2 Agricultural Holdings and the Rent Acts

5.96 If a farmhouse or cottage was let before 1 September 1995 with land in circumstances where the letting of the whole was of an agricultural holding, then the Agricultural Holdings Acts will govern the relationship between landlord and tenant.²¹⁶ Rent Act protection for the occupant of a farmhouse is excluded²¹⁷ where a dwelling house is comprised in an agricultural holding and is occupied by the person responsible for the control (whether as tenant, or as a servant or agent of the tenant) of the farming of the holding.

5.97 The position is somewhat more complex where a farm tenant sublets a cottage or farmhouse, either to an agricultural employee or a third party. Agricultural employees occupying tied accommodation at low rents are covered by the codes of protection in the Rent (Agriculture) Act 1976²²⁰ and the Housing Act 1988,²²¹ which will apply as between the tenant of the holding and his subtenant if the latter is his employee. If, however, the mesne tenancy is terminated, then at common law the sub-tenancy falls with it unless the termination was by surrender.²²² The sub-tenant is therefore potentially in a vulnerable position.

5.98 The Rent (Agriculture) Act 1976, the Rent Act 1977 and the Housing Act 1988 therefore make special provision to protect certain categories of subtenant:

(a)Tied agricultural accommodation

5.99 If the mesne tenancy is of an agricultural holding, and the tenant sublet dwellings to agricultural employees at a low rent before 15 January 1989, the applicable provision is the Rent (Agriculture) Act 1976, s 9(3).

‘from the coming to an end of the superior tenancy this Act shall apply in relation to the dwelling-house as if, in lieu of the superior tenancy there had been separate tenancies of the dwelling-house and the remainder of the premises, for the like purposes as under the superior tenancy and at rents equal to the just proportion of the rent under the superior tenancy’.

5.100 This protection expressly applies where the superior ‘premises’ comprise an agricultural holding, part of which is then let as tied accommodation. As a consequence of s 9(3) there will be notional head leases of the dwelling and of the remainder of the holding. If the head lease of the former is terminated the employee will therefore be entitled to rely on s 9(2), which provides that the sub-tenant will become the tenant of the landlord on the same terms as if the mesne tenant’s statutorily protected tenancy had continued. Protection will only accrue if the sub tenancy is lawful, and if the mesne tenancy is itself a ‘statutorily protected tenancy’, viz. a tenancy of an agricultural holding within the meaning of the Agricultural Holdings Act 1986.²²³ Note also that the 1976 Act applies only to sub-tenancies granted prior to 15th January 1989. If granted on or after that date the employee will have an assured agricultural occupancy to which the Housing Act 1988 will apply. The rules in the 1988 are altogether more straightforward.²²⁴

(b)Subtenant of non-tied accommodation

5.101 Similar provision to that contained in s 9 was made by s 137(3) of the Rent Act 1977. This applies to subtenants who are not themselves workers occupying tied accommodation at a low rent.²²⁵ Like s 9 of the 1976 Act, s 137(3) provides that where the mesne tenancy is of ‘premises’ which do not themselves constitute a dwelling-house let on a statutorily protected or statutory Rent Act tenancy, then on termination of the mesne tenancy there will be deemed to be notional separate lettings of the dwelling-house and the remainder of the premises.

5.102 In Maunsell v Olins²²⁶ it was held that the phrase ‘premises’ in s 137(3), referring to the mesne tenancy, did not include an agricultural holding. The result in that case was that a protected subtenant of a cottage on a farm was unable to invoke the subsection to claim protection against the head landlord. The phrase ‘premises’ was said by the House of Lords to be limited to a dwelling-house and could not include a farm. This awkward decision was partially reversed by the Rent (Agriculture) Act 1976, which added an express proviso to s 137(3) that ‘premises’ includes an agricultural holding within the 1986 Act. It was further provided, however, that protection would only accrue to the subtenant if he is an agricultural worker and the circumstances are such that, if the sub tenancy were at a low rent, it would have been a protected occupancy or statutory tenancy within the Rent (Agriculture) Act 1976.²²⁷

(c)Housing Act 1988

5.103 Where a sub tenancy of a dwelling house is created on or after 15 January 1989, the Housing Act 1988 will apply, and not the Rent (Agriculture) Act 1976 or Rent Act 1977.²²⁸ The applicable rules under the 1988 Act are altogether more straightforward than those in s 137(3) of the Rent Act 1977. These rules apply both where the mesne tenancy is an agricultural holding, and where it is a farm business tenancy (ie where both mesne and sub tenancy were created on or after 1 September 1995).

