4.2 Retrospectivity
8.15 One question that has arisen is the extent to which – if at all – events taking place before 14 November 1976 (when the 1976 Act came into force) can adversely affect succession rights under the Act.
Can succession events that took place before this date ‘count’ for the purposes of calculating whether two succession have taken place? Obiter comments by Jowitt J in Trustees of FP Saunders v Ralph indicated that they might, though leaving the question open. The question was definitively resolved in Kemp v Fisher,36 where it was held that consensual events occurring before the 1976 Act came into force could not affect the statutory succession scheme, and could not therefore ‘count’ as a succession event for the purposes of calculating the succession rights accruing to a tenancy. In this case the tenants family had farmed the land in question for many generations. The claimants father had been granted a tenancy in 1973, and his son (the claimant) had been granted the tenancy in 1998. The question was therefore whether there was a further succession to come, enabling the claimants son in turn to take on the tenancy following his death. It was held that the 1973 tenancy agreed with the father did not ‘count’ for these purposes. That tenancy accrued succession rights upon the passing of the 1976 Act, and one of the possible statutory successions thereafter had been used up, when the claimant himself took the tenancy in 1998. The tenancy therefore carried one further succession right. HHJ Raynor QC commented:‘Pre-1976 tenancies have nothing whatever to do with the statutory scheme, and there is no reason to think that Parliament intended that pre-1976 consensual acts should restrict the statutory rights of an eligible person’.37
This must be correct: were it otherwise, the landlord of a traditionally managed estate would be able to go back in time, without apparent limit, to bring historical arrangements into play in a manner that would nullify the impact of the succession scheme.
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