4 Distress for unpaid rent
6.161 Where rent lawfully due remains unpaid, the landlord can at common law enter upon the premises or land and seize goods to the value of the amount outstanding in satisfaction of the debt.292 Distress can, under the general law, be levied for up to six years’ arrears of rent.293 Protective legislation further restricts the landlord’s right to levy distress for unpaid rent.
So, for instance, no distress at all can be levied for unpaid rent of a dwelling let on a protected or assured residential tenancy, without prior County Court approval.294 The Agricultural Holdings Act 1986 adopts a more liberal approach, but nevertheless restricts the amount of rent for which distress can be levied to one year’s unpaid rent, and places restrictions on the distraint of goods and stock in which a third party has an interest.(a)Limitation on rent recoverable by distress
6.162 The landlord of an agricultural holding is not entitled to distrain for rent that became due more than one year before the making of the distress.295 This limitation is relaxed where the ordinary course of dealing between the landlord and tenant of a holding indicates that the payment of rent has, as a matter of course, been deferred until the expiry of a quarter or half year after the date on which the rent legally became due. In this event the rent in question shall be deemed to have become due on the expiry of that quarter or half year, and not on the date on which it legally became due. Where the amount of any compensation due the tenant has been ascertained prior to the landlord levying distress, whether under the 1986 Act or by custom or agreement, the amount of that compensation can be set off against unpaid rent. In this event the landlord is not entitled to distrain for more than the balance.296
(b)Property and Livestock subject to third party interest
6.163 Section 18(1) of the 1986 Act places additional restrictions on distress where property or livestock present on the holding is owned by a third party.
No distress can be levied on property which is agricultural or other machinery, and which is on the holding under an agreement with the tenant for its use or hire in the conduct of his business. Where livestock belonging to a third party is on the holding, it cannot be distrained upon at all if present ‘solely for breeding purposes’,297 eg rams or bulls on hire to the tenant. ‘Livestock’ is widely defined for this purpose to include ‘any animal capable of being distrained’.2986.164 Special rules apply to agisted stock viz. stock that has been taken in by the tenant on contract to be fed at a fair price. Agisted livestock cannot be distrained for rent where there is other sufficient distress to be found on the holding, and if distrained (no other sufficient distress being available) the landlord cannot recover by that distress any sum exceeding the amount of the unpaid price agreed for feeding the stock, or any part of that price which remains unpaid.299 The rightful owner of the agisted stock has the right to redeem it prior to sale by paying the landlord an amount equal to the price agreed for feeding it.300 Payment by the owner of the sum agreed for feeding under the contract of agistment acts as a full discharge, as against the tenant, of any sum owing under the contract.
6.165 Disputes as to distress are referable to the county court, or a court of summary jurisdiction, to determine the matter.301 This jurisdiction specifically covers any dispute as to the legality of the distress levied, the ownership of stock distrained, or the fair price agreed for feeding agisted stock, and (generally) ‘any other matter or thing relating to a distress on an agricultural holding’. The tenant’s other remedies in the general law – for instance as to trespass to goods – remain unaffected. The court has jurisdiction under the 1986 Act to order restoration of livestock or goods unlawfully detained, can declare the price to be paid for feeding agisted stock, and can make any other order it deems necessary.
Appeal lies from the County Court to the Court of Appeal on a point of law302 and to the Crown Court from a decision of a summary jurisdiction.303
1As to which see Chapter 2 para 2.26 ff, and in detail below Chapter 15 para 15.11 ff.
2See Chapter 3 para 3.36 above.
3Law of Property Act 1925, s 54(2).
4Law of Property (Miscellaneous Provisions) Act 1989, s 2(1).
5Section 2(5)(a) of the 1989 Act exempts from the application of s 2(1) ibid. a contract to grant a short lease of the kind mentioned in Law of Property Act 1925, s 54(2). This would include a contract to grant an annual periodic tenancy of agricultural land.
6Agricultural Holdings Act 1986, s 6(1).
7Ibid, Sch 1 para 9.
8The arbitration was previously governed by the discrete code in Agricultural Holdings Act 1986, Sch 11. This was repealed by Regulatory Reform (Agricultural Tenancies) (England and Wales) Order 2006, SI 2006/2805, reg 9, with effect from 19 October 2006.