5.104 Section 18(1) of the 1988 Act protects a subtenant whose interest, as between himself and the mesne tenant, constitutes an assured tenancy within the meaning of Part I of the 1988 Act. Section 18(1) provides that if a dwelling is lawfully let on an assured tenancy and the mesne tenant is himself a tenant under a superior tenancy which comes to an end, then the assured tenancy will continue to exist as a tenancy held of ‘the person whose interest would, apart from the continuance of the assured tenancy, entitle him to actual possession of the dwelling-house at that time’.

1.The dwelling must be lawfully sublet for s 18(1) to apply, and not sublet in breach of a covenant against alienation. If the head lease is of an agricultural holding and does not contain a covenant against alienation, this reinforces the importance of invoking the arbitration machinery in the Agricultural Holdings Act 1986 to secure a covenant against assignment or subletting without consent.²³⁰ There is no machinery to obtain this insertion of a covenant against alienation into a farm business tenancy, and one must be taken in the tenancy agreement itself. Where the mesne tenancy is a farm business tenancy, therefore, any subsequent subletting will be lawful (and thus potentially within the protection of section 18) if a covenant against alienation has not been taken on grant.

2.The mesne tenancy that is terminated need not itself be an assured tenancy. Section 18(1) will apply where the mesne tenancy is of an agricultural holding, a farm business tenancy or (indeed) a business tenancy.²³¹ It will not apply, however, where the interest of the landlord is one which, by virtue of Sch 1 to the Housing Act 1988, precludes assured tenancy status, eg if the head lease was granted by the Crown or by a local authority, and the dwelling was then sublet on an assured tenancy to the subtenant claiming protection.²³²

3.It is clear from the terms of s 18(1) that the subtenant continues to hold the tenancy under the terms of the sub tenancy originally granted to him, the only import of the section being as to the identity of his immediate landlord.

4.It will be apparent from the foregoing that the protection afforded to subtenants by the 1988 Act is considerably greater than that under the Rent Act 1977. Provided a subtenant has either an assured tenancy or an assured agricultural occupancy he will be entitled to protection vis-à-vis the ultimate landlord. The only control the latter can exercise over the creation of protected sub tenancies is through refusal of consent to sublet, pursuant to a covenant against alienation in the head tenancy. The covenant against alienation implied into tenancies of agricultural holdings is absolute,²³⁶ and where the intermediate tenancy is of an agricultural holding the landlord may be well advised, therefore, to insist (when granting consent) that subletting be by way of an assured shorthold tenancy. In the case of a farm business tenancy granted on or after 1 September 1995, it is similarly very important to take a covenant against alienation in the intermediate tenancy agreement.

5.It should also be noted that the protection of s 18(1) would extend to all assured subtenants, and not simply agricultural workers. Cf Rent Act 1977, s 137(3), the protection of which was only available to agricultural workers with a protected or statutory tenancy that would have been within the Rent (Agriculture) Act 1976 if at low rent.²³⁷ This restriction does not appear in s 18(1) of the 1988 Act.

5.105 If a cottage is let separately and by a different tenancy agreement to agricultural land,²³⁸ then the tenancy will be governed by either the Rent Act 1977 or the Housing Act 1988 – provided of course that the premises have been let ‘as a separate dwelling’ within the meaning of those Acts and have the appropriate rateable value.

5.106 Whether the dwelling sublet is comprised in an agricultural holding or farm business tenancy – or carved out of a protected tenancy under the Rent Act 1977 or the Rent (Agriculture) Act 1976 – it will enjoy the basic protection afforded by the Protection from Eviction Act 1977 will apply. Provided the occupant is occupying the premises as his residence, the Protection from Eviction Act makes it a criminal offence to unlawfully deprive him of possession or to harass him by ‘doing acts calculated to interfere with [his] peace or comfort’.²⁴⁰ All notices to quit must be in writing, include prescribed information and give at least four weeks notice of termination.²⁴¹ Note in particular that s 4 of the 1977 Act confers on the Court power to suspend the execution of a possession order made against an agricultural employee occupying tied accommodation, but whose tenancy is not protected by the Rent (Agriculture) Act 1976. The Court must grant suspension if the order is made within six months of the former tenancy coming to an end. The Housing Act 1988²⁴² extended the power of suspension to licences granted to agricultural employees. The Protection from Eviction Act 1977 does not, however, apply to a notice to quit terminating the head tenancy, whether it be an agricultural holding or farm business tenancy.²⁴³ It does not, accordingly, have to contain the prescribed information required by the 1977 Act.

