2 Protective legislation – principles of protection
1.20 In policy and approach the agricultural holdings legislation differed from other statutory codes of protection (such as the Rent Act 1977 and Landlord and Tenant Act 1954) in significant respects.
The 1986 Act put in place a comprehensive framework providing for security of tenure, regulation of the terms and conditions of the tenancy (eg, as to maintenance of fixed equipment) and for the payment of compensation to tenants for improvements and disturbance. The following distinguishing features should be noted:(a)Obligations of Landlord and Tenant
1.21 With a few exceptions, the 1986 Act does not intervene directly to modify the agreement reached between landlord and tenant. The 1986 Act only overrides the terms of the tenancy if the latter abrogates certain basic rights – principally to allow a tenant to vary permanent pasture, and giving him freedom to dispose of the crops and produce of the holding.28 The 1986 Act puts in place a comprehensive framework of rights and liabilities as to fixed equipment (the ‘model clauses’) and Schedule 1 lists basic terms that can be incorporated into the tenancy. Incorporation is not automatic, however, as either party must request an agreement in the Schedule 1 terms and then invoke the arbitration machinery to compel ‘incorporation’.29 Similarly, the ‘model clauses’ as to fixed equipment do not apply if the tenancy makes contrary provision – although the arbitration machinery can be invoked to bring the tenancy into harmony with the statutory standards in appropriate circumstances.30 In like vein, although s 12 and Schedule 2 provide a comprehensive framework for the regulation of agricultural rents, control on statutory lines can only be achieved by one of the parties invoking the rent arbitration machinery by serving an appropriate demand for arbitration.
(b)Security of Tenure
1.22 The 1986 Act also differs from other protective landlord and tenant legislation in that security of tenure is not conferred irrespective of the tenant’s own volition. The Act places extensive control on a landlord’s ability to repossess tenanted land, but this protection will only apply if the tenant invokes it by serving the appropriate counter-notice after receiving a notice to quit.31 If he chooses not to do so, the landlord can re-possess unhindered by the requirement to prove compliance with the Cases for Possession, or the other requirements of the Act – in this the legislation differs markedly from the Rent Act 1977 and Housing Act 1988.32
1.23 If anything, the legislative technique adopted by the 1986 Act is most similar to that employed by the Landlord and Tenant Act 1954, applicable to business tenancies. Like the latter, the 1986 Act statutorily continues a tenancy on expiry, in this case as a tenancy from year to year.33 This is a contractual tenancy conferring rights in rem, unlike the Rent Act statutory tenancy, and as such it can be assigned or sub-let as a whole, can be devised by will, and will vest in personal representatives on intestacy. Likewise it will vest in a trustee on bankruptcy. To avoid the undesirable consequences of this approach, the Act contains provisions limiting security of tenure to the tenant’s lifetime (subject to succession rights) and removing security where the tenant is declared bankrupt.34 Unlike the Rent Act statutory tenancy, mere cesser of occupation will not per se bring a protected annual tenancy to an end. The 1986 Act differs from the business tenancy code in one important respect, however. The Landlord and Tenant Act 1954 prescribes a statutory mode of terminating business tenancies.35 The Agricultural Holdings Act, on the other hand, leaves intact the landlord’s common law right to serve notice to quit. Security of tenure is then provided by Part III of the Act, which places restrictions on the operation of notices to quit – principally by requiring the landlord to obtain the consent of an agricultural land tribunal or (where the Cases for Possession are applicable) an arbitrator’s award upholding the notice to quit.
These restrictions only apply, however, if the tenant challenges a notice to quit by serving the appropriate counter notice.(c)Compensation on Termination of Tenancy
1.24 The 1986 Act also gives the tenant important rights to claim compensation for long- and short-term improvements made to the holding, and for disturbance. The voluntary approach is maintained here also, however, in that these claims are only available if the tenant serves notice of claim on the landlord, within the statutory time limits following termination.
1.25 The provisions of the 1986 Act are therefore mostly facilitative in nature, and not regulatory – the Act confers extensive rights on both landlord and tenant, and puts in place a statutory framework within which the relationship of landlord and tenant can be regulated. These rights can only be invoked, however, by the parties serving notices to trigger application of the statutory provisions. This factor, together with the rigour of the applicable time limits for the service of various kinds of notice, gives the law of agricultural holdings a procedural quality absent in other areas of the law of landlord and tenant.