating clearly those which will fall to be protected instead by the 1988 Act. Under both Acts98 protection accrues only once the agricultural worker condition has been satisfied viz when the occupier is a qualifying worker who has worked whole time in agriculture (or has thus worked as a permit worker) for 91 out of the last 104 weeks.99 A problem may arise where an agricultural worker was granted a tenancy or license prior to 15 January 1989 (the commencement date of the 1988 Act) but satisfied the agricultural worker condition after that date, eg he may have entered into a tenancy or license 90 weeks before 15 January 1989. At the commencement of the 1988 Act regime he was not a qualifying worker; but he will become protected after commencement of the 1988 Act, having then completed 91 weeks’ employment in agriculture.100 Does the employee have in these circumstances a ‘protected’ or an ‘assured’ agricultural occupancy, viz does the 1976 Act apply, or the assured tenancy code of the 1988 Act? The better view, it is suggested, is that the Rent (Agriculture) Act 1976 will continue to apply in such circumstances, albeit that its protection may have accrued after the commencement of the 1988 Act.
The occupancy will have been granted pursuant to a contract made before the commencement of the 1988 Act, and so will be covered by the saving provisions in s 34 ibid.101 Although there is no provision which expressly excludes protection under the 1988 Act, an assured agricultural occupancy cannot arise in these circumstances. For protection under the 1988 Act there must be an assured tenancy, or an interest which would be such if certain factors (eg a low rent) were discarded. But Sch 1, para 1 to the 1988 Act specifies that a tenancy entered into before, or pursuant to a contract made before, 15 January 1989 cannot be an assured tenancy. Reading the assured agricultural occupancy provisions with Sch 1 to the 1988 Act,102 then it is clear that an occupancy granted prior to 15 January 1989, but which becomes protected only after that date, will confer on the occupier the more extensive protection of the Rent (Agriculture) Act 1976, and not that of the 1988 Act.