1As to which see Chapter 3 para 3.26 ff.

2Ie under Part IV, Agricultural Holdings Act 1986. See Chapter 8 below.

3For an example see Creasey v Sole [2013] EWHC 1410 (Ch).

41986 Act, s 1(2).

5Ibid, italics added.

6See Howkins v Jardine [1951] 1 KB 614, CA. Lord Monson v Bound [1954] 3 All ER 228.

7[1954] 2 QB 171, CA.

8Ibid [1954] 2 QB 171, 177 and 178 per Romer and Somervill LJJ.

9Lester v Ridd [1989] 1 All ER 1111, CA.

10Jelley v Buckman [1973] 3 All ER 853, CA.

111986 Act, s 1(4).

12Lord Glendyne v Rapley [1978] 1 WLR 601, CA.

13Cf McClinton v McFall (1974) 232 EG 295.

14See Millington v Secretary of State for the Environment (1999) EGCS 95.

15[1988] 1 All ER 74, 78, HL.

161986 Act, s 96(1).

17See Forth Stud Ltd v East Lothian Assessor [1969] RA 35, 46.

18Lord Glendyne v Rapley [1978] 1 WLR 601, CA; Earl of Normanton v Giles (1978) 248 EG 869, CA.

19Belmont Farm Ltd v Minister of Housing and Local Government (1962) 13 P & CR 417; Hemens v Whitsbury Farm Ltd (above).

20For instance, snails. Cf Jones v Bateman (1974) 232 EG 1392, CA; Wallace v Perth and Kinross Assessor 1975 SLT 118; Gunter v Newtown Oyster Fishery Co Ltd (1977) 244 EG 140; Cresswell v British Oxygen Co Ltd [1980] 3 All ER 443, CA and other rating decisions.

21See Rutherford v Maurer [1962] 1 QB 16, CA and McClinton v McFall (1974) 232 EG 707 – grazing land used occasionally to break in horses held an agricultural holding.

22McClinton v McFall (1974) 232 EG 707.

23Sykes v Secretary of State for the Environment (1981) 42 P & CR 19, 23, per Donaldson LJ.

24Floyer-Acland v Osmond [2000] 22 EG 134 CA.

25Stevens v Sedgeman [1951] 2 All ER 33, CA.

26Adsetts v Heath (1951) 95 Sol J 620, 633.

27Blackmore v Butler [1954] 2 QB 171, CA.

28Cf Hasell v McAulay [1952] 2 All ER 825, decided under the Agriculture Act 1947.

29Godfrey v Waite (1951) 157 EG 582, CA.

30Howkins v Jardine [1951] 1 KB 614, 628, CA, per Jenkins LJ.

31See Dunn v Fidoe [1950] 2 All ER 685, CA.

32See Howkins v Jardine, above; Lord Monson v Bound [1954] 3 All ER 228.

33Kempe v Dillon-Tranchard [1951] EGD 13.

34Iredell v Brocklehurst (1950) 155 EG 268, CA.

35(1977) 40 P & CR 218n.

36[1980] 2 All ER 530, per Sir David Cairns at 536–7.

37And see Short v Greeves [1988] 1 EGLR 1, CA.

38[1980] 2 All ER 530, per Sir David Cairns, at 537.

39[1988] 1 EGLR 1, CA.

40[1954] 3 All ER 228.

41Indeed, this may be true of Short v Greeves itself – had the agricultural land there been in disuse and 60% of turnover derived from non-agricultural sources at the outset, it would, it is suggested, have been open at first instance to hold that the letting was a business tenancy simpliciter and not an agricultural holding at all.

42On cesser and change of use generally see [1983] Conv 390–397 (Martin), and on Short v Greeves [1988] 138 NLJ 329 (Wilkinson), (1988) 14 EG 51 (Muir Watt), (1988) Conv 430 (Rodgers).

43(1951) 157 EG 582, CA.