9Section 6 (1A) ibid, inserted by Deregulation Act 2015, Sch 4, paras 1, 3(1), 3(2).
10Section 6(3) ibid.
11Agricultural Holdings Act 1986, s 6(4).
12Cf s 8(4) ibid; CF Hollings v Swindle (1950) 155 EG 269, which is no longer sound law.
13Church v Brown (1808) 15 Ves 258.
14As to which see Chapter 8 below.
15see s 6(5)(a) of the 1986 Act: where there is an oral agreement which permits assignment this will be inconsistent with the provision in Sch 1, para 9, and will therefore exclude the statutory bar on assignment set out in s 6(5) and discussed above.
16Agricultural Holdings Act 1986, s 6(6).
17See s 6(5)(b) ibid.: ‘Where in respect of a tenancy of an agricultural holding – (b) the landlord requests the tenant in writing to enter into such an agreement……the tenant may not without the landlord’s consent in writing assign, sub let or part with possession of the holding or any part of it etc.’ (emphasis added).
18See the wording of Agricultural Holdings Act 1986, s 6(6): ‘The period [of the statutory bar on assignment etc.] is …the period ending with the date on which an agreement is concluded in accordance with that request or (as the case may be) with the date on which the award of an arbitrator on a reference under this section relating to the tenancy takes effect’...
19cf Old Grovebury Manor Farm Ltd v W Seymour Plant Sales and Hire Ltd (No 2) [1979] 3 All ER 504, CA; Fuller v Judy Properties Ltd [1991] 2 EGLR 41.
20Agricultural Holdings Act 1986, s 6(2)(b).
21Landlord and Tenant Act 1927, s 19(4).
22[1986] Ch 513, CA.
23For an example see Ansa Logistics Ltd v Towerbeg Ltd [2012] EWHC 3651 (Ch); [2013] 2 EG 67 (CS).
24See Proxima GR Properties Ltd v McGhee [2014] UKUT 59 (LC) for a discussion of the principles applicable where the reasonableness of a fee charged by the landlord for consent is at issue. Whether a fee is ‘reasonable’ will depend on the work actually involved in any specific case ie the work required to deal with the particular application.
25Landlord and Tenant Act 1988, s 1(3).
26It also reverses the common law rule, which previously placed the burden on the tenant to demonstrate that the landlord is acting unreasonably: Shanly v Ward (1913) 29 TLR 714.
27Landlord and Tenant Act 1988, s 4.
28as to which see Ch 3 para 3.44 above.
29Agriculture Act 1958, s 10(1), Sch 2, Part I.
30See Sch 3 Part I to the Agricultural Holdings Act 1986.
31See s 11(1) of the 1986 Act.
32see ibid, s 27(3)(a).
33Under ibid. s 27(3)(b).
34Agriculture Act, 1947, s 10.
35SI 1973/1473 and SI 2015/950, discussed below at para 6.70.
36Agriculture Act, 1947, s 11.
37Williams v Lewis [1915] 3 KB 493.
38Agricultural Holdings Act 1986, s 14(2).
39Section 14(4) and (5) ibid.
40Section 15(5) ibid.
41Section 15(6) ibid.
42See s 82(1) of the 1986 Act.
43See s 15(7) ibid.
44See s 15(1)(a) ibid.
45Section 20(2) ibid.
46Section 20(3) ibid.
47Section 22(3) ibid.
48Section 22(2) ibid.
49See SI 1973/1473, Sch, para 4(2); SI 2015/950 (para 6.90 below).
50Discussed above at para 6.19 ff.
51Dow Agrochemical Ltd v E A Lane (North Lynn) Ltd (1965) 192 EG 737, CA; Paddock Investments Ltd v Lory [1978] EGD 37.
52See Agricultural Holdings Act 1986, s 60(6), and s 70(2).
53[1951] 1 All ER 890.
54[1939] Ch 382.
55For the latter see s 78(1) of the 1986 Act.
56See Scala House and District Property Co Ltd v Forbes [1974] QB 575, CA; Troop v Gibson [1986] 1 EGLR 1, CA.
57[1986] 1 EGLR 1, CA.
58See generally Amalgamated Investment and Property Co Ltd v Texas Commerce International Bank Ltd [1982] QB 84.
