1 Qualifying for Protection

11.44 A tenancy or license will be an ‘assured agricultural occupancy’ if two conditions are satisfied.¹⁰³ For these purposes, any assured agricultural occupancy which is not an assured tenancy, (for example a licence) shall be treated as if it were an assured tenancy and the provisions of Pt I of the Act will apply accordingly.¹⁰⁴

11.45 The two qualifying conditions are:

(a)that the license or tenancy –

(i)is an assured tenancy other than an assured shorthold tenancy.

(ii)the tenancy is not an assured tenancy by virtue only of the fact that it is granted at a low rent or the dwelling is comprised in an agricultural holding and is occupied by the person responsible for the farming of the holding;¹⁰⁷ or

(iii)the occupancy is conferred by a license under which a person has exclusive possession of a dwelling house and which, if it conferred a sufficient interest in land, would be a tenancy falling within (i) or (ii) above. Notwithstanding the House of Lords’ ruling in Street v Mountford¹⁰⁸ many such occupancies will remain licenses, given the grant of exclusive possession, owing to the service occupancy element present; and

(b)the ‘agricultural worker condition’, as defined by Sch 3 to the 1988 Act, must be satisfied for the time being with respect to the dwelling house subject to the license or tenancy.¹⁰⁹ This condition, which is discussed further below, requires that the worker have worked in agriculture for 91 out of the last 104 weeks before protection under the Act applies.

11.46 The assured agricultural occupancy under the 1988 Act is merely a variant of the assured tenancy, which latter is the regime applicable to all private sector lettings after 15 January 1989. This is reflected in the qualifying conditions (above) – the tenancy or license must either be an assured tenancy, or be such that it would be one if the dwelling were not let at a low rent etc. There is no control of rents on fair rent principles, however, and the landlord is free to charge a market rent on commencement of the agreement if he wishes. Previously the amount recoverable by agreement was limited by the 1976 Act.¹¹⁰ If a market rent is now charged, the occupier retains his assured agricultural occupancy under the 1988 Act. This is unlikely to arise in practice, as most farmers make no charge for tied accommodation. Nevertheless, the legal implications of exacting a rent in such circumstances should be appreciated:

(i)if a tenancy is granted to an employee who has not been employed in agriculture for 91 out of the last 104 weeks, then if he is charged a rent of less than two-thirds the ratable value of the property for the time being, or if the dwelling was let on or after 1 April 1990 at less than the relevant rent limit,¹¹¹ he will enjoy no protection under the 1988 Act. He will, however, become an assured agricultural occupant as soon as he has 91 weeks’ qualifying employment (see below).¹¹²The same result ensued under the Rent (Agriculture) Act 1976, leading to the creation of a protected agricultural occupancy once 91 weeks’ qualifying employment has elapsed;

(ii)if tied accommodation is let to an agricultural worker for a rent of more than two-thirds the ratable value of the dwelling, or (if the tenancy was granted after 1 April 1990) at more than £1,000 pa (London) or £250 pa (elsewhere), the full protection of the assured tenancy code under Pt I of the 1988 Act will apply – unless one of the relevant exclusions in Sch 1 applies, so as to prevent an assured tenancy arising.¹¹³ The same employee would, under the old regime, have enjoyed protection under the Rent Act 1977;

(iii)once an employee granted an assured tenancy has completed 91 weeks’ qualifying employment, his interest will cease to be an assured tenancy simpliciter and will become an assured agricultural occupancy.¹¹⁴Although fully protected in the intervening period, the employee will at this point find himself in exactly the same position as an agricultural employee who has paid rent or a license fee ab initio of less than two-thirds the ratable value of the dwelling or less than the rent threshold applicable to lettings after 1 April 1990.

(iv)although a landlord/farmer is in theory free to charge a full rent when letting to an employee, it must be appreciated that the Agricultural Wages Orders formerly limited the amount which may be deducted from an employee’s wages by way of rent. The Orders still apply to regulate the employment terms of farmworkers employed before 1 October 2013, and to the terms of farmworkers in Wales. In the case of farm workers employed in England on or after 1 October 2013, the national minimum wage will apply.¹¹⁷ This means that it is unlikely in practice that an employee will be paying a rent sufficiently large to lead to the creation of an assured tenancy simpliciter – although an assured agricultural occupancy will in such cases arise once the period of qualifying employment has been completed.