2 Sub-tenancies of Agricultural land

7.151 The position of sub-tenants is a subject of some considerable complexity. Their legal position depends upon the manner in which the interest of the mesne tenant is determined, and whether (and in what form) they have received notice to quit from the latter.

(i)At common law, if the landlord terminates the tenancy of a mesne tenant by serving notice to quit, any sub-tenancy carved out of it also falls by operation of law.³³⁹ If the tenant fails to serve a counter notice under s 26(1) of the Agricultural Holdings Act 1986, therefore, the subtenant has no security of tenure. Not himself having received notice to quit he cannot serve a counter notice, and this would not in any event avail him against the ultimate landlord.³⁴⁰ If the tenant serves a counter-notice and tribunal proceedings ensue, the sub-tenant has the right to be heard in those proceedings. Where the sub-tenant’s interest falls at common law, no counter-notice having been served, his right to claim compensation for disturbance is preserved by s 63(1) of the 1986 Act. He is, for compensation purposes, treated as if he had quitted in reliance on a notice to quit from the mesne tenant. Where the mesne tenant pays compensation to a subtenant, having himself given no notice to quit to the latter, his own claim for disturbance compensation against the landlord is preserved by s 63(2).

(ii)If the tenant gives notice to quit to his sub-tenant, not himself having received notice to quit from his landlord, the position between mesne tenant and sub-tenant is the same as between landlord and tenant. The sub-tenant can serve a counter-notice invoking the tribunal consent provisions (or an arbitrations, depending on the type of notice to quit served), and is protected vis-a-vis the tenant in the normal way.

(iii)If the tenant has received notice to quit, and in turn serves notice to quit on his sub-tenant, the position turns on whether the tenant’s own notice to quit recites the fact that he has himself received notice to quit from the landlord.

(iv)A tenant cannot derogate from his grant by surrendering his tenancy, and in so doing purporting to destroy a sub-tenancy he has himself granted. So, by virtue of the rule in Mellor v Watkins,³⁴⁴ a tenant cannot by surrendering his interest to his superior landlord destroy the interest of a sub-tenant. Section 139 of the Law of Property Act 1925 promotes the sub-tenant to hold directly of the landlord, against whom he will subsequently enjoy the protection of the 1986 Act.

(v)It was originally thought that this principle applied so that a tenant could not destroy his subtenants’ interest by serving an upwards notice to quit.

(vi)The most difficult situation arises where there is collusion between landlord and mesne tenant to bring the sub tenancy to an end. Such collusion could take the form either of the mesne tenant serving an upward notice to quit, or failing (by prior arrangement) to serve a counter notice to a landlords notice to quit. The courts initially indicated their willingness to protect the subtenant in this situation by holding that where there is collusion the sub tenancy will survive, the subtenant being treated as if there had been a surrender of the mesne tenancy instead of it’s termination by notice to quit.³⁵⁰ This approach was conclusively rejected by the House of Lords in Barrett v Morgan.³⁵¹ The freeholders here were trustees of a family trust, and gave notice to quit at the invitation of the mesne tenants (members of the same family) who had granted a sub tenancy to the defendant, who farmed the holding.

(vii)If the tenant’s interest is forfeited, pursuant to a proviso for re-entry in the head lease, the sub-tenant’s interest will fall by operation of law. He will, however, have the right to apply for relief against forfeiture pursuant to s 146(4) of the Law of Property Act 1925.³⁵³

(viii)It will be apparent from the discussion above that the position of a sub-tenant is somewhat insecure. Prior to the introduction of farm business tenancies by the Agricultural Tenancies Act 1995 it was not unknown for landlords to seek to exploit the interaction of common law and statutory rules by structuring the tenurial arrangements in order to defeat the tenant’s security of tenure. This would typically be attempted by artificially creating, from the outset, a ‘sub’ tenancy granted to the farmer who was going to work the holding, with the head tenancy vested in a third party who could be relied upon not to serve a counter notice under s 26(1) should the landlord later wish to terminate the arrangement by serving notice to quit.

7.152 The position was reviewed by the Court of Appeal in Gisborne v Burton,³⁵⁵ and the efficacy of the sub-tenancy as a means of avoiding security of tenure effectively destroyed. Here the landlord had granted a lease of an agricultural holding to his wife, who simultaneously granted a sub-tenancy to the ‘sub’ tenant, who farmed the holding. Some 20 years later the landlord’s personal representatives sought possession in order to sell with vacant possession. By a majority the Court of Appeal effectively exploded the subtenancy scheme, applying the anti-avoidance principles enunciated in the tax cases of W T Ramsay Ltd v IRC³⁵⁶ and Furniss v Dawson³⁵⁷ in the landlord and tenant context. The Ramsay principle dictates that the fiscal consequences of a pre-ordained series of transactions should be ascertained by considering the result of the series as a whole, and not by dissecting the scheme and considering each transaction separately. According to Dillon LJ in Gisborne a similar principle must be applied wherever there is a pre-ordained series of transactions which is intended to avoid some mandatory statutory provision, even if not of a fiscal nature.³⁵⁸ The scheme here was of a clearly preordained nature, the sub-tenancy having been created contemporaneously with the head tenancy, and the court found the head tenant to be (in law) a mere nominee or agent of the landlord in the grant of a full tenancy to the ‘sub tenant’. This was so, even though neither the head and sub-tenancies could individually be impugned as ‘sham’ transactions.