44[1980] 2 All ER 530, CA.

45The definition of an agricultural holding in s 1(1), Agricultural Holdings Act 1986 is phrased in the present tense (‘agricultural holding’ means ‘the aggregate of the land comprised in a contract of tenancy which is a contract of for an agricultural tenancy…. under which the land is let to the tenant’ (emphasis added)). Moreover, the situations in which a variation of tenancy on or after 1 September 1995 can be made while preserving the status of a letting as an agricultural holding within the 1986 Act are defined closely in s 4, Agricultural Tenancies Act 1995 (see Chapter 3 para 3.33 above). These do not provide for a tenancy to move into the 1986 code after this date if the tenancy was not that of an agricultural holding prior to 1 September 1995. Any other interpretation than that presented in the text above would undermine the statutory policy represented in s 4 of the 1995 Act.

46Upjohn J in British Land Co Ltd v Herbert Silver (Menswear) Ltd [1958] 1 QB 530, 539, CA.

47Per Asquith LJ in Court v Robinson [1951] 2 KB 60, 70, CA.

48Wolfe v Hogan [1949] 2 KB 194, 206, CA per Denning LJ.

49This provision derives from Agricultural Holdings Act 1984, Sch 3, para 1(3).

50Wolfe v Hogan, supra, at 206.

51(1982) 5 HLR 10.

52Ie Rent Act 1977 or Housing Act 1988 as amended.

53Ie Part 11 Landlord and Tenant Act 1954, as amended.

54If granted before 1 September 1995, when the Agricultural Tenancies Act 1995 came into force.

551986 Act, s 1(4)(a).

56Rutherford v Maurer [1962] 1 QB 16, CA.

57Section 1(2), Short v Greeves [1988] 1 EGLR 1, CA.

581986 Act s 1(5).

59Agricultural Holdings Act 1986, s 25.

60See Chapters 6 and 7 below.

611986 Act, s 1(1).

62See eg Epps v Ledger (1972) 225 EG 1373.

63Section 2(2), Agricultural Holdings Act 1986.

64See Calcot v JS Bloor [1998] 3 EGLR 1. (Purported grant of a tenancy of 13 months from 1 November 1993, but tenancy agreement signed later on 11 June 1993. Legal term granted from date of signature by the parties, and therefore of less than 12 months on grant and caught by s 2. Held the anniversary date of the annual tenancy created by statutory conversion was 11 June, not the date of expiry of the initial fixed term).

65See Davies v Davies [2002] EWCA Civ 1791, esp. at para 22 per Sir Anthony Evans: ‘We were told that the section was not re-enacted in the Agricultural Holdings (sic) Act 1995… [and that] we could infer from this that the policy which motivated the 1986 Act and its predecessors was no longer approved by Parliament. But the section was not repealed with retrospective effect and it continues to apply…. Therefore, in my judgement the 1986 Act should not be interpreted on the basis that the Parliamentary intention underlying it has somehow changed’. (emphasis added).

66Section 96. See above para 5.07 ff.

67As to which see below para 5.62 ff.

68Examples include the decisions in Davies v Davies [2002] EWCA Civ 1791; Well Barn Farming Ltd v Backhouse [2005] EWHC 1520 (Ch); Creasey v Sole [2013] EWHC 1410 (Ch.).

691986 Act s 2(2)(a).

70Bernays v Prosser [1963] 2 QB 592, CA, especially at 599; tenancy ‘for a period of one year to 31st March 1962’ protected.

71Gladstone v Bower [1960] 2 QB 384, CA; see further below.

72Keen v Holland [1984] 1 All ER 75, 80, CA, per Oliver LJ.

73See Keen v Holland ibid. Cf. Agricultural Tenancies Act 1995, s 38(1) of which expressly excludes tenancies at will from the scope of the farm business tenancy legislation.

74[1991] Ch 448.

75See Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386.

76[2010] EWCA Civ 811; Rev’d [2011] UKSC 52.

77Such an agreement would not attract statutory protection under the 1986 Act, however, as the operation of the rules converting the tenancy in to a protected annual tenancy on expiry by effluxion of time are specifically excluded: s 3(3), Agricultural Holdings Act 1986.

78See s 2, Law of Property (Miscellaneous Provisions) Act 1989.

79[2011] EWCA Civ 1387.

