G AVAILABILITY OF PREMISES FOR TIED LETTINGS

11.81 The broad effect of the statutory provisions for security of tenure for assured tenancies and assured agricultural occupancies is to reinforce the subjection of the tenant’s need for secure accommodation to the policy interest of encouraging the efficient organization of agriculture.

(i)A landlord may have let accommodation to an agricultural employee before 15 January 1989, but at a full rent, thus precluding a protected agricultural occupancy arising. Section 27(2) of the 1976 Act ensures that the landlord is in no less favorable a position by providing that the rehousing provisions (above) apply in cases where a tenancy would constitute a protected occupancy, but does not, solely because granted at a market rent. This provision does not apply where other factors apply to prevent a protected occupancy arising – for example, if the agricultural worker condition is not fully satisfied;

(ii)Where a dwelling has been let with full Rent Act protection, its repossession for use in housing agricultural workers may be possible in two situations. First, Case 16 to Sch 15 to the Rent Act 1977 gives a mandatory ground for possession when a house was at one time occupied by a worker employed in agriculture, but the present tenant (or her husband if a widow) is not and never has been employed by the landlord. Possession can be granted if the landlord proves the house is required for occupation by an agricultural employee. Case 16 can be used, however, only if the tenant was given, at the time of letting, notice in writing that possession might be recovered under this case.

11.82 Case 18 further provides that where the prior occupier was responsible for farming a holding of which the dwelling formed part, and the present tenant has never been employed by the landlord in agriculture, possession can be obtained if the court is satisfied that the house is now required for occupation by some person employed by the landlord in connection with agriculture (for example an agricultural employee). Written notice that possession might be sought under this case must, again, have been given to the tenant at the time of letting. Provisions analogous to Cases 16 and 18 are not available where an assured agricultural occupancy has ben granted on or after 15 January 1989. It follows that a landlord who envisages a need to repossess a farm cottage or farmhouse in order to house farm workers in the future will be well advised to use an assured shorthold tenancy – the only drawback being that either a minimum let of six months will be required or (if a periodic tenancy is granted) that possession will be unavailable for the first six months of the tenancy.¹⁹⁶

1See Rent Act 1977, s 5(1). And to create an Assured Short Hold Tenancy, the rent charged must exceed £250 a year: Housing Act 1988, Sch 24.

2Housing Act 1988, ss 13, 14.

3Skinner v Cooper [1979] 2 All ER 836, CA.

4Whether or not it was at that time a ‘relevant’ licence or tenancy: s 2(1) ibid.

5Section 2(1)(b) ibid.

6Note the contrast with the agricultural worker condition for ‘Assured’ occupancy protection under the Housing Act 1988, which clearly can cease to be fulfilled. See para 11.48 below.

7Rent (Agriculture) Act 1976, s 2(2), (4).

8Ibid, s 2(3) and (4).

9Schedule 2, para 1 ibid.

10See Rent Act 1977, s 2; Housing Act 1988, s 1(1). This formula has been used in successive Rent Acts, and has generated a not inconsiderable body of case law. See, for example, Rodgers, Housing Law: Residential Security and Enfranchisement (Butterworths, 2002) at para 3.16 et seq.

11That is, it is less than two-thirds the rateable value of the dwelling on the relevant date, as otherwise required by Rent Act 1977, s 5, where the tenancy was granted prior to 1 April 1990.

12Rent (Agriculture) Act 1976, Sch 2, para 3.

13Ibid, Sch 2, para 3(3) and (4).

14Rent Act 1977, ss 17, 13, 14.

15Rent (Agriculture) Act 1976, Sch 3, para 3.

161976 Act, s 2(1).

17Schedule 3, paras 4(2) and 12 ibid.

18Schedule 3, para 4(3) ibid.

19For exceptions (ii)–(iv) see Sch 3, para 4(4) ibid.

