Agricultural Brief - Security of tenure

Published: 18/05/2016

If an agricultural worker lives in a house as part of their employment in agriculture it is possible under the tenancy or licence upon which they occupy the house, to gain security of tenure or a right to remain living in the property in situations where it may be thought that the tenancy or licence would end. Also such a tenancy or licence can be established in the first instance in circumstances where it may be thought that the qualifying criteria would not be satisfied.

Under the Rent (Agriculture) Act 1976 (R(A)A1976) as amended, if there is a relevant licence or tenancy which is not governed by other legislation, to a qualifying worker of a dwellinghouse in qualifying ownership such a protected occupancy can arise.

Protection under the R(A)A1976 applies to tenancies or licences entered into before 15 January 1989. After that date it is possible to obtain security of tenure by way of an assured agricultural occupancy for tenancies and licences entered into if they satisfy the criteria of the Housing Act 1988 (HA1988) as amended with regard to an agricultural worker condition and the type of tenancy or licence.

For the purpose of this article, tenancies or licences under both acts will be referred to as protected occupancies and the tenant referred to as a protected tenant.

One of the requirements to establish a protected occupancy is that with regard to the definition of a qualifying worker or the agricultural worker condition (depending on the legislation) that at the time protection is sought, the agricultural worker has worked for at least 91 out of the last 104 weeks in agriculture for the whole time. If an agricultural worker has taken time off work due to illness or injury, the period taken off can be counted towards the qualifying period criteria and the establishment of a protected occupancy.

If a protected occupancy does exist, the retirement of a protected tenant does not mean that the protected occupancy terminates even though their employment has ended. This applies regardless of the reasons for retirement for example whether due to reaching retirement age or retirement through ill health. If the protected tenant continues to live in the property they can continue with a form of protected occupancy either in its original form or by way of a varied tenancy or licence depending on the situation.

A further point to note is that the redundancy of a protected tenant does not mean that their protected occupancy terminates.

Rights of succession apply to protected occupancies. There is only one right of succession, but for a protected tenant who dies after 15 January 1989, their surviving spouse, civil partner or cohabitee who resides with them, can succeed the original protected tenant and become a protected occupier. If there is no spouse, civil partner or cohabitee surviving the original protected tenant it is possible for another family member to succeed and become a protected occupier so long as they were living with the protected tenant at the time of their death and for a period of two years before so. There are no further succession rights on the death of a successor.

It is also possible for the rights under a protected occupancy to transfer to another property. If a protected tenant retires for example, and the landlord wishes to move the retired tenant to an alternative property on the same farm, the protected occupancy will not automatically end on the protected tenant moving out and will most likely transfer to an alternative property. A protected tenant may agree to surrender their rights under the protected occupancy (along with any potential successor doing so) for financial consideration or other terms and then to enter into an assured shorthold tenancy of the alternative property which would not give such protected rights to the tenant. Caution should be taken with this approach however as it may not be effective in extinguishing the protected occupancy.

If a farm is sold and there is a tenant with a protected occupancy, this will not end on the sale of the farm by the landlord and the new owner will take the farm subject to a protected occupancy whether or not the employment continues.

The situations referred to apply equally to situations where there is a written agreement but also where there is no written agreement in place.

There are in some circumstances options available for landlords to gain possession on certain grounds where a protected occupancy exists, but it should be remembered that such protected occupancies do not end automatically as one may think that they would on the occurrence of the events mentioned in this article.

The content of this article is for general information only. For further information regarding security of tenure, please contact Ruth Lambillion or another member of Birketts' agriculture and estates team. Law covered as at May 2016.

This article is taken from our Agricultural Brief Summer 2016 publication. Similar articles can be found in the latest edition.

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