1For the background to, and development of, the legislation on security of tenure see Chaper 1 above.

2See Chapter 5 para 5.27 ff.

3Agricultural Holdings Act 1986, s 25, disussed below at para 7.10.

4Agricultural Holdings Act 1986, s 26(2), and see para 7.39 ff.

5A secondary distinction to make is between those notices given pursuant to the Cases for Possession which can be challenged by arbitration, and those which cannot. If notice to quit is given relying on Cases A, B, D or E to Sch 3 to the 1986 Act, the tenant can challenge the facts on which it is based by referring the notice to arbitration. If one of the other Cases is relied on an arbitration is not available. In this event a notice to quit can only be challenged on common law grounds, eg for ambiguity, uncertainty, or fraud. The least onerous restrictions, then, apply to notices to quit given under Cases C, F, G and H.

6Ie under Sch 3, Case G to the 1986 Act. See below para 7.121 ff.

7Section 43(1) ibid.

8See further Chapter 8 below, esp 8.04 ff.

9Per Lord Coleridge CJ in Gardner v Ingram (1889) 61 LT 729, 730.

10Bury v Thompson [1895] 1 QB 696, 697, CA; Carradine Properties v Aslam [1976] 1 WLR 442; Land v Sykes [1990] EGCS 116.

11Phipps & Co Ltd v Rogers [1924] 2 KB 45.

12Ahearn v Bellman (1879) 4 Ex D 201, CA.

13Cf, Eastaugh v Macpherson [1954] 3 All ER 214, CA and Phipps & Co Ltd v Rogers [1924] 2 KB 45; Addis v Burrows [1948] 1 KB 444, CA.

14See Dagger v Shepherd [1946] KB 215, CA; and more generally Manorlike Ltd v Le Vitas Travel Agency and Consultancy Services Ltd [1986] 1 All ER 573, CA.

15[1942] 2 All ER 311 CA.

16In Hankey v Clavering (above n 1) the notice to quit was held bad where it wrongly purported to terminate the tenancy on 21 December instead of 25 December (the contractual term date). And see Morrow v Nadeem (1986) 279 Estates Gazette 1083 (notice invalid where landlord wrongly identified).

17This line of cases is exemplified by decisions such as Carradine Properties v Aslam [1976] 1 WLR 442 where a notice was held valid even though an impossible termination date had been inserted. And see Germax Securities v Spiegal (1978) 37 P&CR 204.

18[1997] 3 All ER 352. Applied most recently in in Friends Life Ltd v Siemens Hearing Instruments Ltd [2014] EWCA Civ 382 (CA); MW Trustees Ltd v Telular Corp [2011] EWHC 104 (Ch); Saxon Weald Homes Ltd v Chadwick [2011] EWCA Civ 1202.

19[1976] 1 WLR 442 (above).

20Per Lord Hoffmann [1997] 3 All ER 352 at 381; Lord Clyde ibid at 382/3.

21See Lord Steyn [1997] 3 All ER 352 at 368–370.

22For example Friends Life Ltd v Siemens Hearing Instruments Ltd [2014] EWCA Civ 382 (CA); MW Trustees Ltd v Telular Corp [2011] EWHC 104 (Ch); Saxon Weald Homes Ltd v Chadwick [2011] EWCA Civ 1202.

23See Land v Sykes [1992] 1 EGLR 1.

24See Cawley v Pratt [1988] 2 EGLR 6.

25Cf Frankland v Capstick [1959] 1 All ER 209, CA; Harmond Properties Ltd v Gajdzis [1968] 3 All ER 263, CA.

26See Divall v Harrison [1992] 38 Estates Gazette 149.

27See para 7.41 below.

28See Crawford v Elliott (1991) 13 Estates Gazette 163 CA, confirming the absence of any need to give reasons when serving notice to quit under s 26(1) ibid. Mann LJ critised the terms of the 1986 Act for not requiring the landlord to give a notice to the tenant of his rights when giving notice to quit.

29[2000] 4 EG 135.

30This is an essential prerequisite to notice to quit under Case D in Sch 3 of the 1986 Act: see below at para 7.90 ff.

31[1997] 4 All ER 627 (CA). The court of appeal here held that, even if an agricultural holding includes a dwelling, the premises (ie the entire acreage) are not ‘let as a dwelling’ within the meaning of the Protection from Eviction Act 1977.

32Ie in the Notice to Quit etc (Prescribed Information) regulations 1988, SI 1988/2201.

33See Chapter 9 para 9.43 ff.

34Usually four years’ rent of the holding.

35See s 60(3) ibid.

36Earl of Stradbroke v Mitchell [1989] 2 EGLR 5; affd sub nom Rous v Mitchell [1991] 1 All ER 676, CA. And see further para 7.114 below. Fraud is more likely to be relevant where notice to quit is given for the reasons enumerated in the Cases for Possession in Sch 3.

37In Rous v Mitchell itself, the landlord gave his agents instructions to serve a Case E notice (irremediable breach of tenancy) based on unauthorised subletting of farm cottages. Some subletting had in fact been with consent, and other cottages were let to workers on the farm (service occupiers). earlier correspondence had been overlooked. The notice to quit was void for fraud.

38Luttenberger v North Thoresby Farms Ltd [1993] 17 EG 102.