59Worboys v Carter [1987] 2 EGLR 1, CA.
60Lam Kee Ying Sdn. Bhd. v Lam Shes Tong [1975] AC 247, esp. at 255–256.
61In Akici v LR Butlin Ltd [2005] EWCA Civ 1296, [2006] 2 All ER 872 (see especially Neuberger LJ, Judgement at para 67) the court of appeal held that the distinction must also be applied to the construction of clauses against sharing possession, which must not be viewed as synonymous with merely sharing physical occupation of premises. In so doing they disapproved dicta to the contrary in the earlier decision in Tulapam Properties Ltd v De Almeida [1981] 2 EGLR 55; see [2005] EWCA Civ 1296 judgment at paras 27 ff (Neuberger LJ.). And see Clarence House Ltd v National Westminster Bank plc [2009] EWCA Civ 1311.
62Although it should be appeciated that most well drafted share farming agreements will provide for shared ‘occupation’ rather than shared possession in the legal sense: see further Chaper 5 para 5.77 ff.
63[1997] 2 EGLR 1 CA.
64Cook v Shoesmith [1951] 1 KB 752, CA.
65Field v Barkworth [1986] 1 All ER 362, approved obiter in Troop v Gibson [1986] 1 EGLR 1, 3, CA.
66Section 146(4) of the Law of Property Act 1925.
67(1980) 260 EG 281.
68[1951] 1 ALL.ER 890.
69Per Ewbank J at (1980) 260 EG 281, 283, adopting Scammell and Densham’s Law of Agricultural Holdings (6th ed) at p 132 to the effect that it would be illogical were the same rule not to apply to both short notice and forfeiture clauses.
70For instance if the holding has been notified as a Site of Special Scientific Interest under the Wildlife and Countryside Act 1981, or if the tenant wishes to enter the Countryside Stewardship Scheme in England, or the GlasTir agri-environment scheme in Wales.
71See Agricultural Holdings Act 1986, Sch 3, para 10(1)(d), para 11(2).
72See generally Lloyds Bank Ltd v Jones [1955] 2 QB 298, CA.
73Sumnal v Statt (1984) 49 P & CR 367, 375, CA per Cumming-Bruce LJ.
74Lloyds Bank Ltd v Jones [1955] 2 QB 298, 324, CA per Jenkins LJ.
75Sumnal v Statt (1984) 49 Pd CR 367 CA.
76Sumnal v Statt (1984) 49 P & CR 367, 377, CA.
77SI 2015/950, which came into force on 1 October 2015 and see Appx 3 below.
78SI 1973/1473 as amended. See further below at para 6.70 ff.
79See Burden v Hannaford [1956] 1 QB 142 CA.
80SI 1948/184.
81SI 1973/1473 as amended. See further below at 6.70 ff.
82SI 2015/950, which came into force on 1 October 2015.
83For a discussion of the substantive changes introduced by the 1973 regulations, for instance, see (1974) 118 So Jo 266 (Muir Watt).
84Consider, for example, the imposition of full repairing obligations on the tenant (a clear departure from the model clauses). The statutory presumption is that the model clauses represent the starting point for considering the repairing obigations between the parties to the tenancy. Arbitration under s 8 is arguably an underused procedure in practice.
85See Chapter 2 para 2.26 ff.
86See Puncknowle Farms Ltd v Kane [1985] 3 All ER 790.
87SI 2005/465, reg 9.
88This would have given a right to give notice to quit under Case E to Sch 3 to the 1986 Act: as to which see Chapter 7 para 7.113 ff below.
89That is, pursuant to Cases D or E to Sch 3 to the 1986 Act, as to which see Chapter 7 para 7.86.
90[1987] 2 EGLR 12 (Dairy Produce Quota Trib). The Tribunal held that the Dairy Produce Quota Regulations did not establish a scheme for regulating the marketing of milk, but instead imposed a levy on disposals of milk products to curb the growth of milk production: [1987] 2 EGLR 12, 14.
91See for example Cardwell, M., Milk Quotas: European Community and United Kingdom Law (Clarendon Press Oxford 1996); Scammell and Densham’s Law of Agricultural Holdings (9th ed. 2007, PR Williams) Chapter 49; Muir Watt and Moss, Agricultural Holdings (14th edition 1998) Chapter 18. And see the 3rd editon of this work, Chapter 16.
