Rights of agricultural occupiers

Agricultural occupiers live in accommodation let to them or arranged for them by their employer as a condition of their employment.

An agricultural occupier may be protected by the Housing Act 1988 if an agreement started on or after 15 January 1989.

If it began before 15 January 1989 they may be protected by the Rent (Agriculture) Act 1976.

For an agricultural occupancy to exist under either Act, the occupier needs to meet all of the following conditions.

They must:[1]

• be a 'qualifying worker'

• have a 'relevant licence or tenancy'

• occupy a dwelling house that is in 'qualifying ownership'

The definition of these terms is the same whether the occupier started working in agriculture before, on or after 15 January 1989.

Qualifying worker

A person is a qualifying worker if they have worked in agriculture for 91 weeks out of the 104 immediately preceding weeks either full time (this means not less than 35 hours a week)[2] or as a permit worker.[3]

The definition of agriculture includes:[4]

• dairy farming and the keeping and breeding of livestock

• the production of any consumable produce that is grown for sale or for consumption (eg crops, market gardening and fruit growing)

• the use of land as grazing, meadow or pasture land; or for use as orchard or osier land

• forestry

Livestock includes any animal (but not fish) that is kept for the production of food, wool, skins or fur or for use in any agricultural activity. It does not include other rural activities such as game keeping or hunting.

A week counts towards the threshold of 91 weeks even if the occupier does not work during that time if the occupier:[5]

• works less than 35 hours with the agreement of the employer

• takes a holiday to which they are entitled

• is absent from work with the employer's consent

• is not able to work due to injury or disease, whether or not it is caused by their job

If an occupier is not able to work due to injury or disease that has been caused by working in agriculture, then they are a qualifying worker even if they have worked in agriculture for fewer than 91 of the preceding 104 weeks.[6]

Relevant licence or tenancy

In the case of a tenancy or licence beginning before 15 January 1989, it is a relevant licence or tenancy if it relates to a separate dwelling house, which would be protected by the Rent Act 1977 if it was not excluded by virtue of the provisions relating to low rent or agricultural use.[7]

In the case of a tenancy or licence beginning after 15 January 1989, it is an assured agricultural occupancy if it either:

• is an assured tenancy but not an assured shorthold tenancy

• would have been an assured tenancy but not an assured shorthold tenancy if it was not excluded by virtue of the provisions relating to low rent or agricultural use

• is a licence granting exclusive occupation that, if it were a tenancy, would be in one of the two categories above[8]

The definition excludes a tenancy of an agricultural holding or a farm business tenancy.[9] The tenancy of an agricultural holding or a farm business tenancy are protected under the Agricultural Holdings Act 1986 and the Agricultural Tenancies Act 1995.[10]

Qualifying ownership

In order to be in qualifying ownership, the occupier's employer must either be their immediate landlord, or have arranged for the occupier to be housed in the accommodation.[11]

It does not matter if the occupier's employer does not own the property.[12]

An agreement made on or after 15 January 1989 is covered by the Housing Act 1988. The occupier usually has an assured agricultural occupancy.

Assured agricultural occupancy

An assured agricultural occupancy gives many of the same rights as an assured tenancy.[13]

Assured agricultural tenancies are ended in the same way as assured tenancies.

The agreement is not an assured agricultural occupancy if the landlord has created an assured shorthold tenancy.[14] If the occupation started on or after 15 January 1989 and before 28 February 1997, the landlord/employer could create an assured shorthold tenancy in the same way as any other landlord,[15] by the tenancy being for a fixed term of six months or more, the landlord serving a prescribed notice informing the occupier that the tenancy was a shorthold, and the agreement not having a break clause that allows the landlord to end the tenancy in its first six months.

If occupation started on or after 28 February 1997, to create an assured shorthold tenancy the landlord/employer must take action different to that of any other landlord.[16] They must serve a prescribed form that states the tenancy is an assured shorthold tenancy before the tenancy starts.[17]

For an assured agricultural occupancy to arise, the occupier cannot have been a protected occupier with the same landlord/employer immediately prior to a new agreement with the landlord/employer, or a protected occupier who has been provided with suitable alternative accommodation (protected in this case meaning either under the Rent Act 1977 or the Rent (Agriculture) Act 1976).[18]

An occupier is also an assured agricultural occupier if they were:

• formerly an assured agricultural occupier of another property that they gave up immediately before moving into their present property[19]

• an agricultural occupier of the same property, and they have been given a new licence or tenancy of the same property, but at the time of the regrant they were not working in agriculture[20]

Statutory tenancies

At the end of the tenancy term, a statutory periodic tenancy comes into existence, which is an assured agricultural occupancy, as long as the agricultural worker condition is fulfilled.[21]

Where rent was payable, the period of the statutory tenancy is that for which rent was payable (usually weekly or monthly). If no rent was paid, the period is monthly by default.[22]

Succession

If the agricultural occupier dies, then the occupier's spouse, civil partner or cohabitee succeeds to the assured agricultural occupancy if they was living with them at the time of their death.[23]

If there is no qualifying spouse, civil partner or cohabitee, then a member of the family who was residing in the dwelling house at the time the occupier's death and for two years before their death is entitled to succeed. [24]

Some agricultural occupiers whose tenancies started on or after 15 January 1989 do not come under the protection of the Housing Act 1988. For example, this could be because their tenancy or licence ended before they have been able to work full time for 91 weeks out of the last 104. These workers have limited security of tenure that arises from special provisions relating to possession under section 4 of the Protection from Eviction Act 1977.