39Omnivate Ltd. v Boldan [1994] EGCS 63. Notice to quit was served under Case B to Sch 3, as to which see further para 7.56 ff below.

40[1997] 3 All ER 352.

41Schnabel v Allard [1967] 1 QB 627, CA.

42Yeandle v Reigate B.C. [1996] 1 EGLR 20.

43See Flather v Hood (1928) 44 TLR 698.

44See Edell v Dulieu [1924] AC 38, HL.

45See Muir Watt and Moss, Agricultural Holdings (14th ed) at para 12.5 and the unreported decision cited by the author of that work on p 274, fn 24.

46Elsden v Pick [1980] 1 WLR 898, CA.

47See ss 60(3) (disturbance compensation) and 70(2) (compensation for high farming).

48And see Coates v Diment [1951] 1 All ER 890; Re Disraeli’s Agreement [1939] Ch 382 and Parry v Million Pigs Ltd (1980) 260 EG 281, the rationale of which would, it is suggested, apply.

49Agricultural Holdings Act 1986, s 25(2)(a).

50Section 96(2) ibid.

51Section 25(2)(b) ibid. See further Chapter 6 para 6.38 ff above.

52Section 25(2)(c) ibid.

53Sch 12, para 4 ibid.

54Section 25(2)(d) ibid.

55Articles 7 and 15 of the Agricultural Holdings (Arbitration on Notices) Order 1987, SI 1987/710.

56Agricultural Holdings Act 1986, s 25(3).

57Section 25(4) ibid.

58Section 25(4) ibid.

59See Cowan v Wrayford [1953] 2 All ER 1138, 1141, CA.

60See the Agricultural Holdings (Arbitration on Notices) Order 1987, Art 11.

61See Dodds v Walker [1981] 1 WLR 1027, HL; E J Riley Investments Ltd v Eurostile Holdings Ltd [1985] 3 All ER 181, CA.

62Agricultural Land Tribunals (Rules) Order 2007, SI 2007/3105, r 39, Sch; Tribunal Procedure (First Tier Tribunal) (Property Chamber) Rules 2013, SI 2013/1169, r 27(a) (England). See Appx 1 below.

63[1978] 3 All ER 37, HL.

64[1986] 2 All ER 461 CA.

65Newman v Keedwell (1977) 244 EG 469.

66Harris v Black (1983) 46 P & CR 366, CA.

67Sykes v Land (1984) 271 EG 1264, CA.

68Agricultural Holdings (Arbitration on Notices) Order 1987, SI 1987/710, Art 16.

69Agricultural Holdings Act 1986, s 27(1).

70R v Agricultural Land Tribunal for Eastern Province of England, ex Grant [1956] 1 WLR 1240, 1244, CA per Singleton LJ.

71See Evans v Roper [1960] 2 All ER 507.

72Davies v Price [1951] 1 All ER 671, CA.

73Cf Lewis v Moss (1961) 181 EG 685.

74Cf R v Agricultural Land Tribunal for Eastern Province of England ex p Grant [1956] 3 All ER 321, CA.

75Evans v Roper [1960] 2 All ER 507.

76National Coal Board v Naylor [1972] 1 All ER 1153.

77Cf Burnett v Smith (1951) 159 EG 3 and Trustees of A Merchant v Sterry (1954) 163 EG 655.

78As to which see Chapter 10 para 10.23 ff below.

79See Cooke v Talbot (1977) 243 EG 831.

80See Rent Act 1977, Sch 15, Case 9.

81[1967] 2 QB 500, 508, CA.

82Ibid, at 508, per Lord Denning MR.

83[1948] 1 KB 73, 79, CA.

84And see Rhodes v Cornford [1947] 2 All ER 601, CA.

85See Addington v Sims [1952] EGD 1.

86See R v Agricultural Land Tribunal for the South Eastern Area, ex p Parslow (1979) 251 EG 667 – hardship to nieces/nephews of either party not relevant unless close personal relationship proven.

87See Thomas v Fryer [1970] 2 All ER 1, CA.

88Compare Purser v Bailey (above); Kinson v Swinnerton (1961) 179 EG 691; Sims v Wilson [1946] 2 All ER 261, CA. Cf the Scottish case of Clamp v Sharp 1986 SLT (Land Ct) 2.

89See generally Wickington v Bonney (1982) 47 P & CR 655 per Stephen Brown J.

90See R v Agricultural Land Tribunal for South Eastern Area, ex p Bracey [1960] 2 All ER 518.

91As in Jones v Burgoyne (1963) 188 EG 497.

92See 1986 Act, Sch 3, Part I, Case B para (b); and below para 7.57.

93And see further para 7.64.

94See Jones v Burgoyne (1963) 188 EG 497.

95Evans v Roper [1960] 2 All ER 507.

96Agricultural Holdings Act 1986, s 27(6).

97See s 27(8) ibid.

98See s 27(7) ibid.

99Re Bebington’s Tenancy [1921] 1 Ch 559. The decision in this case has been superseded by statute, in the form of s 140(2), LPA 1925. The principle, however, still stands.

100See above Chapter 4 para 4.38.

101Coates v Diment [1951] 1 All ER 890; Re Disraeli’s Agreement [1939] Ch 382.

102As to which see further Chapter 10 below.

103Jelley v Buckman [1974] QB 488, CA.