92See Chapter 15 para 15.22 ff.
93For example as in Lee v Heaton [1987] 2 EGLR 12, above para 6.53.
94[2009] EWHC 2023 Ch. The share-farming contract in this case had also come to an end before the payment entitlements awarded to the farmer came into effect under the single payment scheme.
95Agricultural Holdings Act 1986, s 11.
96Ibid, s 7.
97Ibid, s 10.
98ibid, s 96(1).
99SI 2010/639. Below Chapter 14 para 14.27 ff.
100Agricultural Holdings Act 1986, s 11(2).
101See s 11(2) ibid.
102Section 11(3)(a) ibid.
103Section 11(4) ibid.
104Section 11(3)(b) ibid.
105Section 11(6) ibid.
106See s 11(7) ibid.
107SI 2015/950.
108See SI 2015/950, reg 2(1).
109SI 1973/147. The 1973 Regulations were amended by the Agriculture (Maintenance, Repair and Insurance of Fixed Equipment) (Amendment) Regulations 1988, SI 1988/281, effective from 24 March 1988. And see articles at (1973) 227 Estates Gazette 767 and (1974) 118 Sol J 266 (Muir Watt).
110See further Chapter 3 para 3.75 ff above.
111Agricultural Holdings Act 1986 s 7(3) (emphasis added).
112Ibid, s 8.
113See Agricultural Holdings Act 1986, s 8(3).
114Section 8(6) ibid.
115Ie one made under ss 6 or 8 ibid.
116Sections 9(2) and 71 ibid.
117As has occurred in England from 1 October 2015 under SI 2015/950.
118Section 9(4) ibid. and Agriculture (Time Limit) Regulations 1988, SI 1988/282, reg 2. Clearly, s 9(4) is of sporadic importance, remaining dormant in the intervals between the issue of fresh regulations.
119[1956] 1 QB 142, CA and see [1956] JPL 15 (J Muir Watt).
120See s 7(3) ibid.
121For a good example of this pitfall see Roper v Prudential Assurance Co Ltd [1992] 1 EGLR 5. The tenants express repairing obligations here extended to ‘electrical wiring’ in the context of general obligations to repair and maintain the farmhouse, cottages and buildings on the holding. ‘Repair’ was held in this context to include replacing the existing electrical wiring and installations in the farmhouse – an obligation which para 5 of the model clauses places on the landlord where wiring is in need of replacement due to age (and not the neglect of the tenant). Liability therefore fell exclusively on the tenant, reversing the model clause liability for replacement (which falls to the landlord). The court described the terms of the lease as ‘idiosyncratic’ and showed signs of repeated redrafting. Clearly, care needs to be taken to endure the model clauses are not excluded in error, as they were (apparently) here.
122SI 19731473, Sch, Pt 1.
123See Landlord and Tenant Act 1985, s 11. This implies a covenant on the part of the landlord to keep the structure and exterior of the property in repair, as well as installations for the supply of water gas and electricity. Although section 11 does not apply to property let as an agricultural holding, it does apply to imply terms into any tenancy of a farm cottage let on a protected or assured agricultural occupancy: Rent (Agriculture) Act 1976, Sch 5, para 6 (1) and (2); Landlord and Tenant Act 1985, s 13 (1). And see Chapter 11 below.
124Ibid, s 14(3).
125SI 1973/1473, Sch, para 1(1).
126Ibid, para 3.
127Schedule, para 1(2) ibid.
128Schedule, para 4 ibid.
129See Roper v Prudential Assurance Co Ltd [1992] 1 EGLR 5.
130SI 1973/1473, Sch, para 5.
131See Sch, paras 6(1) and (2) ibid.
132Evans v Jones [1955] 2 All ER 118, CA.
133[1955] 2 All ER 118, 123, per Evershed MR.
134SI 1973/1473, Sch, para 7.
135Ibid, Sch, para 8, amended by SI 1988/281.
136Sch, para 11(1) ibid.
137Consultation on modernizing the repair and maintenance of fixed equipment and end-of-tenancy compensation in relation to agricultural tenancies in England (DEFRA, July 2014). Available at: https://consult.defra.gov.uk/ahdb-sponsorship-and-agricultural-tenancies/consultation-on-modernising-agricultural-tenancies/supporting_documents/Consultation%20document.pdf.
