Assumed tenancy under Agricultural Holding Act 1986?
Discussion
My father unfortunately passed away at the end of last year and my brother and I are in the process of wrapping up his estate which is currently in probate. His main house of residence was provisionally sold prior to him passing away and we are waiting for probate to go through before we complete on the sale.
He purchased a plot of land adjacent to his house in 2004 which has now been included in the overall sale of his property. The intended new owners wish to have a horse on this land.
Back in 2004 my father entered into a gentleman's agreement with the local farmer to let him graze his sheep on the plot of land. Nothing was put in writing, no monies have ever changed hands, the only condition was that the farmer kept the land and hedges in good condition.
The farmer is now aware that the property has been sold and recently contacted the estate agent, saying he had rights to the land as a long term tenant. I then spoke to the farmer and told him in no uncertain terms that the land was being sold with the house and his access to the land would be coming to an end. He reiterated his rights under the 1986 Agricultural Holding Act of 1986.
To be honest I got really annoyed at this as he's paid no rent over the years and in my opinion has no right of access to this land. I wrote him a letter reiterating he has no right to it and referenced the 'Farmers Act' as I was all flustered.
I've now had this letter from his solicitor saying that as they have had continuous occupation of the land a tenancy is applicable under the 1986 Agriculatural Holding Act and want us to negotiate a surrender.
TBH I'm fuming. He's had free access to this land for 18 years (not 30), has never said thanks to my dad and is now creating a problem at a time I could well do without it.
Any advice? Thanks
He purchased a plot of land adjacent to his house in 2004 which has now been included in the overall sale of his property. The intended new owners wish to have a horse on this land.
Back in 2004 my father entered into a gentleman's agreement with the local farmer to let him graze his sheep on the plot of land. Nothing was put in writing, no monies have ever changed hands, the only condition was that the farmer kept the land and hedges in good condition.
The farmer is now aware that the property has been sold and recently contacted the estate agent, saying he had rights to the land as a long term tenant. I then spoke to the farmer and told him in no uncertain terms that the land was being sold with the house and his access to the land would be coming to an end. He reiterated his rights under the 1986 Agricultural Holding Act of 1986.
To be honest I got really annoyed at this as he's paid no rent over the years and in my opinion has no right of access to this land. I wrote him a letter reiterating he has no right to it and referenced the 'Farmers Act' as I was all flustered.
I've now had this letter from his solicitor saying that as they have had continuous occupation of the land a tenancy is applicable under the 1986 Agriculatural Holding Act and want us to negotiate a surrender.
TBH I'm fuming. He's had free access to this land for 18 years (not 30), has never said thanks to my dad and is now creating a problem at a time I could well do without it.
Any advice? Thanks
IANAL
According to this AHA tenancies only apply where created before 31/08/1995. Since this occured in 2004 it would be a Farm Business Tenancy (FBT). I guess if this guy's solicitor has been told he's been using the land for 30 years then they will have assumed - wrongly - that it was a AHA tenancy instead.
Notwithstanding that, and I'm sure this is far too simplistic a take on it, how can the farmer prove he had any agreed tenancy, with no contract, no evidence of rental payments, etc? What's stopping me saying that I too have a stake in your land and your father said it was ok?
I can't see how he can prove the existence of a tenancy agreement, and therefore how he has any rights at all?
According to this AHA tenancies only apply where created before 31/08/1995. Since this occured in 2004 it would be a Farm Business Tenancy (FBT). I guess if this guy's solicitor has been told he's been using the land for 30 years then they will have assumed - wrongly - that it was a AHA tenancy instead.
Notwithstanding that, and I'm sure this is far too simplistic a take on it, how can the farmer prove he had any agreed tenancy, with no contract, no evidence of rental payments, etc? What's stopping me saying that I too have a stake in your land and your father said it was ok?
I can't see how he can prove the existence of a tenancy agreement, and therefore how he has any rights at all?
Durzel said:
IANAL
According to this AHA tenancies only apply where created before 31/08/1995. Since this occured in 2004 it would be a Farm Business Tenancy (FBT). I guess if this guy's solicitor has been told he's been using the land for 30 years then they will have assumed - wrongly - that it was a AHA tenancy instead.
Notwithstanding that, and I'm sure this is far too simplistic a take on it, how can the farmer prove he had any agreed tenancy, with no contract, no evidence of rental payments, etc? What's stopping me saying that I too have a stake in your land and your father said it was ok?
I can't see how he can prove the existence of a tenancy agreement, and therefore how he has any rights at all?