104(1983) 47 P & CR 37, CA.

105See (1983) 47 P&CR 37, 44 per May LJ.

106See Re Clayton’s Deed Poll [1980] Ch 99; Nevill Long & Co (Boards) Ltd v Firmenich & Co (1983) 47 P & CR 59, CA.

107And see further (1985) 49 Conv 292 (J Martin), and a helpful article at (1984) 8 CSW 175 (A Densham).

108Agricultural Holdings Act 1986, s 33(1).

109Ibid, s 33(3).

110Agricultural Holdings Act 1986, s 26(2).

111Ie ibid, s 26(2) and Sch 3.

112Pickard v Bishop (1975) 31 P & CR 108, 112, CA per Lord Denning MR.

113[1997] 3 All ER 352.

114See above para 7.03 ff.

115Mills v Edwards [1971] 1 All ER 922, CA.

116Cowan v Wrayford [1953] 2 All ER 1138, CA.

117Hammon v Fairbrother [1956] 2 All ER 108. And see Harley v Moss (1962) 181 EG 707, doubted in Mills v Edwards [1971] 1 All ER 922, 929, CA.

118Agricultural Holdings Act 1986, s 25(1).

119Pickard v Bishop (1975) 31 P & CR 108, CA.

120Pickard v Bishop, ibid.

121See Dickinson v Boucher (1983) 269 EG 1159, CA (£650 demanded instead of £625, rendering subsequent notice to quit void).

122Official Solicitor v Thomas (1986) 279 EG 407, 414, CA (description of supplemental agreements in singular rather than plural held not to be invalid notice to remedy).

123Budge v Hicks [1951] 2 KB 335, CA.

124SI 1987/710.

125Rous v Mitchell [1991] 1 All ER 686, CA.

126Newman v Keedweel (1977) 35 P & CR 393, Combey v Gumbrill [1990] 27 EG 85.

127See Rous v Mitchell [1991] 1 All ER 686 (counter notice to Case E notice to quit void where s 26(1) specified by mistake, instead of s 26(2)).

128Harding v Marshall (1983) 267 EG 161, CA; Parrish v Kinsey (1983) 268 EG 1113, CA. For this reason notices served under Sch 3 to the 1986 Act are commonly referred to as ‘incontestable’ notices to quit; see Scammell and Densham’s Law of Agricultural Holdings (8th ed) p 176 and (generally) Ch 11.

129Where an arbitration was originally commenced before 19 October 2006 then Sch 11 to the Agricultural Holdings Act 1986 will apply); Regulatory Reform (Agricultural Tenancies) (England and Wales) Order 2006 SI 2006/2805, reg 7. Regulation 9 ibid. repealed Agricultural Holdings Act 1986, Sch 11, which formerly contained the special arbitration code applicable to agricultural holdings, with effect from 19 October 2006 (the date on which the 2006 Order came into effect). The 1986 Act arbitral code only applies to arbitrations that commenced before this date.

130Milton (Peterborough) Estates v Harris [1989] 2 EGLR 229.

131See Parrish v Kinsey (1983) 268 EG 1113 CA, a hard case where the tenant, who had poor sight, failed to realise the significance of the notice to quit served on him, and so failed to serve a demand for arbitration on the facts alleged.

132Robinson v Moody [1994] 37 EG 154.

133See Cawley v Pratt [1988] 2 EGLR 6, CA.

134See Land v Sykes [1992] 1 EGLRI. Cf. there is no time limit for an application where a counter notice is served to a Notice to Remedy breaches of tenancy (Case D). See SI 1987/710, Art 3. The onus here, therefore, is on the landlord to make application if he wishes to pursue the matter.

135SI 1987/710, Art 11.

136‘... the time within which a counter notice may be served by the tenant on the landlord under s 26(1)... shall be one month from the termination of the arbitration.’ (italics added)

137SI 1987/710, Art 10.

138SI 1987/710, Art 13(1).

139See further Chapter 10 below para 10.12.

140See Selwyn v Hamill [1948] 1 All ER 70, CA.

141Agricultural Holdings Act 1986, Sch 3, Part I, para 2.

142See Housing Act 1988, Sch 17, para 69.

143Agricultural Holdings Act 1986, Sch 3, para 3.

144Jones v Gates [1954] 1 All ER 158, CA.

145See Rugby Joint Water Board v Foottit [1972] 1 All ER 1057, HL.

146Paddock Investments Ltd v Lory [1978] EGD 37, 46 per Goff LJ.

147[2000] 22 EG 134.

148Paddock Investments Ltd v Lory [1978] EGD 37.

149Ministry of Agriculture, Fisheries and Food v Jenkins [1963] 2 QB 317, 324, CA per Lord Denning MR. The current order is the Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015/596. See further Ch 12 para 12.49 ff below.

150Fowler v Sec. of State and North Wiltshire DC [1993] JPL 365.

151[1996] 1 EGLR 7 CA.

152See Ministry of Agriculture, Fisheries and Food v Jenkins [1963] 2 QB 317, CA (application to convert grazing land to forestry). Note that, had the applicant here been a private individual, rather than a government department, s 27(3) would have applied (and not Case B) as the exemption from planning control for private forestry is contained in s 55(2)(f) of the (now) Town and Country Planning Act 1990.