138See ibid at para 2.4.2.
139Ibid, para 2.4.3.
140Ibid, para 2.4.5.
141SI 2015/950, Sch 1, para 1(1).
142SI 2015/950, Sch 1, para 1(2).
143SI 2015/950, Sch 1, para 1(3).
144SI 2015/950, Sch 1, para 1(4).
145SI 2015/950, Sch 1, para 1(5).
146SI 2015/950, Sch 1, para 2(1) and (2).
147SI 2015/950, Sch 1, para 2(3). Recovery is otherwise governed by Sch 1, para 7, as to which see below para 6.92.
148SI 2015/950, Sch 1, para 3.
149SI 2015/950, Sch 1, para 4.
150SI 2015/950, Sch 1, para 7(1).
151Ie as executed under SI 2015/950, Sch 1, para 3 (above).
152SI 2015/950, Sch 1, para 7(3), (4).
153SI 2015/950, Sch 1, para 9(1).
154But excluding switches that are part of consumer boards.
155SI 2015/950, Sch 1, para 9(2).
156SI 2015/950, Sch 1, para 9(3).
157SI 2015/950, Sch 1, para 11.
158SI 2015/950, Sch 1, para 12.
159SI 2015/950, Sch 1, para 13; SI 1973/1473, Sch, para 12(3).
160SI 2015/950, Sch 1, para 14(3); SI 1973/1473, Sch, para 12(1).
161See SI 1973/1473, Sch, para 4(2), (3).
162SI 2015/950, Sch 1, para 5.
163SI 2015/950, Sch 1, para 7(3), (4).
164SI 1973/1473, Sch, para 15.
165SI 2015/950, Sch 1, para 17.
166[1971] 3 All ER 1099.
167See Jeune v Queens Cross Properties Ltd [1974] Ch 97.
168[1994] 1 All ER 307.
169(1990) 1 EGLR 6 CA.
170(1990) 1 EGLR 6, 10.
171Where the 2015 model clauses apply the tenant can recover the reasonable cost of executing the replacements or repairs, with a limit of £2000 in the case of damaged water underground water pipes in the case of each item (SI 2015/950, Sch 1, para 14(3).
172[1993] 2 All ER 673.
173[1993] 2 All ER 673 at 682.
174See (1993) 2 EGLR 8.
175See SI 1973/1473, Sch, para 13; SI 2015/950, Sch 1, para 15(1). In a dispute under the 2015 model clauses the matter can in the alternative be referred for third party determination.
176(1802) 3 East 38.
177Wardell v Usher (1841) 3 Scott NR 508; Mears v Callender [1901] 2 Ch 388. For a recent illustration of the application of this principle see Peel Land and Property (Ports No 3) Ltd v TS Sheerness Steel Ltd [2013] EWHC 1658 (Ch).
178The comparable rules for farm business tenancies under the Agricultural Tenancies Act 1995 are somewhat more liberal: see Ch 4 para 4.48 ff above.
179Agricultural Holdings Act 1984, Sch 3, para 6.
180Agricultural Holdings Act 1986, s 10(8).
181See s 10(2) ibid.
182Section 10(3)(b) ibid.
183See s 10(5) of the 1986 Act.
184Section 10(4) ibid.
185See Chapter 4 para 4.54 above.
186[1920] 2 Ch 17.
187Cf also Mears v Callender [1901] 2 Ch 388.
188[1980] AC 37, 58 B-D per Lord Hailsham.
189See [1980] AC 37 at 44–5, 58.
190The governmental view at the time was apparently that the rent formula introduced in 1984, and now set out in Sch 2 to the 1986 Act, merely expressed in statutory form the existing practice of arbitrators, without radical change: See inter alia Parl Debs (HL) Vol 444, Col 781 ff and Parl Debs (HC) Vol 55, Col 859 ff.
191Deregulation Act 2015, s 110(3)(a), Sch 4.
192See Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184.
193Regulatory Reform (Agricultural tenancies) (England and Wales) Order 2006, SI 2006/2805.
194Article 9, SI 2006/2805. This provision did not affect any arbitration that had already commenced before the 2006 Order came into effect on 19 October 2006.