201976 Act, Sch 3, para 4(5).

211976 Act, Sch 3, paras 1, 5.

22See Agricultural Wages Act 1948, s 5.

231976 Act, Sch 3, para 4(5).

24Schedule 3, para 2(1) ibid.

25Section 2(2) ibid.

26Section 2(2) ibid.

271976 Act, Sch 3, para 11.

28The courts apply a ‘multiple test’ to distinguish between an employment contract and a contract for services, which involves looking at both the degree of control which the employer exerts over the workers work, and the degree to which he is integrated into the employer’s business: see Ready Mix Concrete (South East) Ltd v Minister of Pensions (1978) 2 QB 397.

29Agricultural Holdings Act 1986, ss 1, 96. See further Chapter 5 above at 5.07 ff. Scammel, Densham and Williams Law of Agricultural Holdings (10th ed., 2015, PR Williams) at para 17.8 et seq., and Muir Watt and Moss Agricultural Holdings (14th ed 1998) at para 8.18.

30As to which see Short v Greeves [1988] 1 EGLR 1, CA; (1988) NLJ 329 (Wilkinson); (1988) Conv 430 (Rodgers) and (1988) 14 EG 51 Muir Watt.

31See Agricultural Holdings Act 1986, s 1, General Rate Act 1967, s 26(3); Town and Country Planning Act 1990, s 336(1).

32Lord Glendyne v Rapley [1978] 1 WLR 601, CA.

33McClinton v McFall (1974) 232 EG 707, CA. Cf Dow Agrochemicals Ltd v EA Lane (North Lynn) Ltd (1965) 192 EG 737, CA.

34See Hemens v Whitsbury Farm and Stud Ltd [1987] 1 All ER 430, 436, CA; affd [1988] 1 All ER 72, HL; and see Belmont Farm Ltd v Minister of Housing and Local Government (1962) 13 P & CR 417; Bracey v Read [1963] Ch 88; University of Reading v Johnson-Houghton [1985] 2 EGLR 113; (1986) Conv 275 (Rodgers).

35Cf Jones v Bateman (1974) 232 EG 1392, CA; Wallace v Perth and Kinross Assessor 1975 SLT 118; Gunter v Newtown Oyster Fishery Ltd (1977) 244 EG 140; Cresswell v British Oxygen Co Ltd [1980] 3 All ER 443, CA and other rating decisions.

36See Lord Glendyne v Rapley [1978] 1 WLR 601, CA; Earl of Normanton v Giles (1978) 248 EG 869, CA, also Reeve v Atterby [1978] CLY 73.

37Forth Stud Ltd v East Lothian Assessor [1969] RA 35, 46 per Lord Avondale.

38Hemens v Whitsbury Farm and Stud Ltd (above).

39McPhail v Greensmith (6th August 1987, unreported) Lexis transcript.

40Baird v Newell [11992] CLY 113 (County Court).

41See Durman v Bell [1988] 2 EGLR 117, CA.

42Rent (Agriculture) Act 1976, ss 2(4), 4(1).

43Section 4(1) ibid.

44See Gofor Investments ltd v Roberts (1975) 29 P&CR 366, Duke v Porter [1986] 2 EGLR 101, Brickfield Properties Ltd v Hughes [1987] 20 HLR 108.

45See below.

46Ie pursuant to s 16(3), see below.

47Section 4(1) ibid.

48As in Durman v Bell [1988] 2 EGLR 117, CA. Here the protected tenancy ceased, and statutory tenancy commenced, by operation of law upon the parties impliedly agreeing to a statutory tenancy.

49See below para 11.38 ff. Rent (Agriculture) Act 1976, ss 3, 4.

50Burgoyne v Griffiths [1991] 1 EGLR 14.

51Rent (Agriculture) Act 1976, s 12(7), (9).

52See Rent Act 1977, s 70.

53See Rent (Agriculture) Act 1976, s 15.

54See s 11(3) and (8) ibid.

