2 Retirement notice
8.74 The tenant of the holding (or in the case of a joint tenancy all the tenants) may give notice to the landlord indicating that he wishes a single ‘eligible’ person named in the retirement notice to succeed him as tenant of the holding from a specified date.132 The date specified, at which succession is to take place, must be a date on which the tenancy could have been lawfully terminated by notice to quit given at the date of the retirement notice, viz a contractual term date at least twelve months from the date of the notice.133 That date must also be not less than one year, and not more than two years from the date of the notice.
The definition of ‘tenant’ does not include an executor, administrator, and trustee in bankruptcy or other person deriving title from a tenant by operation of law.134 Thus, a person holding a tenancy in any of these capacities (for instance as the executor of a deceased tenant) will not be able to serve a retirement notice.8.75 The right to use the retirement provisions can only be exercised once. If a retirement notice has been served by a retiring tenant, and an application for succession has been made to the Agricultural Land Tribunal by the nominated successor, then a further application for retirement succession cannot be made at a future date.135 In particular, of course, if the tenant serves a retirement notice and his nominated successor is later adjudged to be unsuitable to become the tenant of the holding, a fresh retirement notice specifying an alternative successor will be ineffective. Similarly, the tenant will be unable to serve another retirement notice nominating the same successor at a later date when, perhaps, the latter’s circumstances might have changed so as to render him ‘suitable’ to take the tenancy. Note, however, that if an application is withdrawn or abandoned it is to be treated as if it had never been made, with the result that a fresh retirement notice can be served.136
8.76 The right to apply for a new tenancy is excluded by s 51(3) unless:
(a)On the date specified in the notice as the date from which the proposed succession is to take place the tenant will have attained the age of 65; where there is a joint tenancy all joint tenants must have achieved this age, or,
(b)When he has not attained the age of 65, he is suffering from bodily or mental infirmity to an extent which is likely to prevent him permanently from conducting the farming of the holding so as to ensure compliance with the rules of good husbandry. In the case of joint tenants, all the tenants must meet the requirement as to ill health.
The ill health provisions have been restrictively interpreted by some tribunals so as to allow succession only where the tenant is too ill to manage, direct and control the farming enterprise. It is not sufficient that he is unable, through ill health, to do physical work on the holding.8.77 As with succession on death, only two successions are allowed. Thus, by virtue of s 51(1), no retirement succession can take place where, on each of the last two occasions when the sole surviving tenant died, either
(a)A tenancy was granted to a successor under s 39 pursuant to a tribunal direction; or
(b)A tenancy was granted to a person who was the sole remaining applicant for a tribunal direction entitling him to succeed to the tenancy.137
8.78 When a nominated successor obtains a tenancy pursuant to an application following a retirement notice, then that succession (on retirement) is deemed to be one succession on death for the purposes of the scheme applying on death.138 The overall result is that a retirement notice can only be served, and an application made, where there have not already been two successions – either on death or retirement.