Thank you, this is useful.According to this AHA tenancies only apply where created before 31/08/1995. Since this occured in 2004 it would be a Farm Business Tenancy (FBT). I guess if this guy's solicitor has been told he's been using the land for 30 years then they will have assumed - wrongly - that it was a AHA tenancy instead.
Notwithstanding that, and I'm sure this is far too simplistic a take on it, how can the farmer prove he had any agreed tenancy, with no contract, no evidence of rental payments, etc? What's stopping me saying that I too have a stake in your land and your father said it was ok?
I can't see how he can prove the existence of a tenancy agreement, and therefore how he has any rights at all?
warp9 said:
Thank you, this is useful.
This is particularly relevant to you I think:“Unlike AHA tenancies, there is no security of tenure under an FBT, which means that either party can give notice to quit and that can be affected relatively quickly and easily.”
I would not be surprised if the farmer was well aware of the difference in security between AHA and FBT tenancies, which is why he’s told his solicitors he’s been using it for 30 years. He (and perhaps they) hope you won’t know different.
GCH said:
Re: the 30 year claim..was the farmer using that land (for his sheep or whatever) with an agreement made with the previous owner of the land prior to your father purchasing it in 2004 and coming to an agreement with him then?
Even if that were the case the tenancy surely wouldn’t survive the land being sold in the first place, would it? He would have had to have made the same claim when the land was sold in 2004 (which one would presume would come out in searches)Plus, he had this gentleman’s agreement with the OP’s father, which suggests to me a new arrangement at the very least (otherwise what would he have done if OP’s father rejected the proposal?).
I think, at best, there was a tenancy from 2004 onwards, making it a FBT tenancy that the OP could serve notice on immediately to quit - going by that linked article.
IANAL though so seek professional advice.
GCH said:
Re: the 30 year claim..was the farmer using that land (for his sheep or whatever) with an agreement made with the previous owner of the land prior to your father purchasing it in 2004 and coming to an agreement with him then?
It's possible the farmer had an agreement with the previous land owner, however it's so long ago that neither me or my brother have any recollection or knowledge of what happened then.
Freshprince said:
If your eventually going to get professional advice, I would consult a rural land agent (RICS) and/or a property solicitor well-versed in agricultural land law. Don’t rely on your sales conveyancer under any circumstances, unless they are suitably qualified to advise.
I certainly will but I'm hoping this won't be necessary as I'm going to speak to the solicitor tomorrow and highlight the points Durzel has kindly made. My feeling is that he's trying it on as he's pissed off that we're unceremoniously kicking him off the land he's had free access to over the years. My Dad had something similar with some land he inherited from his parents. Farmer had been on for over 30 years, but was well into his 70s when my dad decided he wanted to sell the land 10 years ago.
Farmer was friendly with my grandparents and had rented the land on a handshake. Paid a few hundred a year for 8 acres, so little that he put the rent up himself when my dad never asked him for anything over the years.
My dad approached the farmer asking if he would be happy to vacate the land, he says "yes, I won't stand in the way of your inheritance"
So he instructs an agent who soon found a buyer. The agent quoted this act. and mentioned the farmer would likely want something, even though he was ready for retirement and had the land for peanuts over the years.
His not standing in the way of my dad's inheritance, was taking about 20% of the lands sale value.
Farmer was friendly with my grandparents and had rented the land on a handshake. Paid a few hundred a year for 8 acres, so little that he put the rent up himself when my dad never asked him for anything over the years.
My dad approached the farmer asking if he would be happy to vacate the land, he says "yes, I won't stand in the way of your inheritance"
So he instructs an agent who soon found a buyer. The agent quoted this act. and mentioned the farmer would likely want something, even though he was ready for retirement and had the land for peanuts over the years.
His not standing in the way of my dad's inheritance, was taking about 20% of the lands sale value.
JS748 said:
My Dad had something similar with some land he inherited from his parents. Farmer had been on for over 30 years, but was well into his 70s when my dad decided he wanted to sell the land 10 years ago.
Farmer was friendly with my grandparents and had rented the land on a handshake. Paid a few hundred a year for 8 acres, so little that he put the rent up himself when my dad never asked him for anything over the years.
My dad approached the farmer asking if he would be happy to vacate the land, he says "yes, I won't stand in the way of your inheritance"
So he instructs an agent who soon found a buyer. The agent quoted this act. and mentioned the farmer would likely want something, even though he was ready for retirement and had the land for peanuts over the years.
His not standing in the way of my dad's inheritance, was taking about 20% of the lands sale value.
