2 Arbitration on notices to quit
7.51 By virtue of Art 9 of the Agricultural Holdings (Arbitration on Notices) Order 1987124 (‘the Arbitration Order’) arbitration is available to challenge a notice to quit which is given for one or more of the reasons specified in Cases A, B, D or E to Sch 3.
Legislative policy is to channel purely ‘agricultural’ disputes away from the courts, to be decided by expert arbitrators with specialist skill and knowledge. The tenant can by arbitration contest ‘any question arising under the provisions of s 26(2) of, and Sch 3 to, the 1986 Act relating to any of the reasons so started’, eg whether rent demanded is owing, whether there has been a breach of tenancy as alleged, or any other facts upon which the notice to quit is based. This phraseology (‘any question arising... relating to any of the reasons so stated’) is not sufficiently clear to exclude the jurisdiction of the Court to consider the validity of the notice at common law, eg whether a statement contained in it is fraudulent, rendering the notice to quit invalid and of no effect.125 To invoke an arbitration, however, the tenant must serve a written notice demanding arbitration within one month after service of notice to quit. This period is inflexible, the court having no jurisdiction to extend the time limit, whatever the merits. Note, also, that in the case of a joint vacancy all joint tenants must join in serving the demand.126 There is no prescribed form for the tenant’s demand for arbitration. It must, however, be clear whether the tenants counter notice is given under s 26(1) or s 26(2). A counter notice which refers to s 26(1), instead of demanding arbitration under s 26(2), will be void if given in response to a Sch 3 notice to quit. Similarly, a counter notice which challenges the notice to quit, but without expressly demanding arbitration, will also be ineffective. It is imperative for the tenant to trigger the appropriate challenge to the notice to quit.127 Arbitration is not available to challenge notices to quit under Cases C, F, G or H. The tribunal consent and arbitration procedures being inapplicable, the only mode of challenge open to the tenant in this instance is to challenge the notice at common law, eg on grounds of ambiguity or fraud.7.52 Where the arbitration provisions apply, arbitration is the only avenue available to the tenant to contest the facts on which the notice to quit is based.128 The arbitration will be governed by the Arbitration Act 1996.129 If the tenant fails to challenge the notice by demanding arbitration within the month allowed, he cannot raise matters justiciable by arbitration under Art 9 in later possession proceedings.130 Neither has the court jurisdiction to grant relief against forfeiture if either no arbitration was demanded, or the arbitrator upheld the notice to quit.131