2 The Agricultural Worker Condition
11.47 This definition has two functions:
(a)it limits the scope of protection by defining those agricultural employees on whom an assured agricultural occupancy is conferred; and
(b)it triggers the distinctive security of tenure provisions applicable to agricultural occupancies, as opposed to other forms of assured tenancy.
11.48 If at any time the agricultural worker condition ceases to be fulfilled, the tenancy will cease to be an assured agricultural occupancy.118 It then becomes a normal assured tenancy, and the special security of tenure provisions requisite to agricultural occupation cease to apply – in particular Ground 16 becomes available giving the landlord a discretionary ground for possession upon cessation of the occupier’s employment (as to which see below).
‘Agricultural worker’ – the statutory definition
11.49 By virtue of para 2 of Sch 3 to the 1988 Act, two requirements must be met before the condition is satisfied, viz:
(i)The landlord condition. The dwelling house must be, or have been, in ‘qualifying ownership’ at any time during the subsistence of the tenancy or license. ‘Qualifying ownership’ is defined by reference to Sch 3 to the 1976 Act, para 3 of which requires that the occupier must be employed in agriculture, and his employer must be either the owner of the dwelling house or someone who has made arrangements with the owner for it to be used to house agricultural workers; and
(ii)The occupier condition. The occupier (or one out of joint occupants) must be a ‘qualifying worker’, or have been a qualifying worker at any time during the subsistence of the license or tenancy. Alternatively, the occupier must be incapable of whole time work in agriculture, or of permit work, by reason of a qualifying injury or disease suffered in the course of his agricultural employment with the landlord (see para 2 of Sch 2 to the 1976 Act);
‘Qualifying Worker’.
An occupier is a qualifying worker for these purposes if, at the relevant time, he has worked whole time in agriculture, or has worked in agriculture as a permit worker, for not less than 91 out of the past 104 weeks;119(iii)Extension to qualifying spouses and members of occupier’s family. Where a qualifying worker has died, the agricultural worker condition is deemed to be satisfied if the occupier is either the ‘qualifying widow or widower’ of the previous occupier, or is a ‘qualifying member of that previous occupier’s family’.120 A widow or widower qualifies under this provision if he or she was residing with the previous occupier in the dwelling house immediately before his or her death.121 In the case of other members of his family, they qualify only if there was at the occupier’s death no qualifying widow or widower, and the member of the family concerned was residing in the dwelling house with the occupier at the time of, and for two years before, his or her death.122 If there is more than one member of the occupier’s family who qualifies, then in default of agreement, that member of the deceased’s family who the county court so decides shall be the qualifying occupier for the purposes of the Act.123 For these purposes, someone living with the deceased occupier ‘as’ his or her husband or wife is deemed to be his or her spouse.
One succession to an assured agricultural occupancy is, therefore, possible, subject to the same conditions as apply to succession to protected occupancies under the 1976 Act (as amended) where the occupier dies after the commencement of the 1988 Act.124 The spouse succeeding to an assured occupancy granted after commencement will have only an assured tenancy, however, whereas a protected or statutory tenancy by succession is available if the occupancy was originally granted pre-commencement;
(iv)Substitutionary licenses/tenancies. The agricultural worker condition is satisfied, and the occupier protected, if the tenancy or license which he currently enjoys was granted in consideration of his giving up possession of another dwelling house in respect of which, at the time of surrender, the condition was satisfied.125 In other words, the occupier who vacates voluntarily to enable his employer to relet to (for example) a replacement employee, does not thereby lose his assured occupancy status.