Under section 4, a landlord cannot gain possession unless the court grants a possession order. The court has the power to suspend the execution of a possession order on such terms as it considers reasonable. The suspension would probably be for a period of about six weeks.

Where a possession order is made within six months of the date on which a tenancy or licence ended, the court has a duty to suspend the order for the rest of the six month period unless it is not reasonable to do so, and one of the following is satisfied:

• alternative accommodation is or will be made available

• efficient management of the land would be seriously prejudiced if an order was not granted

• greater hardship would be caused by suspending the order

• the tenant had been causing damage to the premises

All agreements made before 15 January 1989 are covered by the Rent (Agriculture) Act 1976. The occupier usually has a protected occupancy.[25]

Protected occupancy

A protected occupancy gives many of the same rights as a protected (regulated) tenancy.

A protected occupancy must be terminated in the same way as a protected tenancy.

In order for a protected occupancy to exist, the occupier must be an agricultural occupier. 

An occupier is also a protected occupier if they were:[26]

• formerly a protected occupier and they retire, resign, change jobs or to part-time work, or are dismissed

• formerly a protected occupier of another property that they gave up immediately before moving into their present property

• a protected occupier of the same property and they have been given a new licence or tenancy of the same property, but at the time of the re-grant they were not working in agriculture

The second and third situations apply even if the new agreement begins on or after 15 January 1989.[27]

No protected occupancy exists if:

• the accommodation is a hostel (the definition of this is where the accommodation consists of only one room with shared facilities, and there are at least three other rooms in the same building let out individually to other people)[28]

• there is a resident landlord[29]

• the accommodation is let with board and attendance (but only if the board and attendance is of significant value to the occupier - the provision of meals in the course of work will not be sufficient to take the occupier out of protection)[30]

• there is a long lease (over 21 years)[31]

• there is a tenancy of an agricultural holding[32]

• the interest of the landlord belongs to the Crown or a local authority[33]

The system of fair rents does not extend to protected occupiers during the contractual term. Employers and employees are free to agree their own terms.[34] In many cases, little or no rent is paid during the contractual term.

Agricultural statutory tenancies

Protected occupiers are protected even when their contractual agreement is ended. The contract may end when the worker receives a notice to quit, has a notice of increase in rent or has a fair rent registered.[35] When this happens, a statutory tenancy will arise, regardless of whether the original contract was a tenancy or a licence agreement.

The statutory tenancy continues for as long as the occupier occupies the premises as their residence. In one case, it was held that while occupation by a spouse of a sole protected occupier was enough for the statutory tenancy to arise, as the tenancy was not transferred to the non-tenant spouse, statutory protection ended on divorce.[36]

Where there are contractual terms in the original agreement, for example repairing obligations, these continue.

Where there are no contractual terms, certain conditions are imposed. These include the following:[37]

• the tenancy is weekly if it arises out of a contractual licence

• any services (e.g. electricity, water, sewerage) that were formerly provided by the landlord must continue to be made available

• restrictions on assignment, subletting and parting with possession

• the landlord is bound by the implied covenant to repair found in section 11 of the Landlord and Tenant Act 1985

• the tenant can end the tenancy by way of notice to quit

• the landlord and tenant can vary the terms of the tenancy by way of written agreement

• provisions regulating the rent that may be charged

The system of fair rent registration does apply to agricultural statutory tenancies that arise at the end of the contractual term. There are provisions for landlords to charge a provisional rent, up to certain limits, until a fair rent can be registered.[38]

Succession

For agricultural occupiers protected by the Rent (Agriculture) Act 1976, the rules on succession are similar to those for Rent Act tenants.

Only one succession is permitted. If the original occupier dies leaving a spouse, civil partner or cohabitee who was resident immediately before their death, then they are a statutory tenant so long as they occupied the dwelling house as their residence.

If there is no spouse, civil partner or cohabitee, a member of the family can succeed, but they must have lived with the original occupier for two years before their death and only succeed to an assured agricultural occupancy.[39]

Some agricultural occupiers whose tenancies started before 15 January 1989 do not come under the protection of the Rent (Agriculture) Act 1976. For example, this could be because their tenancy or licence ended before they have been able to work full time for 91 weeks out of the last 104.

These workers have limited security of tenure, which arises from special provisions relating to possession under section 4 of the Protection from Eviction Act 1977. Their position is the same as for agricultural occupiers whose occupancy started on or after 15 January 1989.