80Sections 2(1) and (3). These exceptions are discussed further below at paras 5.69, 5.70 ff.

81[1984] 1 All ER 75, CA.

82Verrall v Farnes [1966] 2 All ER 808.

83Harrison v Moss (1952) 102 L Jo 305.

84As in Keen v Holland [1984] 1 All ER 75, CA; Calcot v JS Bloor [1998] 3 EGLR 1.

85See 1986 Act, s 2(2)(b).

86See Goldsack v Shore [1950] 1 All ER 276 at 278, CA, per Evershed MR; Harrison-Broadley v Smith [1964] 1 All ER 867 at 874, CA, per Pearson LJ: ‘this section is not applicable to an agreement which is not capable of taking effect, with the necessary modifications, as an agreement for the letting of the land for a tenancy from year to year.’

87See Errington v Errington and Woods [1952] 1 KB 290, CA.

88See Walters v Roberts (1980) 41 P & CR 210.

89[1985] 2 All ER 289 at 300, per Lord Templeman.

90[1950] 1 KB 708.

91Avon County Council v Clothier (1977) 75 LGR 344, CA; King v Turner [1954] EGD 7.

92[1966] 2 All ER 808.

93[1992] 2 EGLR 1.

94Mitton v Farrow (1980) 255 EG 449, CA.

95Davies v Davies [2002] EWCA Civ 1791, para 19 (Sir Anthony Evans).

96Colchester BC v Smith [1991] Ch 448.

97Colchester v Smith ibid. The supposed surrender of accrued tenancy rights under the 1986 Act, as consideration for entering into a new licence agreement was also rejected here. No statutory conversion of the subsequent licence was found.

98See Epps v Ledger (1972) 225 EG 1373. Note, however, that the doctrine of part performance has been abolished by s 2(8), Law of Property (Miscellaneous Provisions) Act 1989 insofar as it applied to contracts for the sale or disposition of interests in land.

99[1964] 1 All ER 867, CA.

100[1974] 3 All ER 881, HL.

101Harrison-Broadley v Smith [1964] 1 All ER 647 CA. Cf. Padbury v York [1990] 41 EG 65.

102Creasey v Sole [2013] EWHC 1410 Ch., esp. judgment at para [90].

103Bahamas International Trust Co Ltd v Threadgold [1974] 3 All ER and ER 881 HL.

104Wyatt v King (1951) 157 EG 124, CA.

105Milton (Peterborough) Estates Co v Harris [1989] 2 EGLR 229.

106Snell v Snell (1964) 191 EG 361.

107Padbury v York (1990) 41 EG 65. (‘Where the agreement in question has the effect of conferring on the grantee party a right to exclude the grantor otherwise entitled to possession from agricultural exploitation of the land, the provisions of [s 2] are satisfied and the agreement attracts the protection of the Act’, Evans‑Lombe QC).

108Sparkes v Smart [1990] 2 EGLR 245.

109[1993] 2 EGLR 6.

110Gladstone v Bower [1960] 2 QB 384, CA.

111Harrison-Broadley v Smith [1964] 1 WLR 456, per Davies LJ at 470.

112See Calcot v JS Bloor [1998] 3 EGLR 1.

113[1950] 1 KB 708 (emphasis added).

114[2002] EWCA Civ 1791.

115Ibid. Sir Anthony Evans at para 33.

116This would be incompatible with its annual use for arable cropping.

117[2005] EWHC 1520 (Ch).

118Ibid. judgment at para 51.

119Cf. Yearly tenancies arising under s 2 (above) where statutory conversion takes place immediately upon grant, with the result that the anniversary date of the yearly tenancy thus created will be fixed by the date of grant. See generally Calcot v JS Bloor [1998] 3 EGLR 1.

120Section 3(2), Agricultural Holdings Act 1986.

121Section 3(3) ibid.

122[2011] UKSC 52.

123Introduced by Agricultural Holdings Act 1984, Sch 3, para 21.

1241986 Act s 21.

125[1950] 1 KB 708.

126[1985] 2 All ER 289.

127[1985] 2 All ER 289 at 300 per Lord Templeton.

128Ashburn Anstalt v Arnold [1989] Ch 1, CA.

129Bahamas International Trust Co Ltd v Threadgold [1974] 3 All ER 881, HL.

130[1991] Ch 448.

131[1992] 2 EGLR 5.