153Under the provisions contained in Chapter 1 of Part 7 to the Planning and Compulsory Purchase Act 2004 the Planning Acts applied to the Crown with effect from 7 June 2006. See also Department for Communities and Local Government Circular 02/2006 Crown Application of the Planning Acts.

154[1990] 1 All ER 54, CA.

155The 1990 Act came into force on 29 July 1990: Agricultural Holdings (Amendments) Act 1990, s 3(2).

156See Parl. Debs. (HC) Vol 167 No 53 Col 614.

157An example would be the Channel Tunnel Act 1987, s 9 of which granted planning permission for development by the Tunnel Concessionaries and Kent County Council.

158See s 27(2) of the 1986 Act.

159Article 9, SI 1987/710. See above, para 7.47.

160See Cawley v Pratt [1988] 2 EGLR 6, CA.

161Sch 3, para 9(1) to the 1986 Act. And see Cambusmore Estate Trustees v Wittle [1991] SLT 33.

162Sch 3, para 9(2).

163Davies v Philipps [2007] EWHC 1395 (Admin) per Sullivan J. And see Ross v Donaldson 1983 SLT (Land Ct) 26.

164See Goldsmid v Hick (2002) ALT/SE/1547; Leonard Hall v Stone SW/ALT/27/71; Burrough and others v Dymond [2012] ALT/SW/CBH/1.

165See Burrough and others v Dymond [2012] ALT/SW/CBH/1. The holding here was rented from the Ministry of Defence for many years, and the tenancy contained clauses preventing the tenant from erecting fences, which would otherwise have protected hedgerows from damage by sheep. The agreement also only required the tenant to maintain ditches and hedges in the condition existing at the beginning of the tenancy. The tribunal stressed that both the former military use, and the terms of the tenancy, were relevant to an assessment of whether the tenant was maintaining a reasonable standard of production. The application for a certificate was refused.

166[2007] EWHC 1395 (Admin).

167Eg, with Natural England under the Entry Level or Higher Level Stewardship Scheme, as to which see Chapter 13 para 13.106 ff below.

168As to which see the Code of Good Practice for agri-environment schemes and diversification projects within agricultural tenancies (Department of Environment Food and Rural Affairs, 2004), discussed above in Chapter 1 para 1.38 ff.

169See Cambusmore Estates Trustees v Little [1991] SLT 33 (SLC) decided on Agricultural Holdings (Scotland) Act 1949, s 28.

170See also on this point Tarmac UK Ltd v Hughes [2009] ALT/W/6229 (the illness of the tenant, which required periods of hospital care, was also here held to be irrelevant. The tenant had undertaken no maintanence since 1992, and fences were in poor condition, with bad poaching of permanent grazing. A certificate was issued by the ALT Wales).

171See for example Magdalen College Oxford v Heritage [1974] 1 WLR 411, where the fact that the landlords preliminary notice to pay rent was invalid did not prevent the subsequent notice to quit taking effect. And see below para 7.76 ff.

172Ie, Form 1 prescribed by the Agricultural Holdings (Forms of Notice to Pay Rent or to Remedy) Regulations 1987, SI 1987/711.

173Magdalen College, Oxford v Heritage [1974] 1 All ER 1065, CA.

174Dickinson v Boucher (1983) 269 EG 1159, CA.

175Urwick v Taylor [1969] EGD 1106.

176[1994] 17 EG 148.

177As to which see Hanak v Green [1958] 2 QB 9 CA.

178[1994] 2 EGLR 8 CA.

179See IG Index Ltd v Ehrentreu [2013] EWCA Civ 95. If there is any ambiguity in construction of the settlement agreement, then the court is entitled to prefer the construction which is consistent with business common sense: see Rainy Sky SA v Kookmin Bank [2011] UKSC 50.

180(1975) 31 P&CR 108, CA.

181Jones v. Lewis (1973) 25 P&CR 375 CA.

182Magdelen College, Oxford v Heritage [1974] 1 All ER 1065, CA (notice to pay invalid by reason of failing to give 2 months for payment, subsequent notice to quit nevertheless valid).

183Ibid [1974] 1 All ER 1065, 1070 per Megaw LJ.

184Dockerill v Fitzpatrick [1989] 1 EGLR 1, CA.

185See Price v Romilly [1960] 3 All ER 429.

186Stoneman v Brown [1973] 2 All ER 225, CA especially at 227 per Lord Denning MR.

187Beevers v Mason (1978) 37 P & CR 452, 459, CA. For an example see Avocet Industrial Estates LLP v Merol Ltd [2011] EWHC 3422 (Ch). The landlord was not entitled here to reject the tenant’s tender of a cheque on the day prior to the contractual break date of the lease. There had been a consistent course of dealing between landlord and tenant which indicated that the landlord had agreed to accept cheques in payment of rent. Further, the fact that time was of the essence under cl 45 of the lease did not mean that the landlord had to be paid in cleared funds and not by cheque.

188Norman v Ricketts (1886) 3 TLR 182, CA.

189Luttenberger v North Thoresby Farms Ltd [1993] 17 EG 102. The 2nd signature was added after the two months allowed to pay, and notice to quit, therefore valid.

190Pennington v Crossley & Son (1897) 13 TLR 513, CA; Luttges v Sherwood (1895) 11 TLR 233.

191Dixon v Clark (1848) 5 CB 365.

192Milton (Peterborough) Estates v Harris [1989] 2 EGLR 229.