Similarly, the latter is preserved where there is a surrender and regrant of a license or tenancy in relation to the same dwelling, thus protecting the occupier’s status, even though the agricultural worker condition is not satisfied at the time of the regrant.126Cessation of agricultural worker condition
11.50 It will be noted that the assured agricultural occupancy will continue only if the agricultural worker condition is for the time being fulfilled with respect to the dwelling house.127 It is envisaged, clearly, that the condition can cease to be satisfied, in which event the distinctive protection of the assured agricultural occupancy provisions will cease to apply. In that event, also, the landlord would cease to have the benefit of the local authority’s obligation to consider rehousing agricultural employees.128 In this respect the assured agricultural occupancy provisions differ from the parallel provisions of the Rent (Agriculture) Act 1976, which make no provision for the cessation of ‘protected’ agricultural occupancy status if the occupier ceases to be a qualifying worker.129
11.51 Interpretation of the provisions providing for cessation of the agricultural worker condition is not without difficulty. It might be thought that the condition ceases to be satisfied upon an employee retiring, or ceasing to be employed in agriculture for upwards of 13 weeks, or on moving to part-time work. This is not, however, the case. By virtue of Sch 3, para 2(b) to the 1988 Act, the agricultural worker condition is satisfied if the occupier has been a qualifying worker at any time during the subsistence of the tenancy or license. Once the occupier has satisfied the condition by completing 91 weeks’ work in agriculture out of the last 104 he will remain protected – even if he retires, moves to part-time work or is dismissed. Once the condition is satisfied, the assured agricultural occupancy effectively acts in rem, and binds the dwelling irrespective of the personal employment status, thereafter, of the occupier.130 In this respect the 1988 Act follows the same policy as that of the Rent (Agriculture) Act 1976.
11.52 The agricultural worker condition will cease to be satisfied, as envisaged by the 1988 Act, only in very limited circumstances. These arise from the distinctive nature of the assured occupancy as a variant of the assured tenancy simpliciter. By virtue of s 5 of the 1988 Act a periodic assured tenancy cannot be brought to an end without a court order and, furthermore, on termination of a fixed term assured tenancy a statutory periodic tenancy arises. By virtue of s 5(3)(a) the latter takes effect in possession, immediately on the coming to an end of the fixed term tenancy. It is not merely a right in personam, as is the statutory tenancy under the Rent Act 1977 or Rent (Agriculture) Act 1976. Being an interest in possession the statutory tenancy can be assigned or devised by will, and can pass on intestacy. The 1988 Act implies an absolute covenant against assignment in all periodic lettings of residential accommodation, but not where a fixed term assured tenancy is granted. It follows that the agricultural worker condition could cease to be satisfied if a fixed term tenancy of tied agricultural accommodation were assigned to a non-qualifying worker, or any other person not satisfying the requirement of 91 weeks’ work in agriculture. Similarly, it could cease to be satisfied if, on the tenant’s death, the tenancy vested in a third party (other than a spouse with succession rights) and the latter was a non-qualifying person. Where a periodic assured tenancy devolves under the will or intestacy of the former tenant, the 1988 Act gives the landlord a mandatory ground for possession, providing proceedings are begun not less than 12 months after the tenant’s death.131 Cessation of the agricultural worker condition will be of most importance, then, where a fixed term tenancy has been granted to an agricultural employee and is subsequently assigned, devised by will, or passed on insolvency, to a non-qualifying occupant. It might be noted that a similar result was achieved by the 1976 Act, but by different means.
Section 4 of the 1976 Act conferred on the occupier a statutory tenancy, following termination of his license or tenancy, but this was a personal right which continued only if and so long as he [the occupier] occupied the dwelling house ‘as his residence’. On his ceasing to do so, the statutory tenancy ceases automatically. The inclusion of provisions in the 1988 Act for cesser of the assured agricultural occupancy is a necessary consequence of the nature of the assured tenancy as an interest in rem.Cesser of agricultural worker condition – effects
11.53 As we have seen, an assured agricultural occupancy can be either: (a) an assured tenancy; (b) a tenancy which would be assured if not let (for instance) at a low rent or (c) a license giving exclusive possession. By virtue of s 24(3) assured agricultural occupancies which are not assured tenancies, (ie (b) and (c) above) are to be treated as assured tenancies. It follows that if a tenancy at a low rent, or a license, ceases to be an assured agricultural occupancy, for instance due to cesser of the agricultural worker condition, the deeming provision in s 24(3) will cease to apply. Where an agricultural employee has a tenancy at a low rent or a license, therefore, cesser of the agricultural worker condition will entitle the landlord to repossess following notice to quit, unhampered by the restrictions on possession in the 1988 Act. If the tenancy was an assured tenancy, the rent payable being above the ratable value or rent thresholds, the 1988 Act will continue to apply. In this event, however, Ground 16 in Sch 2 will become available to the landlord (in addition to the other grounds for possession) and will give a discretionary ground for possession on the basis that the dwelling house was let in consequence of the tenant’s employment, which latter has now ceased. If a fixed term occupancy has been assigned in breach of a covenant against assignment or underletting, the landlord will also be able to invoke Ground 12 (breach of obligation other than as to rent).