2 Special rights of tenant
10.03 The tenant of a market garden has five distinct and additional rights:
(a)Compensation on termination
10.04 Section 79(2) provides that improvements of a kind specified in Sch 10, carried out on a market garden, shall be treated as if included in Sch 8, Part I.
If they were begun on or before 1 March 1948 they are treated as if included in Sch 9, Part II. The practical import is that the landlord’s consent is not required prior to execution of the improvement, and compensation is available irrespective of its grant or refusal. A further consequence is that the amount of compensation will be the value of the improvement to an incoming tenant.10 Compensation is payable on this basis for the following matters, listed in Sch 10:(i)Planting of standard or other fruit trees permanently set out.
(ii)Planting of fruit bushes permanently set out.
(iii)Planting of strawberry plants.
(iv)Planting of asparagus, rhubarb and other vegetable crops which continue productive for two or more years.
(v)Erection, alteration or enlargement of buildings for the purpose of the trade or business of a market gardener. Improvements of this kind would require consent if the holding were other than a market garden.11
10.05 If the tribunal have given a direction under s 80, and the tenancy is terminated by reason of the tenant becoming insolvent or himself giving notice to quit, special rules apply. The tenant will not be entitled to compensation unless, not later than one month after the notice to quit or insolvency, he produces to the landlord a written offer by ‘a substantial and otherwise suitable person’ to take over the tenancy and pay compensation due under the 1986 Act to the outgoing tenant. The offer must be framed so as to hold good for a period of three months from the date when it is produced. The landlord then has three months in which to consider the offer.
If he fails to accept, compensation is payable to the outgoing tenant in the normal manner. If the offer is accepted, the incoming tenant must pay to the landlord any sums paid by the latter to the outgoing tenant in respect of rent, breach of tenancy or otherwise. Having done so, the incomer can deduct this from any compensation payable by him to the outgoing tenant. These special provisions are usually referred to as the ‘Evesham custom’, the intent being to prevent the landlord becoming liable for substantial claims for market garden improvements which he has not himself sanctioned.12(b)Removal of fixtures
10.06 By virtue of s 79(3) the tenant can exercise his statutory right to remove fixtures and buildings irrespective of whether they are buildings for which he could claim compensation under the Act. They must, however, have been erected or acquired by him specifically for the purposes of his trade or business as a market gardener. Buildings to which this right attaches can, therefore, be removed even if the landlord consented to their erection, and so conferred compensation rights on the tenant.
10.07 The tenant’s right of removal also attaches to both fixtures and fittings erected or affixed prior to 1 January 1884, and acquired subsequently for the purposes of his market garden business.13
(c)Removal of fruit trees and bushes
10.08 Section 79(4) gives the tenant the right to remove all fruit trees and fruit bushes planted by him on the holding and not permanently set out. If, however, the tenant does not remove them before the termination of the tenancy, they then remain the property of the landlord and the tenant cannot claim compensation in respect of them.
(d)Incoming tenant compensation
10.09 By virtue of s 79(5) an incoming tenant can claim compensation in respect of the whole or part of an improvement which he has purchased even if the landlord has not consented in writing to its purchase.
(e)Contracting out
10.10 The parties are free to contract out of the statutory compensation for market gardens (above).14 They cannot, however, contract out of the general compensation provisions of the 1986 Act, eg as to improvements and disturbance.
Section 81 limits the right to contract out to cases:(i)where this is effected by agreement in writing and
(ii)where that agreement secures to the tenant ‘fair and reasonable compensation’ for improvements for which compensation would otherwise be payable under s 79 or 80. This is a question of fact, to be decided by reference to the circumstances of each case.
10.11 Note also that, although the ‘Evesham Custom’ normally only applies where a tribunal direction designates a holding a market garden, the parties can agree to substitute its provisions for the compensation otherwise payable in cases where the holding is designated as such by agreement. The agreement by which the ‘Evesham Custom’ is applied must itself be in writing.15