193Hannaforde v Smallacombe [1994] 15 EG 155.

194Official Solicitor v Thomas [1986] 2 EGLR 1, CA.

195Beevers v Mason (1978) 37 P & CR 452, 460, CA.

196See The Mecca [1897] AC 286, 293, HL.

197[1986] 2 EGLR 1, CA.

198Leeson v Leeson [1936] 2 KB 156, CA.

199See s 16 of the 1986 Act, which prevents distress for rent due more than one year previously. Above Chapter 6 para 6.162 ff.

200Nash v Hodgson (1855) 6 De GM & G 474.

201See French v Elliott [1959] 3 All ER 866.

202SI 1987/710, Art 9.

203Ibid, Art 10.

204See Troop v Gibson [1986] 1 EGLR 1 CA. For more detailed consideration of the case law on this distinction see Chapter 4 above, para 4.24.

205See Expert Clothing Service and Sales Ltd v Hillgate House Ltd [1986] Ch 340 at 362.

206Expert Clothing Service and Sales Ltd v Hillgate House Ltd [1986] Ch 340.

207Farimani v Gates (1984) 271 EG 887, CA.

208Sumnal v Statt (1984) 271 EG 628, CA; Lloyds Bank Ltd v Jones [1955] 2 QB 298, CA.

209Scala House and District Property Co Ltd v Forbes [1974] QB 575, CA; Troop v Gibson [1986] 1 EGLR 1, CA; Rous v Mitchell [1991] 1 All ER 676, [1990] EGCS 109, CA. Akici v LR Butlin Ltd [2005] EWCA Civ 1296, [2006] 2 All.ER. 872 (see especially Neuberger LJ., Judgement at para 67); cf. Clarence House Ltd v National Westminister Bank Plc [2010] 1 WLR 1216 (‘virtual’ assignment not a breach of covenant not to part with possession).

210Farimani v Gates (1984) 271 EG 887, CA.

211SI 1987/711.

212SI 1987/711, Art 2(2).

213Agricultural Holdings Act 1986, Sch 3, Part I, para 10(1)(c).

214Ibid, Sch 3, Part I, para 10(1)(b).

215SI 1987/710, Arts 3(1), (2).

216Ibid, Art 3(3).

217Ibid, Art 4(1).

218Ibid, Art 4(2).

219Ibid, Art 4(3).

220Ibid, Art 5(a).

221Ibid, Art 5(b).

222Ibid, Art 6(1).

223Ibid, Art 8.

224Ibid, Art 6(2).

225Ibid, Art 7(1).

226Ibid, Art 7(2).

227Ibid, Art 7(4).

228Ibid, Art 9.

229Ibid, Art 11(1).

230Ibid, Art 14.

231Ibid, Art 15.

232Ibid, Art 15(4).

233Ibid, Art 15(6).

234Ibid, Art 13(1).

235Price v Romilly [1960] 3 All ER 429.

236See Wykes v Davis [1975] 1 All ER 399, CA especially at 404 per Buckley LJ.

237[1963] 2 All ER 902, CA.

238See Sumnal v Statt (1984) 271 EG 628, CA.

239Ibid, s 28(4)(a).

240Ibid, s 28(4)(b).

241SI 2013/1169, r 27(4) (England); Agricultural Land Tribunals (Rules) Order 2007, SI 2007/3105, r 39, Sch (Wales). See Appx 1 below.

242SI 1978/810, Art 10.

243[2005] 2 EGLR 22.

244Both notices – a request for arbitration and a counter notice under s 28 – were included in the same envelope. The covering letter did not identify on which the tenant wished to proceed.

245Section 28(4)(a) provides that ‘any counter notice already served [under s 28(2)] shall be of no effect’ (italics added). This was held not to apply where, as here, both notices were served concurrently.

246Section 28(5) ibid.

247This was an amendment to s 28 introduced by the Agricultural Holdings Act 1984, s 7.

248(1982) 264 EG 144.

249Cf Form 2 above.

250SI 1987/710, Art 12.

251Ibid, Art 13.

252Ibid, Art 14.

253Ibid, Art 15.

254Cf proceedings under Form 2, above.

255[2005] 2 EGLR 17 CA.

256The tenant was processing, cartoning and distributing milk and fruit juice produced elsewhere, and not on the holding.

257[2005] 2 EGLR 17 at 48 per Lord Woolf MR.

258See Parrish v Kinsey [1983] 2 EGLR 13.

259See Troop v Gibson [1986] 1 EGLR 1, CA; Rous v Mitchell [1991] 1 All ER 676. And see Clarence House Ltd v National Westminister Bank Plc [2010] 1 WLR 1216 for a discussion of the concept of ‘possession’ and of ‘sharing’ possession in the context of alienation covenants. This decision concerned the validity of ‘virtual assignments’ where the economic benefits of a lease are transferred without formal assignment of the legal interest in the lease itself – an arrangement increasingly common in the commercial arena but uncommon in agricultural leases. It was held that the tenant, by entering into a virtual assignment, did not share or part with possession of the demised premises or any part thereof. Nor did a virtual assignment amount to a declaration of trust, assignment or underletting. A covenant against parting with or sharing possession was concerned with the question whether the tenant had allowed another into physical occupation with the intention of relinquishing his own exclusive possession of the premises to that other (Akici v LR Butlin Ltd [2005] EWCA Civ 1296). On that approach there had been no breach of the covenant by the tenant.

