Landlord and Tenant Flashcards by Kate Tomlinson

What is the process for undertaking a rent review under an AHA tenancy?

Agree new rent between the LL/T

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When were successional rights introduced for AHA tenancies and under which act?

1st July 1976.

Agriculture (Miscallenious Provisions) Act 1976

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What is the key date determining if an AHA tenancy has successional rights?

BEFORE 12th July 1984

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Between what dates would an AHA have successional rights?

1st July 1976 - 12th July 1984

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Between what dates would an AHA be a lifetime tenancy only?

12th July 1984 - 1st September 1995

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When did TRIG reforms become effective?

19th October 2006

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What does TRIG stand for and what do they do?

Tenancy Reform Industry Group.

They advise DEFRA on agricultural tenancy legislation.

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What changes did the Agriculture Act 2020 have on agricultural tenancies?

Schedule 3 made changes to allow tenants to request landlord’s consent for variation of terms of their tenancy, allowing them to:

access sources of funding and/or
to comply with a statutory duty.

It also provides a mechanism for resolving disputes that may arise
following the making of such a reques

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What is the difference between an AHA and FBT rent review?

AHA rent review can either be:

agreed between parties
if cannot agree, refer to statutory RR procedure to determine the rent properly payable (Schedule 2).

FBT:
- RR’s frequency and basis can be written into the tenancy agreement (S.9. TRIG reforms mean that if they are written into the tenancy, then they must be used from October 2006 onwards).
- use statutory provisions (S.13) if the agreement is silent.
‘the amount at which the holding might reasonably be expected to be let on the open market by a prudent and willing landlord to a prudent and willing tenant’.

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What is the difference between a lease and a license?

LEASE:
Exclusive possession (Street v Mountford 1985)
Fixed Term 
Payment of Rent 
If more than 3 years - written, deed.

LICENSE:
Not exclusive possession

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What is a tenancy at will?

Type of license
No specific term for use of land
can be terminated at any time

e.g. tenancy at will = no term

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What is a wayleave?

It is a temporary right that receives an annual payment. Runs with the person NOT the land.

E.g. electricity pole.

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What is an easmement?

It is a permanent right
Registered with Land Registery
Capital Payment
e.g. a prescriptive right of way can be obtained by continuous, uninterred use over 20 years?

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Can an FBT rent review be upward only?

No.

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What is a Calderbank offer?

Calderbank v Calderbank (1975)

A way to achieve early resolution for example in RRs.
Mitigate costs.
Must state ‘without prejudice save as to costs’

Letter must set out:

terms
time scale e.g. 21 days

Must be a genuine offer to settle.

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AHA - What section triggers a rent review?

S. 12

What is the process for undertaking a rent review under an AHA?

Either party serves notice (in the prescribed form) to review the rent. (s.12 notice). This must be 12 months (as per S.25) before the rent review date, which is the date that the tenancy could be terminated on.
LL and T negotiate following service the notice.
If cannot come to agreement before rent review date, must appoint an arbitrator

What is the process for undertaking a rent review under an AHA?

Either party serves notice (in the prescribed form) to review the rent. (s.12 notice). This must be 12 months (as per S.25) before the rent review date, which is the date that the tenancy could be terminated on.
LL and T negotiate following service the notice.
If cannot come to agreement before rent review date, must appoint an arbitrator or third party determination (as per Deregulation Act 2015).
Can negotiate after rent review date. If an agreement is not made, arbitrator will determine the ‘rent properly payable’ for the holding, using Schedule 2 provisions.

What is the effective date of the Agriculture Act 2020?

11th January 2021.

What did the Deregulation Act 2015 introduce, to assist with AHA rent reviews?

Enabled third party determination to be used in RR proceedings.
Must have been appointed 12 months before the rent review date.
Amended by the Agriculture Act 2020.

How was the rent review formula determined?

The rent formula was agreed in an industry agreement in 1984. (Following Estates Project v Greenwich Borough Council (1979))

How would an arbitrator determine the rent in a rent review?

Schedule 2 provisions…

‘The rent properly payable in respect of the holding is the rent at which the holding may reasonably be expected to be let by a prudent and willing landlord by a prudent and willing tenant, taking into consideration the:

terms of the tenancy
characteristic and situation of the holding
productive earning capacity
related earning capacity
comparable evidence.

Will also consider: 
o	Marriage value 
o	Existing rental 
o	CSS schemes and SSSI. 
(Trustees of JW Childs WT v Ankers (1996))

What considerations might the arbitrator take during an AHA RR, looking at ‘terms of the tenancy’?