195Agricultural Holdings Act 1986, s 12(4).
196See ibid s 25 as to the length of notice to quit, and above Chapter 7 para 7.10 ff.
197Section 12(4) ibid.
198See Agricultural Holdings Act 1986, s 3 above Chapter 5 para 5.46 ff.
199(1984) 271 EG 373, CA.
200See per May LJ, (1984) 271 EG 373.
201[1986] 2 EGLR 8.
202Albeit at first instance, per Judge Barr.
203[1974] QB 488, CA.
204Lester v Ridd [1989] 1 All ER 1111, CA.
205See Jenkin R Lewis & Son Ltd v Kerman [1971] Ch 477.
206(1977) 241 EG 623.
207And see Persey v Bazley (1983) 47 P & CR 37, CA.
208See Stiles v Farrow (1977) 241 EG 623.
209[1989] 1 All ER 1111.
210Agricultural Holdings Act 1986, s 12(2), amended by Regulatory Reform (Agricultural tenancies) (England and Wales) Order 2006, SI 2006/2805, reg 3.
211[1982] 1 AllER 1108 CA, decided under Agricultural Holdings Act 1948.
212See Richards v Allinson (1978) 249 EG 59 (county court); Hannaford v Smallacombe [1994] 1 EGLR 9 CA.
213This provision partly reversed the ruling in Sclater v Horton [1954] 2 QB 1, CA where it was held that the arbitrator’s appointment had to be ‘perfected’ prior to the next termination date of the tenancy specified in the demand for arbitration viz if the ministry had not made an appointment, and the nominated arbitrator had not accepted appointment, before this date, then the demand for arbitration lapsed.
214Agricultural Holdings Act 1986, Sch 11, para 1(2).
215See Thompson v Bradley (2006) Birmingham County Court, Case 5BM30506 (Unreported); (2007) Lawtel 15 January.
216In Thompson v Bradley (above, n 2), the next termination date from the demand for arbitration was 28 September 2005. The application therefore had to be made before this date ie on (at the latest) 27 September 2005.The application was faxed by the landlord to the RICS at 5.19 pm on 27 September; the application form and fee was posted by recorded delivery and received by the RICS on 28 September 2005. The RICS had indicated to the landord that they would accept an application by fax with the fee to follow. The application was held to be effective and made before the termination date (28 September), thereby preserving the right to review and satisfying the terms of s 12(3) of the 1986 Act (see HHJ McCahill QC, judgment at para 48).
217Cf Sclater v Horton (supra), and see University College, Oxford v Durdy [1982] 1 All ER 1108.
218Agricultural Holdings Act 1986, s 84(2). This form of wording was retained in the new s 84(2) inserted by Regulatory Reform (Agricultural Tenancies) (England and Wales) Order 2006, SI 2006/2805, reg 7.
219This follows from the Deregulation Act 2015, Sch 4, para 25. And see Scammell, Densham and Williams, Law of Agricultural Holdings (10th ed 2015) at para 29.29.
220Inserted by ibid Sch 4, para 25.
221See Sch 2, para 4(2) ibid.
222Ie under s 8 of the 1986 Act, and either SI 1973/1473 or SI 2015/950: above para 6.63 ff.
223See s 13(1), (3) ibid. If the parties agree an increase in rent following landlords improvements, or other benefit to the landlord, the agreement must be concluded within six months of the works’ completion: see s 13(3) ibid.
224[1991] 1EGLR 9, CA.
225As required by Sch 2, para 4(2)(b) of the 1986 Act.
226See Jelley v Buckman [1974] QB 488, CA; Lester v Ridd [1989] 1 All ER 1111.
227Agricultural Holdings Act 1986, Sch 2, para 6.
228Mann v Gardner [1991] 1 EGLR 9, CA per Nourse LJ.
229[1991] 1 EGLR 9 CA per Purchas LJ.
230[2003] EWCA Civ 784.
231The argument is complex, but the addition of land will by operation of law always effect an implied surrender and regrant – for the purposes of statutory construction of Sch 2, para 6 the key point was that the parties intended the addition to operate only as a variation of the existing tenancy. They were unaware of the implied surrender by operation of law, and executed a memorandum expressly continuing the terms of the original tenancy with the addition of the small area of land added to the tenancy.