260[1995] 1 EGLR 6 CA.

261Rous v Mitchell [1991] 1 All ER 676, CA.

262Omnivale Ltd v Boldan [1994] EGCS 63.

263See Agricultural Holdings Act 1986, Sch 3, Pt 11, para 11(2).

264[1980] AC 37, HL.

265(1977) 35 P & CR 378, CA; and on different grounds [1980] AC 37, HL. The relevant provision was, at that time, Agricultural Holdings (Notices to Quit) Act 1977, s 2(1).

266See Agricultural Holdings Act 1986, s 96(2).

267Section 25(2)(a) ibid.

268See Law of Property Act 1925, s 146(1)(a).

269See s 34 of the 1986 Act.

270See Sch 3, Part I, para 12(b) ibid.

271Lees v Tatchell [1990] 1 EGLR 10, 14 per Parker LJ.

272The curious situation arose in Lees v Tatchell (above) that the landlord had attended the tenant’s funeral, but was able to serve notice to quit because no sufficient notice of death was formally served.

273Lees v Tatchell [1990] 1 EGLR 10.

274BSC Pension Fund Trustee Ltd v Downing [1990] 1 EGLR 4.

275BSC Pension Fund v Downing ibid.

276Agricultural Holdings Act 1986, Sch 3, para 12(b)(ii).

277Case G originally enabled a landlord to give notice to quit on the death of the tenant with whom the tenancy was initially concluded – even if he had subsequently assigned his interest (see Clarke v Hall [1961] 2 QB 331). This was changed by s 16 of the Agriculture (Miscellaneous Provisions) Act 1976.

278This is one of the more potent reasons, where a farm tenancy has no covenant against alienation, for using the statutory machinery in s 6 and Sch 1 to the 1986 Act to secure the insertion of a covenant against subletting and assignment.

279Cf Costagliola v Bunting [1958] 1 All ER 846.

280See s 39(1) of the Agricultural Holdings Act 1986.

281See s 43(6) and (7) of the Agricultural Holdings Act 1986.

282See s 93(3) ibid.

283Notice addressed to the Public Trustee sent c/o the Public Trustee Office, PO Box 3010, London WC2B 6JS. See Practice Direction [1995] 3 All ER 192.

284As to which see s 26(1) of the 1967 Act.

285See the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951, as amended.

286Agricultural Holdings Act 1986, Sch 5, para 1.

287Agricultural Holdings Act 1986, Sch 5, para 2(2).

288Sch 5, para 2(1) ibid.

289Sch 5, para 3(2) ibid.

290SI 1987/710.

291See Johnson v Moreton [1980] AC 37, HL; Featherstone v Staples [1986] 2 All ER 461.

292[1953] 1 All ER 155 CA.

293[1980] 260 EG 281.

294See above Ch.4 para 4.15 ff for more detailed treatment of the law of forfeiture. Forfeiture under the general law is particularly relevant in the case of a long fixed term farm business tenancy agreement.

295Leasehold Property (Repairs) Act 1938, s 7(1).

296Agricultural Holdings Act 1986, s 96(1).

297Ibid, s 70(2).

298Canas Property Co. Ltd v KL Television Services [1970] 2 QB 433. And see Parry v Million Pigs Ltd (1980) 260 EG 281.

299Re Disraeli’s Agreement [1939] Ch 382; Coates v Diment [1953] 1 All ER 890. See also s 78 of the 1986 Act.

300(1830) 1 B&Ad. 135.

301Greenwich London Borough Council v McGrady (1982) 81 LGR 288, CA; Hammersmith & Fulham LBC v Monk [1992] 1 All ER 1 (HL); affirmed by the Supreme Court in Sims v Dacorum District Council [2014] UKSC 63; and applied in Muema v Muema [2013] EWHC 3864 (Fam). This principle has been applied to termination of yearly agricultural tenancies in Scotland – Smith v Grayton Estates Ltd (1960) SC 349, ‘Silence by both is necessary to presume that both the tenants wish the tenancy to continue for another year’ (Lord Clyde at ibid 354/5). The joint tenancy rule has not been invalidated by the Human Rights Act 1998: see Wandsworth LBC v Dixon [2009] EWHC 27, and further below.

302Hammersmith & Fulham LBC v Monk [1992] 1 All ER 1 at 8 per Lord Bridge.

303Crawley BC v Ure [1996] 1 All ER 724.

304This is discussed further below at para 7.142.

305See Potter v Dyer [2011] EWCA Civ 1417.

306See Pinnock v Manchester City Council [2010] UKSC 45; Hounslow LBC v Powell [2011] UKSC 8; and R (CN) v Lewisham LBC [2014] UKSC 62.

307Leek and Moorlands Building Society v Clark [1952] 2 QB 788, CA.

308(1982) 81 LGR 288, 290.

309Parsons v Parsons [1983] 1 WLR 1390 (and see (1984) Conv 166). A trust of land will be implied by the rules of co-ownership, under the Trust of Land and Appointment of Trustees Act 1996 (‘TOLATA 1996’). The trust of land will replace the implied trust for sale applicable prior to the introduction of the 1996 Act: TOLATA 1996, s 5(1), Sch 2, paras 3, 4. This will include most cases where an Agricultural Holdings Act 1986 tenancy has been granted by joint landlords, as it is not possible (with limited exceptions) to grant a tenancy of an agricultural holding after 1 September 1995: Agricultural Tenancies Act 1995, s 4 (as to which see Chapter 3 above). Succession tenancies granted by joint landlords under Part IV of the 1986 Act, after the introduction of TOLATA 1996, will of course be within TOLATA 1996 ab initio.