551976 Act, s 10(2).

56Section 10(3) ibid. If rent was paid under the protected tenancy on a different basis, that will prevail.

57Section 10(5) ibid.

58Rent (Agriculture) Act 1976, Sch 5, para 2.

59Schedule 5, paras 3 and 4 ibid.

601976 Act, Sch 5, para 5.

611976 Act, Sch 5, para 6(1) and (2).

621976 Act, Sch 5, para 7(i) ibid.

63See Durman v Bell [1988] 2 EGLR 117, CA

641976 Act, Sch 5, para 7(2).

651976 Act, Sch 5, paras 8 and 9.

661976 Act, Sch 5, para 10.

671976 Act, Sch 5, para 12(3) and (4).

681976 Act, s 7(2).

69Section 7(3) ibid.

70Section 7(2A) ibid. And see s 7(4) for the court’s power to order a suspension or postponement subject to such conditions as to payment of arrears of rent etc as it thinks fit.

71See further para 11.75 ff below.

72See Sch 4, Case I, paras 2, 3 and 4 ibid.

731976 Act, Sch 4, Case III.

74Schedule 4, Case IV ibid.

75Schedule 4, Cases V and VI ibid.

76Schedule 4, Case VIII ibid.

77Schedule 4, Case X ibid.

78Schedule 4, Case VII ibid.

79Schedule 4, Case IX ibid.

80Schedule 4, Case IX, para 2 ibid. Cf Rent Act 1977, Sch 15, Case 9.

81Rent (Agriculture) Act 1976, s 6(6).

82Schedule 4, Case XI ibid.

83Schedule 4, Case XII ibid.

84Schedule 4, Case XIII ibid.

851976 Act, s 9(2).

86See Part II of Schedule 4 to the Housing Act 1988.

87Section 4(5) ibid.

88As to which see inter alia, Dyson Holdings Ltd v Fox [1976] QB 503, Helby v Rafferty [1978] 3 All ER 1016, Chios Property Investments Co Ltd v Lopez [1988] 05 EG 57.

89Section 4(5B) inserted by Housing Act 1988, Sch 4, para 12.

90Housing Act 1988, Sch 4, para 10.

91(2000) 32 HLR 178 HL.

92[2004] 3 WLR 113.

93See Human Rights Act 1998, s 3.

94The discriminatory effect of the succession provisions, as outlined above, was held to be a breach of Art 14 of the European Convention of Human Rights, which prohibits gender-based discrimination.

95Rent (Agriculture) Act 1976, Sch 4, para 11(b).

96See Housing Act 1988, s 34(1), (4).

97Section 34(1)(c)(i) ibid.

98Rent (Agriculture) Act 1976, s 2(1), Housing Act 1988 s 24(1).

99Rent (Agriculture) Act 1976, Sch 3, para 1; Housing Act 1988, Sch 3, para 2, s 2(1).

100In the example given, protection would have accrued one week after 15 January 1989.

101See s 34(4)(a) of the 1988 Act.

102Ie, s 24(2) and Sch 1, para 1 ibid.

103Housing Act 1988, s 24.

104Section 24(3) ibid.

105See ibid, Part I, Chapter II, ss 20–23. And see generally Rodgers, Housing Law: Residential Security and Enfranchisement (Butterworths 2002) Ch 5.

106Section 22(3) ibid. And see para 11.65 ff below.

107Schedule 1, paras 3, 3A and 7. By virtue of s 24(2)(b) and Sch 1, para 3A (added by SI 1990/434) a tenancy will not be ‘assured’ if entered into after 1 April 1990 and the rent payable is for the time being less than £1000 pa (Greater London) or £250 (elsewhere). If entered into before 1 April 1990 a tenancy will not be assured if the rent for the time being is less than two thirds the rateable value of the dwelling for the time being (Sch 1, para 3(c)).

108[1985] 2 All ER 289, HL.

109Housing Act 1988, s 24(1)(b).