132Gladstone v Bower [1960] 2 QB 384, CA.

133But not other decisions of the House of Lords itself Eg Bahamas International Trust Co Ltd v Threadgold [1974] 3 All ER 881 HL.

134[1990] 17 EG 78, CA.

135As to the exemption of grazing and mowing agreements generally see below.

136McCarthy v Bence [1990] 17 EG 78 at 82 per Dillon LJ.

137[1992] 2 EGLR 5.

138Watts v Yeend [1987] 1 All ER 744, 752, CA, Kerr LJ.

139Reid v Dawson [1955] 1 QB 214, CA.

140See Cox v Husk (1976) 239 EG 123.

141Lampard v Barker (1984) 272 EG 783, CA.

142Rutherford v Maurer [1962] 1 QB 16, CA.

143Brown v Tiernan [1993] 1 EGLR 11.

144Stone v Whitcombe (1980) 40 P & CR 296, CA.

145[1987] 1 All ER 744, CA.

146See Mackenzie v Laird 1959 SLT 268, applied in Watts v Yeend (above); Butterfield v Burniston (1961) 111 L Jo 696; Luton v Tinsey (1978) 249 EG 239, CA.

147[1971] 1 All ER 1042.

148See Meatyard v Nutland [2010] ALT SW/1/1149.

149Avon County Council v Clothier (1977) 75 LGR 344, CA.

150Brown v Tiernan [1993] 1 EGLR 11.

151See Boyce v Rendells (1983) 268 EG 268, CA; Midgley v Scott (1977) 244 EG 883.

152Scene Estate Ltd v Amos [1957] 2 All ER 325, CA; grazing agreement for three months renewed 21 times without creating a protected tenancy.

153Section 5(1), Agricultural Tenancies Act 1995, above Chapter 4 para 4.07.

154See Short Bros (Plant) Ltd v Edwards (1978) 249 EG 539, CA.

155Scene Estate Ltd v Amos, ibid at 328 Denning LJ; South West Water Authority v Palmer (1983) 268 EG 357, CA; Watts v Yeend [1987] 1 All ER 744, CA.

156[2010] ALT SW/1/1149.

157Gladstone v Bower [1960] 2 QB 384, CA, and see on this point Cox v Husk (1976) 239 EG 123.

158Lampard v Barker (1984) 272 EG 783, CA, (no mention of limited period in correspondence, but rent paid for a full year and stock kept outside grazing season. Held, a protected tenancy had been created.)

159The grounds on which consent was available are no longer of practical importance, as this type of tenancy/licence cannot be granted after 1st September 1995. For the grounds on which consent was formerly available, see the joint MAF/WOAD announcement ‘Approval of Short Term Lettings and Licences’ (10th August 1989) and the 1st edition of this work, Appendix 2 at p 384.

160Finbow v Air Ministry [1963] 2 All ER 647.

161See Epsom and Ewell Borough Council v Bell (Tadworth) Ltd [1983] 2 All ER 59 (tenant holding over without signing formal tenancy agreement, Minister having consented to letting of specified land in general terms. Implied tenancy held exempted from s 2 by virtue of the prior consent.)

162[1992] 34 EG 76.

163[1985] 2 all ER 289. And see above para 5.51 ff.

164Or licenses which are gratuitous – but these cannot take effect as protected tenancies under the 1986 Act, s 2, in any event – whether Ministry consent was obtained prior to grant or not.

165(1974) 230 EG 1587.

166These provisions were introduced by the Agricultural Holdings Act 1984 with the aim of introducing flexibility into agricultural tenure by allowing for fixed term tenancies, without security, in appropriate cases. And see Cmnd 7599 (1979) paras 627, 637 and 641 (The Northfield Report).

167Epsom and Ewell Borough Council v Bell [1983] 2 All ER 59.

168Ashdale Land and Property Co Ltd v Manners [1992] 34 EG 76 provides a graphic illustration of the dangers of non-compliance.

169Pahl v Trevor [1992] 1 EGLR 22.

170Jones v Owen (1997) 32 EG 85.

171Ashdale Land and Property Co Ltd v Manners [1992] 34 EG 76.

172Jones v Owen (1997) 32 EG 85.

173[1960] 2 QB 384.

174[1991] 2 EGLR 4 CA.

