1 Grazing and Mowing Agreements
5.54 By virtue of s 2(3)(a) a tenancy or licence to occupy agricultural land did not take effect as an annual tenancy under the 1986 Act, if it was ‘made (whether or not it expressly so provides) in contemplation of the use of the land only for grazing or mowing (or both) during some specified period of the year’.
The two essentials of a security-free letting for grazing were, firstly, that the period of let must be for a specified period of less than one year and, secondly, that the contemplated use of the land must be for grazing and/or mowing only (or both). Problems frequently arose where informal and/or oral arrangements were entered into. Not only was the onus of proof on the landlord to bring himself within the section; where the agreement was oral, evidence of what was actually done on the land will be relevant to establish the nature of the letting. If the agreement was in writing, however, the parol evidence rule dictates that the only admissible extraneous evidence will be evidence that the transaction was a ‘sham’.138(a)Period of Let
5.55 The period of let must have been for no longer than 364 days, although it has been held that a period of 364 days exactly will, for these purposes, be a specified period of less than a year.139 An agreement for 365 days will not, however, and will be caught by s 2(1). Hence an agreement ‘from 1 April to 31 March’ will constitute a 365 day let and have been caught by the Act,140 as will an oral agreement evidenced by the payment of a full year’s rent.141 Similarly, an agreement for ‘six months periods’ in fact gives the right to graze for at least two successive periods – being outside s 2(3) this would create a protected yearly tenancy.142 Similarly, a letting of land for grazing for a full year, but on condition that livestock were not grazed during March/April when daffodils are in bloom, was held to be outside the grazing let exception, and to have created a protected tenancy.143 Land is let as agricultural land if let for an agricultural use (here grazing) for the purpose of the tenant’s trade or business, notwithstanding it is simultaneously used for another purpose eg, keeping racehorses or growing flowers.
5.56 Although the period of let should have been clearly expressed, failure to do this was not always fatal, provided the period contemplated by the parties could be ascertained with reasonable certainty, and when ascertained was less than a year. So, if it were only possible to graze the land for part of the year, and this was customary in the locality, the implication will be that it was the contemplation of the parties that the grazier should have had exclusive use of the land only during the period when it could provide food for his stock.144 The period must have been ‘specified’, not exactly defined. Custom and usage will often be important in ascertaining the period of let. In Watts v Yeend145 a let of seasonal ‘grass keep’ was held to be within the exception. It was there held that the court is entitled to take account of Ministry returns made by the landlord, indicating the use of the land for seasonal grazing as evidence that an oral arrangement constituted a seasonal grazing licence. On the same basis, agreements for ‘seasonal lets’, ‘summer grass keeping’ and ‘grass keep’ have been held to be within the exception in s 2(3).146
(b)Contemplated User
5.57 The agreement must have contemplated the use of the land for grazing and/or mowing only, and not some other agricultural purpose. If the agreement contemplated the carrying out of additional acts of husbandry, other than those that are strictly ancillary to the use of the land for grazing for less than a year, this will take the agreement outside s 2(3). So, in Lory v London Borough of Brent147 a grazing agreement pursuant to which the grazier was to plough the land in the interests of good husbandry, on a crop rotation basis, was held to create a protected annual tenancy, for ploughing and the growing of cereal crops over this period could not be said to be ancillary to the use of the land for grazing for less than one year (even if it might put it in good heart for grazing over a longer period).
Similarly, the conversion of land to arable cropping when renewing what had formerly been a grazing agreement, with the landlords consent, would take the land outside the exception and would have created an agricultural holding.1485.58 The inclusion of buildings in a grazing agreement would, similarly, have taken it outside s 2(3), unless the contemplated use of the building(s) was strictly incidental to grazing or mowing, eg for stabling of ponies grazing the land.149 Similarly, if the tenant was allowed to use the land for other purposes while livestock are excluded (eg, by growing daffodils or keeping recreational ponies), then the contemplated user will not be for grazing only during some specified period of the year – unless, on its construction, the agreement can be regarded as two separate agreements.150 Provided, however, the contemplated user at the outset was exclusively for grazing and/or mowing, the fact that the occupier subsequently ploughed the land, and does other acts not contemplated by the agreement, is irrelevant. Provided the parties’ intention at the time of contract was to permit grazing only, subsequent acts cannot alter the nature of the agreement and take it outside the grazing proviso.151
(c)Series of grazing lets
5.59 An exempt grazing agreement could be renewed on successive occasions, provided there was no express or implied understanding that it will be renewed.152 Each agreement must have been a separate grazing let for the requisite period of less than a year, however. It follows that upon the first renewal of the agreement on or after 1 September 1995 the agreement will come within the Agricultural Tenancies Act 1995. The 1995 Act confers no security of tenure, and its provisions as to minimum length of notices to quit do not apply to terms for 2 years or less.153 There is therefore no danger arising from the grant of a short term grazing agreement of creating a protected annual tenancy under the 1986 Act by inadvertence, as previously.
5.60 Where, however, there is a series of grazing agreements pre- and postdating 1 September 1995 there is possibility that a protected annual tenancy may have arisen by virtue of s 2 of the 1986 Act if the court can detect any express or implied understanding, prior to this date, by virtue of which the agreement was to be renewed. If, for example, the parties purported to create an exempt grazing agreement prior to 1 September 1995, but agreed that the grazier could remain in occupation for several years, the correct inference is that the latter was to receive a series of agreements totalling several years. In this event, s 3 will apply to continue the agreement on its expiry as a protected annual tenancy.154 In reality the parties will have had in contemplation grazing for a period greater than a specified period of one year, thus disapplying s 2(3). The parties’ contemplation must be ascertained at the time of contract. If the agreement is in writing, it is only permissible to go outside its terms for the purpose of showing it is ‘sham’, viz. that the parties contemplated a different use of the land, or a different period of let to that expressed (and allowed by s 2(3)).155 So, for example, in Meatyard v Nutland156 some fields were let under a series of grazing lets going back to the 1960s. In the 1980s the landlord permitted some arable use of the fields when renewing the ‘grazing’ let, and this would have taken the land outside the exemption and created a protected tenancy by virtue of s 2. Nevertheless, it was held that any protected tenancy had been surrendered when a new series of grazing lets commenced in 1992, under agreements that expressly did not permit the use of the land for arable crops, and could not be impugned as ‘sham’.
5.61 Where a grazier was granted a tenancy, as opposed to a mere licence, it should be noted that there was an additional possible exclusion of protection if the letting was for grazing for a fixed period of between one and two years.157 In the absence of any implication of ‘sham’, it is only permissible to go outside the written terms of the agreement, and admit extrinsic evidence, where the agreement is silent.158