232This provision was added by Regulatory Reform (Agricultural Tenancies) (England and Wales) Order 2006, SI 2006/2805, reg 8.
233Agricultural Tenancies Act 1995, s 4(1)(g). See Chapter 3 para 3.34 above.
234This would otherwise bar a rent review for 3 years from the date of regrant of the tenancy. For an example see Secretary of State for Defence v Spencer [2012] EWCA Civ 1368.
235Agricultural Holdings Act 1986, Sch 2, para 7(3).
236Sch 2, para 7(1) ibid. The new tenancy must also be one to which Agricultural Tenancies Act 1995, s 4(1)(g) applies, as to which see Chapter 3 para 3.34 above.
237Sch 2, para 7(2) ibid.
238Sch 2, para 1(1) of the 1986 Act.
239See generally Trustees of JW Childers WT v Ankers [1996] 1 EGLR 1.
240On the notion of the ‘willing’ lessor or lessee see, further, observations in F R Evans (Leeds) Ltd v English Electric Co Ltd (1977) 36 P & CR 185 (esp at 189–90 per Donaldson J). It was there held that, for purposes of valuing rent, a ‘willing lessor’ must be an abstraction and not the landlord himself – in other words a hypothetical person with the right to demise the premises on a yearly lease, but unafflicted by personal ills such as cash flow problems or importunate mortgages.
241[1996] 1 EGLR 1 CA.
242Notably the first instance decision in Enfield LBC v Pott [1990] 34 EG 60.
243Trustees of JW Childs WT v Ankers [1996] 1 EGLR 1 at 5 (Moritt LJ.).
244Enfield London Borough Council v Pott [1990] 2 EGLR 7 (C) (income from farm shop held ‘a relevant factor’ within Sch 2, para 1).
245[1996] 1 EGLR 1, esp. at 6 (Morritt LJ.).
246(2010) SLC/233/08 (Scottish Land Court); (2012) CS1H 10 (Court of Session).
247Agricultural Holdings (Scotland) Act 1991, s 13 as amended by the Agricultural Holdings (Scotland) Act 2003.
248Including Trustees of JW Childs WT v Ankers [1996] 1 EGLR 1; Metropolitan Holdings Ltd v Finegold [1975] 1 WLR 349.
249Ie tenancies of holdings let under the Agricultural Holdings (Scotland) Act 1991.
250(2012) CS1H 10, at [49].
251See Chapter 15.
252See (2012) CS1H 10, at [79]. If entitlements are rented to the tenant with the land the issue is of course more straightforward and they will be accountable as a relevant factor on rent review.
253(2012) CS1H 10, at [95].
254As to which see Burton v Timmis [1987] 1 EGLR 1, CA.
255See Enfield London Borough Council v Pott [1990] 2 EGLR 7 (C).
256See ibid. [1990] 2 EGLR 7: farm shop income held to be a ‘relevant factor’ for the purposes of Sch 2, para 1.
257Trustees of JW Childs WT v Ankers [1996] 1 EGLR 1, 5 ‘It will be a matter for the arbitrator to determine the weight if any to be attached to the management agreement. As the matter to be determined is the equivalent of actual earning capacity not how the market would have seen it the fact...that the management agreement and the details it contains are normally confidential is immaterial.’ (per Moritt LJ).
258(2010) SLC/233/08 (Scottish Land Court); (2012) CS1H 10 (Court of Session).
259The valuation posited at first instance in Morison-Low v Paterson allowed for a rental of £6.50 an acre for naked land rented to unlock the payments, plus a further rental value of £2.50 to account for the additional costs associated with maintaining the land in good agricultural condition.
260(2012) CS1H 10 at [76] (Court of Session).
261Agricultural Holdings Act 1986, Sch 2, para 1(1).
262Sch 2, para 1(3) ibid.
263Sch 2, para 1(3)(a) ibid.
264See (2012) CS1H 10, at [55].
265See for example the comments made by Lord Belstead in the House of Lords during the passage of the 1984 Act: Hansard HL Vol 447 at col 1009.
266[1996] 1 EGLR 1.
267This proposition is strongly supported by the decision in 99 Bishopsgate v Prudential Assurance (1984) 270 EG 950 (Lloyd J); affd [1985] 1 EGLR 72, CA.