175see observations of Diplock J. in Gladstone v Bower [1960] 1 QB 170, 180 at first instance, and of Oliver J. in Keen v Holland [1984] 1 All ER 75, 79, CA: ‘it must therefore be assumed that the legislature was content to permit such tenancies to be created free from the restrictions on termination applicable to other agricultural tenancies’ (italics added).

176See above para 5.46 ff.

177Section 36(2)(b), Agricultural Holdings Act 1986.

178[1964] 1 All ER 867, CA.

179[1974] 3 All ER 881, HL.

180See Chapter 4 para 4.07 ff above.

181For a share milking arrangement which validly achieved this object see McCarthy v Bence [1990] 17 EG 78, CA. The arrangement here also fell outside the Agricultural Holdings Act 1986.

182[1985] 2 All ER 289, HL.

183See Duke v Wynne [1989] 3 All ER 130, CA.

184See Antoniades v Villiers [1988] 3 All ER 1058, HL. In McCarthy v Bence [1990] 17 EG 78 the court viewed the ‘relocation clause’ at issue as necessary to the business operation of the landowners holding in toto – as it might be necessary to move the share farmer for good farming or business reasons, and the clause was not therefore a sham (see [1990] 17 EG 78 esp. at 82).

185[1990] 1 EGLR 1.

186See also Dresden Estates Ltd v Collinson [1988] 55P & CR47 (business tenancy within Landlord and Tenant Act 1954).

187See Snook v London & West Riding Investments [1967] 2 QB 786; Mikeover Ltd v Brady [1989] 3 all ER 618.

188Share farming is a flexible concept, and individual contracts will vary greatly to suit different cases. For useful precedents see inter alia, A Practical Guide to Share Farming (Country Land and Business Association, CLA 70); Encyclopaedia of Forms and Precedents Vol 2, Forms 154–157, paras [1921]–[1979] (Densham, Laws, Porter and Williams); Precedents for the Conveyancer 1–24 (Crops) and 1–25 (Livestock) (HAC Densham and J N Porter). There is also a useful discussion in Scammell Densham & Williams’s Law of Agricultural Holdings (10th Ed 2015) at paras 21.9–21.15.

189[1964] 1 All ER 867.

190Unless a limited liability partnership is formed (LP) using the powers in the Limited Liability Partnerships Act 2000. These are rarely used in the farming industry.

191For precedents, with explanatory notes, see inter alia Encyclopaedia of Forms and Precedents, Vol 2, Forms 152 & 153, paras [1857]–[1920], and commentary ibid at [1801]–[1802]. (Densham, Laws, Porter and Williams).

192See Brooks v Brown (1985) Conv 320 and further Chapter 8, para 8.49 ff.

193[1962] AC 496.

194See Chapter 7 below.

195Sykes v Land (1984) 271 EG 1264, CA, Harris v Black (1983) 46 P & CR 366.

196Featherstone v Staples [1986] 2 All ER 461, CA. These issues are explored in some detail below, Chapter 7, para 7.138 ff.

197Section 43(1)(a), Landlord and Tenant Act 1954 amended. Also Sch para 10, Agricultural Tenancies Act 1995.

198See above Ch 3 para 3.08 ff (Farm Business Tenancies), Ch 5 para 5.26 ff (Agricultural Holdings).

199Keen v Holland [1984] 1 All ER 75, CA. This point was expressly left open at first instance in Colchester BC v Smith (1991) Ch at 485 (Ferries, J), although Keen v Holland was not cited on this issue. Although undecided, the preferable view from the authorisation is that s 2 applies to a contractual tenancy at will, but not to one that is purely gratuitous. And see Steyning BS v Wilson (1951) Ch at 1020–1022.

200See Cardiothoracic Institute v Shrewdcrest Ltd [1986] 1 WLR 368; Uzun v Ramadan [1986] 2 EGLR 255; Catalyst Communities Housing Ltd v Katana [2010] EWCA Civ 370.

201See Landlord and Tenant Act 1954, s 23.

202Section 38, Agricultural Tenancies Act 1995 (definition of ‘tenancy’).

203See Landlord and Tenant Act 1927, s 17 (amended Agricultural Tenancies Act 1995, Schedule para 5).

204See s 64 ff of the 1986 Act, below Chapter 9 para 9.23 ff (agricultural holdings) and Chapter 4 (farm business tenancies).