110By virtue of Rent (Agriculture) Act 1976, s 11, any agreed rent is irrecoverable insofar as it exceeds either the registered rent or (if more) one and a half times the ratable value of the dwelling. See para 11.21 ff. above.

111Ie less than 2/3 ratable value; or less than £1000 pa (London) or £250 (elsewhere) if the tenancy is granted on or after 1 April 1990.

112The tenancy will then be within s 24(2)(b) of the 1988 Act viz. it is a tenancy which is not assured solely because Sch 1, para 3 (tenancy at a low rent) is not satisfied. Section 24(1)(b) (agricultural worker condition) will also now be satisfied.

113See Sch 1, paras 6 (letting of land exceeding two acres with dwelling house) and 7 (letting of dwelling house occupied by person controlling farming of agricultural holding).

114This conclusion follows from the interaction of s 24(2)(a) and s 24(1).

115Rent (Agriculture) Act 1976, Sch 2, para 2.

116See below para 11.75 ff.

117See Enterprise and Regulatory Reform Act 2013, Sch 20.

118Housing Act 1988, s 24(1)(a) – ‘the agricultural worker condition is for the time being fulfilled etc.’ (emphasis added).

119Rent (Agriculture) Act 1976, Sch 3, para 1.

120Housing Act 1988, Sch 3, para 3(1).

121Ibid, para 3(2).

122Ibid, para 3(3).

123Ibid, paras 3 and 4.

124See para 11.38 ff above.

125Schedule 3, para 4, Housing Act 1988.

126Ibid, para 5.

127Housing Act 1988, s 24(1)(b) (italics added). And see s 25(1)(a) ibid.

128Rent (Agriculture) Act 1976, s 27, discussed below para 11.75 ff.

129See s 2(1)(a) and (b) ibid.

130Housing Act 1988, s 5(2).

131See 1988 Act, Sch 2, Ground 7 ibid.

132Note that a license that constitutes an assured agricultural occupancy is deemed to be an assured tenancy for the purposes of Part 1 of the 1988 Act.

133Housing Act 1988, s 5(2). The statutory periodic tenancy will not arise if the tenancy was ended by a court order or a surrender.

134Section 5(1) ibid.

1351988 Act, s 5(3)(d).

136Section 25(1) ibid.

137Section 15(1)(3) ibid.

138Section 15(2) ibid., ie Landlord and Tenant Act 1927, s 19 does not apply.

139Section 16 ibid.

140It follows that the parties can, in effect, contract out of the rent control provisions of the 1988 Act by making their own provision for rent review in the tenancy agreement. For the principles of construction applicable to an express review clause see Riverside Housing Association Ltd v White [2007] UKHL 20.

141Section 13(2) of the Housing Act 1988. The notice must be in prescribed form, for which see the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997, SI 1997/194.

142Section 13(2)(b) ibid.

143Section 13(3) ibid.

144Section 13(1)(c) ibid.

145Notice in prescribed form, referring the matter to the Rent Assessment Committee, must be served on the landlord: s 13(4) ibid. For the prescribed form see SI 1997/194 (above n 1).

146Section 13(4) ibid.

147For a detailed discussion of the security of tenure provisions see works on housing law, for example: Rodgers, Housing Law: Residential Security and Enfranchisement (Butterworths 2002) Ch 4.

148See 1988 Act, s 25(2).

149See 1988 Act, s 25(4).

150See s 25(5) ibid.

151Housing Act 1988, s 20(1).

152Panayi v Roberts [1993] 2 EGLR 51.

153See generally Keen v Holland [1984] 1 All ER 75.

154Ie the date on which Housing Act 1996, s 96 came into force.

155These are set out in Sch 2A to the Housing Act 1988, as amended by the Housing Act 1996, Sch 7.

156Ie at a rent greater than £250 pa outside London, or than £1000 pa in Greater London.