IF THERE IS A TENANCY:
• Terms of the tenancy, any memorandums or letters
• Important terms include:
o Obligations: e.g. repairing and maintenance
o Restrictions e.g. no diversification, no sub-letting
o If the T has not complied with this, this will not be looked at = hypothetical tenant
NO TENANCY:
• Look at previous actions and behaviours of LL

What considerations might the arbitrator take during an AHA RR, looking at ‘character and situation of the holding’?

topographry
land type e.g. upland, lowland
• Location – near to markets/factories?
• Physical qualities:
o soil type
o layout
o aspect (N/S/E/W)
o drainage
o buildings

What considerations might the arbitrator take during an AHA RR, looking at the 'productive earning capacity' of a holding?

What is the farm capable of producing in the hands of a competent farmer? * Hypothetical tenant * Looking at the fixed equipment * Looking at soil types, drainage – what could be produced e.g. best suited to arable production? E.g. tonne per acre? OR is it best for beef production, even if the tenant is only using for pigs? * Rent may increase based on the fact a competent tenant may farm the holding in a more suitable way

What considerations might the arbitrator take during an AHA RR, looking at the 'productive earning capacity' of a holding?

What is the farm capable of PRODUCING in the hands of a COMPETENT FARMER managing a SUITABLE FARMING SYSTEM? * Hypothetical tenant * Looking at the fixed equipment e.g. what are the buildings used for? * Looking at soil types – what could be produced e.g. best suited to arable production? E.g. tonne per acre? OR is it best for beef production, even if the tenant is only using for pigs? * Rent may increase based on the fact a competent tenant may farm the holding in a more suitable way

Can the arbitrator use FBT comparable evidence?

No. Under Schedule 2 (1) (3) should find AHA comparables, not FBT. Valuers must ‘value out’ any differences.

What considerations might the arbitrator take during an AHA RR, looking at comparable evidence?

* Holding type * Availability of dwellings * Date of last RR * Farm size and location * Tenancy type and terms:

What must an arbitrator disregard when undertaking RR?

- occupation of the tenant - condition of the holding - any disrepair caused by the tenant. - T's buildings As per Schedule 2 (2).

What would you do if the FBT was silent on the RR clauses?

I would refer to the statutory regulations. - Every 3 years - S.10 Trigger notice (must be served 12 months min. prior. TRIG removed Max 24 month requirement). - If cannot agree, can appoint arbitrator (6 months before RR date) - Arbitrator will use basis;: S.13 'the rent at which the holding might reasonably be expect to be let on the open market by a prudent and willing landlord to a prudent and willing tenant.'

What changes to AHA did the Agriculture 2020 Act have?

1) Corrects when third party determination can be appointed - now within 12 months. (Deregulation Act 2015 introduced that parties could use third party determination. However, you had to appoint 12 months before rent review date) 2) During RRs under Sch. 2, arbitrator must disregard any payment being made by T to the LL for improvements made to the holding. (Aims to encourage investment into productivity on farms ) 3) CAAV and ALA can be used as arbitration bodies 4) Provided DEFRA with power to introduce legislation so that if a LL refuses T's consent, it can be referred to arbitration/TPD. Request must be: - T seeking variation of the tenancy - seeking consent so they can apply for financial assistance or comply with statutory duty (Aims to give T's better access to funding - public goods = public money) 5) Case A: Retirement of smallholding. Age changed from 65 to pensionable age. 6) Sucession on retirement - min 65 age retirement is abolished. Commecial test goes.

What changes to FBT did Agriculture Act 2020 have?

Less impact that was hoped for, but allowed ALA and CAAV to provide arbitration services.

What legislation was recently introduced to vary terms of AHA and FBT tenancies?

The Agricultural Holdings (Request for Landlord's Consent or Variation of Terms and Suitability Tests) Regulations 2021

What TRIG reform was recently introduced?

TRIG Code of Good Practice for projects, schemes and works requiring landlord's consent in agricultural tenancies.

What does the TRIG Code of Practice for Projects, Schemes and Works requiring landlord's consent for agricultural tenancies say?

1. Gives Context e.g. loss of BPS, climate change, biodiversity, tenancy law change. 2. General Guidance for a T or LL wanting to seek consent/vary terms.

What are the main headings in the 'General Guidance' section of the TRIG Code of Good Practice for projects, scheme and works requiring landlord's consent for agricultural tenancies?

1. Early consultation 2. Agreeing a timescale 3. Preparing details of proposal for consideration by the LL. 4. Landlord's consideration of the tenant;s proposal 5. Formal written agreement When LL/T are unable to reach an agreement - what can you do?