Trying to understand this last sentence.. are you saying that him not standing in the way meant he was gifted (by your Dad?) 20% of the land sale value as a thank you, or that he changed his mind once he found out he could get some money out of it, and ended up getting 20%? It's somewhat unclear.Farmer was friendly with my grandparents and had rented the land on a handshake. Paid a few hundred a year for 8 acres, so little that he put the rent up himself when my dad never asked him for anything over the years.
My dad approached the farmer asking if he would be happy to vacate the land, he says "yes, I won't stand in the way of your inheritance"
So he instructs an agent who soon found a buyer. The agent quoted this act. and mentioned the farmer would likely want something, even though he was ready for retirement and had the land for peanuts over the years.
His not standing in the way of my dad's inheritance, was taking about 20% of the lands sale value.
Edited by Durzel on Thursday 19th May 10:57
JS748 said:
Was just a little sarcasm about him not standing in the way and then taking 20% of his inheritance. He either knew all along he could get the money or changed his mind once he knew his rights.
Ah right, so it was the latter. That's a shame. The smell of money often brings out the absolute worst in people.Update: just spoke to the solicitor. Asked him to state his case, he was very general - 30 years continuous using the land, rights under AHA. I asked what they wanted to negotiate a surrender, he said it hadn't been discussed. I said that as my father purchased the land in 2004 that FBT applied, no contract, no payment ever made, no proof that there has ever been continuous use of the land and that under FBT I can give him notice. He said that FBT doesn't apply and if it did I'd need to give 12 -24 months notice. He said it didn't matter that there was no contract, he could apply sqatters rights like if someone possessed a house for a long time. I said there was no proof of anything, he said this didn't matter, the farmer had cut the hedges. He did say that the farmer had vacated the land already. We then reached a bit of an impasse, he asked if I was willing to negotiate the matter with the farmer, I said absolutely not, that I cannot see that the farmer has any case at all. He said OK, he'll speak to the farmer. So we shall see.
I’m no expert on this but with regard to claims for adverse passion (squatter rights) the law was changed in recent years and to make such a claim they would need to make an application with supporting evidence to land registry to change the title and that would have to be unopposed.
https://www.gov.uk/government/publications/adverse...
https://www.gov.uk/government/publications/adverse...
warp9 said:
Update: just spoke to the solicitor. Asked him to state his case, he was very general - 30 years continuous using the land, rights under AHA. I asked what they wanted to negotiate a surrender, he said it hadn't been discussed. I said that as my father purchased the land in 2004 that FBT applied, no contract, no payment ever made, no proof that there has ever been continuous use of the land and that under FBT I can give him notice. He said that FBT doesn't apply and if it did I'd need to give 12 -24 months notice. He said it didn't matter that there was no contract, he could apply sqatters rights like if someone possessed a house for a long time. I said there was no proof of anything, he said this didn't matter, the farmer had cut the hedges. He did say that the farmer had vacated the land already. We then reached a bit of an impasse, he asked if I was willing to negotiate the matter with the farmer, I said absolutely not, that I cannot see that the farmer has any case at all. He said OK, he'll speak to the farmer. So we shall see.
Seems to be a lot of goalpost moving there.. one minute its AHA, then it's FBT (but disputed) but notice period is 12-24 months, then its squatters rights.The 12 months minimum notice period appears to be the case for FBT tenancies in effect for 2 years or more, so that part seems to be right.
I don't see how cutting someone's hedges is proof of a tenancy, or anything really. If I mow someone's garden when they're out, do I automatically become a tenant? That's good to know, I'll have to remember that one if I ever fall on hard times. How can the farmer prove that he hadn't just been cutting the hedges as a favour to your father?
Obviously what his solicitor says to you, what he/she thinks about the strength of his case, and what they tell the farmer is probably three opinions from the same person.
I would err on the side of caution on what you say when you speak to an opposing solicitor. I would presume all calls are recorded, and if you've said that "FBT applies" then that could perhaps be indicative of acknowledgement that there IS a tenancy in effect, and therefore the 12 months notice then potentially applies. I could be reading too much into a single phone call, though.
If it were me I'd be going with the angle that there is no substantive evidence of any tenancy being in effect (trimmed hedges don't count imo), no record of any contract, no exchange of money, etc. If your father had not told you that there was an agreement with the local farmer and you were estranged and had just pitched up with the house and land to sell, how would this person be able to evidence any agreement?
IANAL though (again) so go with whatever professional advice says.
Edited by Durzel on Friday 20th May 16:39
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