157Housing Act 1988, Sch 2A paras 1 and 2 (inserted by Housing Act 1996, Sch 7). These are the principal exceptions whereby an assured tenancy (rather than an assured short hold tenancy) can granted after the commencement of the 1996 Act.

158See obiter dicta in Andrews v Cunningham [2007] EWCA Civ 762.

159Andrews v Cunningham [2007] EWCA Civ. 762. And see Fernandez v McDonald [2003] EWCA Civ 1219 on the strict construction of statutory (as opposed to contractual) requirements (in that case the construction of a notice to terminate an assured shorthold).

160Housing Act 1988, s 21(5) inserted by Housing Act 1996, s 99.

161Housing Act 1988, Sch 2A, para 7(1)(c) and 7(2). And see Vesely v Levy [2007] EWCA Civ 367 on the construction of this exception.

162For the agricultural worker condition see above para 11.47 ff.

163Housing Act 1988, Sch 2A, para 9(2). For the consequences of failing to serve the prescribed notice see Kahlon v Isherwood [2011] EWCA Civ 602. The prescribed notice is to be found in the Assured Tenancies and Assured Agricultural Occupancies (Forms) Regulations 1997, SI 1997/194, Schedule, Form 8.

164See Housing Act 1988, Sch 2A, para 9(2).

165Housing Act 1988, s 5.

166Ibid, s 21(5).

167As amended principally by the Housing Act 1996, s 98 and SI 1997/225, and the Housing and Regeneration Act 2008, ss 299, 325 and Sch 11.

168See Housing Act 1988, s 7(6).

1691988 Act, s 21(1)(b).

170Section 21(2) ibid.

171Section 21(3) ibid.

172Section 21(4)(a) ibid.

173Section 21(4)(b) ibid.

174This was the form of words used by the landlord in Taylor v Spencer [2013] EWCA Civ 1600 (and there held to be effective).

175[2013] EWCA Civ 1600.

176See [2013] EWCA Civ 1600 at [35]: ‘This is perhaps a variant of the principle that if a document admits of two interpretations, one of which makes it valid and the other invalid, the validating interpretation should be preferred’ (Lewison LJ).

1771988 Act, ss 21(3) and 5(1A) ibid.

178See Rules 55.11 – 19 Civil Procedure Rules 1998 as amended.

179See Rule 55.12 ibid.

180Housing Act 1988, Sch 2, Ground 9 (assured agricultural occupancies); Rent (Agriculture) Act 1976, Sch 4, Cases 1 and 2 (protected agricultural occupancies).

181That is, in accordance with the criteria set out in Part III of Schedule 2 to the Housing Act 1988.

182Rent (Agriculture) Act 1976, Sch 4 Cases I and II, above 11.34 ff.

183Rent (Agriculture) Act 1976, s 7(2).

184Section 7(3), 7(2A) and 7(4) ibid.

185See above para 11.33 ff (protected agricultural occupancies); similar considerations will apply if the occupancy is an assured occupancy within the 1988 Act.

186See R v Agricultural Dwelling-House Advisory Committee for Bedfordshire, Cambridgeshire and Northamptonshire, ex p Brough (1986) 282 EG 1542, 1545 per Hodgson J.

187By Rent (Agriculture) Act 1976, s 29.

188Rent (Agriculture) Act 1976, s 28(4).

189See R v Agricultural Dwelling-House Advisory Committee for Bedfordshire, Cambridgeshire and Northamptonshire, ex p Brough (1986) 282 EG 1542.

190Rent (Agriculture) Act 1976, s 28(7).

191See generally R v East Hertfordshire District Council, ex p Dallhold Resources Management (UK) Pty Ltd (1989) 22 HLR 77 (Pill J).

192See Housing Act 1988, s 26.

193(1987) 282 EG 1534.

194For criticism see further Bridge (1988) Conv 457.

195See Springfield Investments Ltd v Bell [1991] 1 EGLR 115 CA.

196See above para 11.66 ff.