3 Eligibility of the nominated successor
8.79 The eligibility rules mirror those applicable to succession on death, and will only be summarised here. There are several differences between the two succession schemes, however.
One key difference is that there is no provision corresponding to s 41 (applicable on death) enabling the ‘nominated successor’ to apply to be ‘treated’ as eligible if he or she does not fully meet the eligibility test. To be ‘eligible’ a successor must satisfy three criteria:(a)he must be a ‘close relative’ of the retiring tenant. This is defined by s 49(3) in identical terms to the provisions applicable on death (above); and
(b)he must satisfy the ‘livelihood condition’, which requires that in the last seven years the applicant’s agricultural work on the holding be his principal source of livelihood throughout a continuous period of five years (or two or more discontinuous periods amounting to not less than five years).139 The relevant period is to be chosen by the applicant. Following the changes made by the Regulatory Reform Order 2006, the contribution to the applicant’s livelihood of non-agricultural work and work carried out from (but not on) the holding will ‘count’, providing the landlord has given his written approval for the activities concerned.140 The retirement provisions differ from the succession scheme applicable on the tenant’s death in that, whereas under the latter the 1986 Act expressly refers to the seven years immediately preceding the tenant’s death, no end date is stipulated for the seven-year qualifying period in the case of a retirement succession. After some uncertainty141 it was held in Shirley v Crabtree142 that the livelihood condition must be satisfied in respect of the seven-year period ending with the service of the retirement notice, and that once established this qualification cannot be lost. It follows that if the applicant qualifies at the date of the retirement notice, this cannot be impugned if he does not derive his principal source of livelihood from the holding in some or all of the period between the service of the retirement notice and the tribunal’s determination of the application; and
(c)He must not be the occupier of a commercial unit of agricultural land, or if he is, he must occupy it as a licensee only (the occupancy condition).143
8.80 The nominated successor must be an ‘eligible’ person at the date of the giving of the retirement notice, and must continue to be eligible up to the determination of the application by the Tribunal. If, therefore, he occupies a commercial unit of agricultural land, other than as a licensee, this must be disposed of prior to the service of a retirement notice. The livelihood and occupancy conditions are otherwise defined in identical terms to the provisions applicable on death by s 50.144 The anti-avoidance provisions in Sch 6 (discussed above) also apply as on death.145