268See Aberdeen Endowments Trust v Will 1985 SLT (Land Ct) 23, decided on Agricultural Holdings (Scotland) Act 1948, s 7.
269[1996] 1 EGLR 1.
270See (2012) CS1H 10, at [95]: ‘the principle is different where the holding under review offers marriage value to local farmers. If there is reliable evidence that an open market letting of the subject holding would attract a premium element by reason of such marriage value, that element must be taken into account’.
271For the valuation provisions on rent review under the 1995 Act see Chapter 3.
272[1995] 2 EGLR 80.
273[1997] 4 All ER 842, CA. See also the earlier case of BTE Ltd v Merseyside and Cheshire Rent Assessment Committee (1991) 24 HLR 514.
274Rent Act 1977, s 70(2).
275It was accepted in Spath Holme, and confirmed in Curtis, that if there is in fact no scarcity, then in theory the fair rent should equal a market rent.
276See Agricultural Holdings Act 1986, s 1(1): ‘agricultural holding means the aggregate of the land. …comprised in a contract of tenancy which is a contract for an agricultural tenancy etc.’. A farm business tenancy will clearly be a contract of tenancy filling this description, albeit one to which the Agricultural Holdings Act 1986 does not apply – see s 4, Agricultural Tenancies Act 1995.
277See Rent Act 1977, s 70(1)–(3).
278Although it, is of course the method most commonly used, and usually the most appropriate. And see Mason v Skilling [1974] 1 WLR 1437.
279Agricultural Holdings Act 1986, Sch 2, para 1(1), para 6.14.2 above.
280(1979) 39 P & CR 300.
281Agricultural Holdings Act 1986, Sch 2, para 2(3).
282Ibid, Sch 2, para 2(4).
283Ibid, Sch 2, para 2(1)(b).
284Ibid, Sch 2, para 3(a).
285Ibid, Sch 2, para 3(b).
286For example Scammell & Densham’s Law of Agricultural Holdings (9th edition, 2007) at 25.46.
287(1984) 271 EG 373, CA. See para 6.114 above.
288[2008] EWHC 3100 (Ch) (Lewison J). The decision in Plumb Bros. v Dolmac (Agriculture) Ltd (1984) 271 EG 373, CA was relied upon as the only direct authority of relevance: obiter dicta of Morritt LJ. in Trustees of JW Childs WT v Ankers [1996] 1 EGLR 1 were felt to be of little assistance. See [2008] EWHC 3100 (Ch) at [45], [46].
289‘The VAT is simply part of the global price for occupation of the land, and its fiscal consequences do not affect its character. So far as the tenant is concerned, he can deduct the VAT element of the rent from his own output tax at the end of the quarter; and he can deduct the rest of the rent from his profits at the end of the year before paying his income tax. This is simply a difference in the machinery for accounting for tax. It does not, in my judgment, mean that different characteristics should be attributed to different parts of the rent’: [2008] EWHC 3100 (Ch) at [51] (Lewison J.).
290Agricultural Holdings Act 1986, Sch 2, para 4(2)(d) inserted by Finance Act 2009, s 79(1).
291[2008] EWHC 3100 (Ch) (Lewison J.). The decision in Plumb Bros. v Dolmac (Agriculture) Ltd (1984) 271 EG 373, CA was relied upon as the only direct authority of relevance: obiter dicta of Morritt LJ. in Trustees of JW Childs WT v Ankers [1996] 1 EGLR 1 were felt to be of little assistance. See [2008] EWHC 3100 (Ch) at [45], [46].
292For detailed consideration see, inter alia, Woodfall’s Law of Landlord and Tenant (28th ed) Vol 1 pp 317–404 and Hill and Redman’s Law of Landlord and Tenant (18th ed) Vol 1, A781– A889.
293Limitation Act 1980, s 19.
294See Rent Act 1977, s 147, Housing Act 1988, s 19.
295Agricultural Holdings Act 1986, s 16(1).
296Agricultural Holdings Act 1986, s 17.
297Section 18(1)(b) ibid.
298Section 18(5) ibid.
299Ibid, s 18(2).
300Ibid, s 18(3).
301Ibid, s 19.
302County Courts Act 1984, s 77.
303See Agricultural Holdings Act 1986, s 19(2).