310Jones v Lewis (1973) 117 Sol Jo 373, CA.

3111986 Act, s 26(1).

312Newman v Keedwell (1977) 35 P & CR 393.

313(1984) 271 EG 1264.

314[1986] 2 All ER 461.

315Under what is now Agricultural Holdings Act 1986, s 26(1).

316(1985) 273 EG 193, especially at 197.

317Ie 1986 Act, s 26(1).

318[1986] 2 All ER 461, 473.

319Eg Greenwich London Borough Council v McGrady (1982) 81 LGR 288.

320[1980] AC 37.

321Featherstone v Staples [1986] 2 All ER 461 at 477 per Shaw LJ.

322See ss 1 and 2(3) of the Partnership Act 1890.

323See for example the first instance decision in Combey v Gumbril [1990] 27 EG 85. (Final order in matrimonial proceedings ordering husband to assign tenancy, which was jointly held, into wife’s sole name, and giving her sole authority to conduct the farming business. Authority to conduct the business, pursuant to the order, was there held to include authority to serve notices under the agricultural holdings legislation, and counter notice served by the wife alone were held to be valid).

324For further discussion, and criticism, see (1986) EG (Muir Watt), (1985) 48 MLR 460 and (1986) 50 Conv 429 (Rodgers). And on problems of joint tenure see generally: Martin, (1978) 42 Conv 436; Webb (1983) 47 Conv 194, Landlord and Tenant: Reform of the Law (Cm 145, 1987) paras 4.20–4.26.

325[2012] EWCA Civ 694, CA.

326The licence was, in any event, granted in 1997 and would not therefore have attractetd the protection of the Agricultural Holdings Act 1986.

327Ie under the Trusts of Land and Appointment of Trustees Act 1996.

328See Bevan v Webb [1905] 1 Ch 620; Brenner v Rose [1973] 1 WLR 443.

329Re Biss [1903] 2 Ch 40, CA.

330(1983) 46 P & CR 366.

331(1984) 271 EG 1264.

332[1997] 16 EG 130.

333(1984) 271 EG 1264 at 1266.

334See comments in Harris v Black (1983) 46 P&CR 366 at 374 (Slade LJ.).

335This point was accepted, arguendo, in Harris v Black (1983) 46 P & CR 366 at 372.

336Crawley BC v Ure [1996] 1 All ER 724. Consultation is otherwise required under Trusts of Land and and Trustees Act 1996.

337Greenwich London Borough Council v McGrady (1982) 81 LGR 288, CA; Hammersmith & Fulham LBC v Monk [1992] 1 All ER 1 HL (above para 7.136).

338[2000] 1 All ER 481.

339The rule in Bendall v McWhirter [1952] 2 QB 466, CA.

340See for instance Harrison v Wing (1988) 56 P & CR 358, CA.

341Agricultural Holdings Act 1986, s 25(2)(c).

342See s 27 of and Sch 4, para 7 to the 1986 Act.

343See Baron Sherwood v Moody [1952] 1 All ER 389.

344(1874) LR 9 QB 400.

345Brown v Wilson (1949) 208 LT 144.

346[1995] 1 EGLR 6.

347[1995] 1 EGLR 6 at 9 per Simon Brown LJ.

348Brown v Wilson (above n 7) was overruled, and dicta in Mellor v Watkins supporting the earlier consensus disapproved.

349Harrison v Wing (1988) 56 P & CR 358, CA (tenant also executor of landlord estate). The court of appeal in Barrett v Morgan [1998] 4 All ER 179 expressly left open whether Harrison v Wing could be still considered good law, in the light of the decision in Pennell v Payne [1995] 1 EGLR 6 (above n 8).

350See Sparkes v Smart [1990] 2 EGLR 245 CA and Barrett v Morgan [1998] 4 All ER 179 CA, approving the decision in Sparkes v Smart ibid.

351[2000] 1 All ER 481 HL, overruling the court of appeal [1998] 4 All ER 179. The decision in Sparkes v Smart [1990] 2 EGLR 245 CA was expressly overruled (see [2000] 1 All ER 481 at 489e).

352See Lord Millett at [2000] 1 All ER 481, 486d–h.

353As to which see Chapter 4. Forfeiture is of greater importance with regard to fixed term farm business tenancies than periodic tenancies of agricultural holdings, and is therefore discussed more fully in that context in Chapter 4 above.

354[1952] 1 All ER 389.

355[1988] 3 All ER 760.

356[1982] AC 300, HL.

357[1984] AC 474.

358[1988] 3 All ER 759, 765.

359And see further (1988) 138 NLJ 792 (J Martin), (1988) 48 EG 64 (Muir Watt), (1989) Conv 196 (Rodgers). Gisborne v Burton was not argued before the House of Lords in Barrett v Morgan [2000] 1 All ER 481 (above para 7.147), where there was no allegation that the sub tenancy in question had been deliberately created as such in order to evade the security of tenure provisions in the 1986 Act.