205See s 3 of the 1927 Act, which enables the tenant to apply to the court if the landlord refuses permission. Cf the arbitration and tribunal procedures outlined in s 67 of the 1986 Act, and the latter’s differentiation between different types of improvement. The Code for farm business tenancies is somewhat simpler. See Chapter 4 para 4.55 ff above.

206See s 47(1) and (2) of the Landlord and Tenant Act 1954, which in general requires notice within three months of notice to quit or statutory notice of termination under s 25. Cf the notice requirements of the 1986 Act, discussed below Chapter 9 at para 9.04 ff.

207see Landlord and Tenant Act 1954, s 37.

208See Chapter 9 below para 9.48 ff.

209See para 5.19 ff above.

210Russell v Booker (1982) 5 HLR 10 per Slade LJ.

211[1988] 1 EGLR 1, CA (above para 5.19).

212Russell v Booker (1982) 5 HLR 10 CA is an example of this occurring in practice.

213The land would then cease to be ‘agricultural land’ within s 1(4)(a) of the 1986 Act.

214See s 23(2) of the 1954 Act and the well-known formulation by Lord Lindley MR in Rolls v Miller (1884) 27 Ch D 71, 88, CA.

215See Abernethie v Kleiman [1969] 2 All ER 790, CA; Lewis v Weldcrest Ltd [1978] 3 All ER 1226, CA. For application to non-commercial activities see inter alia Addiscombe Garden Estates Ltd v Crabbe [1958] 1 QB 513, CA; Hills (Patents) Ltd v University College Hospital [1956] 1 QB 90, CA; Groveside Properties Ltd v Westminster Medical School (1983) 47 P & CR 507, CA.

216Eg Blackmore v Butler [1954] 2 QB 171, CA where a cottage constituted an agricultural holding in itself.

217See s 10 of the Rent Act 1977 and Sch 1 para 7 of the Housing Act 1988.

218Rent Act 1977, ss 6 and 26; Housing Act 1988, Sch 1, para 6.

219Above para 5.05 ff. (Agricultural Holdings), Ch 3 para 3.05 ff (Farm Business Tenancies).

220As to which see Chapter 11 below.

221See ss 24–26, Housing Act 1988.

222The rule in Bendall v McWhirter [1952] 2 QB 466, CA. And see Pennell v Payne (1995) 2 all ER 592 (upwards notice to quit also terminates sub tenancy).

223See s 9(4), Rent (Agriculture) Act 1976.

224See below Chapter 11 para 11.54 ff.

225Section 137(3) reversed the earlier decision in Cow v Casey [1949] 1 KB 474, CA, where it was held that the forerunner of s 137 only applied where the mesne tenancy was itself a tenancy to which the Rent Act applied. This would, of course, have excluded protection where the mesne tenancy was of an agricultural holding.

226[1975] AC 373.

227See Rent Act 1977, s 99(1). Section 137(3) expressly provides that its protection will only apply ‘if the sub tenancy in question is a protected or statutory tenancy to which s 99 of the [Rent Act 1977] applies’.

228Housing Act 1988, s 34.

229See Housing Act 1988, s 24(3).

230Ie section 6 and Sch 1, para 9 Agricultural Holdings Act 1986, as to which see Chapter 6 para 6.07 ff.

231Cf Maunsell v Olins [1975] AC 373, HL; Pittalis v Grant [1989] 2 All ER 622, CA and s 137(3) Rent Act.

232Section 18(2), Housing Act 1988.

233Cf the difficulties under Rent Act 1977, s 137(3), alluded to above.

234See Sch 2, Grounds 1 to 5 of the Housing Act 1988. This would enable the landlord to invoke Ground 1 and repossess for his own use, for instance, if the tenant had served a notice under Ground 1 at the time of the sub-letting.

235See Sch 1, Ground 1, para (b) of the Housing Act 1988.

236See Chapter 6 para 6.13 ff.

237See the proviso to s 137(3) (above) and Rent Act 1977, s 99(1). Above pxxx.

238As in Darby v Williams (1972) 232 EG 579 CA.

239Above paras 5.101 and 5.103 ff.

240See Protection from Eviction Act 1977, s 1 as amended by Housing Act 1988 ss 25–32.

241See Protection from Eviction Act 1977, s 5.

242See ss 30(3), Housing Act 1988.

243See National Trust v Knipe [1997] 4 All ER 627 CA.