Leasehold Reform Act 1967, section 1(3)(b) — Agricultural Holdings Act 1986, section 1 — Right to enfranchisement excluded if house is comprised in an agricultural holding — Whether house so comprised — Agreed by parties that the provisions of the Agricultural Holdings Act 1986 should be regarded although it was enacted only after the proceedings in this case had been commenced — Also, the court accepted that the wording in section 1(2) of the 1986 Act reflected the interpretation given to section 1 of the 1948 Act by case law, particularly Howkins v Jardine — The present appeal was against the decision of the assistant recorder, who decided that the appellants’ claim to a right to acquire the freehold of the house in which they held the leasehold interest was defeated by section 1(3)(b), as the house was comprised in an agricultural holding
were that the house in question and the two acres of surrounding land which
were the subject of an assignment to the appellants in 1982 were originally
part of some 23 acres constituting an agricultural holding — By a deed of
partition in 1963, to which the landlord was not a party, the total holding was
divided, the house and its surrounding 2 acres being assigned to a predecessor
in title of the appellants and the remainder, then about 18 acres, assigned to
another person — It was common ground that up to the date of the partition the
whole of the land had been used for agriculture by way of trade or business —
After the assignment to the appellants no part of the property assigned to them
was used as agricultural land, but the remainder of the land continued to be
used as agricultural land
considered but rejected as a possible view that the effect of the partition and
the subsequent assignment to the appellants of their part was to create two
separate tenancies of two separate holdings — The land comprised in the
original lease had to be looked at as a whole despite the partition — So
regarded, the whole of the land, subject to an exception (the house and the 2
acres) which did not substantially affect the character of the tenancy, was let
for use as agricultural land — In principle the case was the same as Howkins v Jardine — The
court referred to the old learning as to partial assignments and found support
for their decision, by analogy, in Jelley v Buckman — Just as in Jelley
v
Buckman the suggested creation of two tenancies by a transaction to which he
was not a party would have been unjust to the tenant by imposing on him a
tenancy not protected by the Rent Act, so in the present case it would have
been unjust to the landlord by imposing on him a tenancy carrying a right of
enfranchisement — As the house in the present case was comprised in an
agricultural holding the tenants failed under section 1(3)(b) of the 1967 Act —
Appeal dismissed
The following
cases are referred to in this report.
Curtis v Spitty (1835) 1 Bing NC 756; 1 Hodg 153; 1 Scott 737, 4
LJCP 236, 31 (2) Digest (Reissue) 720
Gamon v Vernon (1678) 2 Lev 231; 31(2) Digest (Reissue) 720
Hare v Cator (1778) 2 Cow 766
Howkins v Jardine [1951] 1 KB 614; [1951] 1 All ER 320; [1951] 1 TLR
135, CA
Jelley v Buckman [1974] QB 488; [1973] 3 WLR 585; [1973] 3 All ER
853; (1973) 26 P & CR 215; [1973] EGD 426; 228 EG 1512, CA
Stevenson v Lambard (1802) 2 East 575
Wetherall v Smith [1980] 1 WLR 1290; [1980] 2 All ER 530; (1980) 40 P
& CR 205; [1980] EGD 62; 256 EG 163, [1980] 2 EGLR 6, CA
Whitham v Bullock [1939] 2 KB 81; [1939] 2 All ER 310; (1939) 55 TLR
617, CA
This was an
appeal by Richard Arthur Lester and his wife, Gloria Ann Lester, from the
decision of Mr Assistant Recorder Laity, at Taunton County Court, that the
appellants were not entitled to claim, under the Leasehold Reform Act 1967, the
freehold of Glebe House at Oare in Somerset and 2 acres of surrounding land, of
which the freehold owner was Mr John Ridd, the present respondent.
Sir Ashley
Bramall (instructed by Clarke Willmott & Clarke, of Taunton) appeared on
behalf of the appellants; Charles Lowry (instructed by Robbins Olivey &
Blake Lapthorn, agents for Hole & Pugsley, of Tiverton) represented the
respondent.
Giving the
first judgment at the invitation of Slade LJ, DILLON LJ
Taunton County Court on December 7 1987 raises a novel point which, despite the
admirably clear reserved judgment of the learned recorder, I have found very
difficult.
On December 13
1982 the appellants, Mr and Mrs Lester, purchased the leasehold interest in a
house, now known as Glebe House, at Oare, Somerset, and 2 acres of surrounding
land. From the date of purchase they occupied the house as their residence, and
by the originating application in these proceedings, issued on February 25
1986, they claimed a declaration that they were entitled to acquire the
freehold of the house and land thus assigned to them, under the Leasehold
Reform Act 1967, as amended. The requisite notice of their desire to have the
freehold had been given on December 23 1985 to the respondent, Mr John Ridd,
who is the owner of the freehold.
Section 1 (1)
of the 1967 Act, as amended, confers the right to acquire the freehold, subject
to certain conditions which are not in issue in the present case, when at the
time he gives notice of his desire to have the freehold the tenant has been
‘occupying the house as his residence’ for the last three years. That is
qualified, however, by section 1(3), which provides, so far as material:
(3) This Part of this Act shall not confer on the
tenant of a house any right by reference to his occupation of it as his
residence (but shall apply as if he were not so occupying it) at any time when
—
(b) it is comprised in an agricultural holding
within the meaning of the Agricultural Holdings Act 1948
The question,
therefore, in the present case is whether, during the time from the assignment
of the leasehold interest in it to the appellants to the time when they gave
their notice of their desire to have the freehold, Glebe House was comprised in
an agricultural holding. The learned recorder held that it was so comprised and
that the appellants were therefore not entitled to acquire the freehold
(because as a result of section 1(3) they were to be treated as not having
occupied Glebe House as their residence for the three years’ qualifying
period); that is the decision against which the appellants now appeal.
The
Agricultural Holdings Act 1948, which is referred to in section 1(3)(b)
of the 1967 Act, was amended by the Agricultural Holdings Act 1984, and both
have since been repealed by the present Act, the Agricultural Holdings Act
1986, which is a consolidating Act but was enacted only after these proceedings
had been commenced. Counsel were agreed, however, and we accept, that it is
convenient to look at the provisions of the 1986 Act, since in relation to what
is ‘comprised in an agricultural holding’ these provisions concisely set out
the effect of the corresponding provisions of the Agricultural Holdings Act
1948 as interpreted by the courts. Before I turn, however, to the provisions of
the 1986 Act, it is convenient to set out the facts.
By a lease of
January 17 1902 Glebe House and the 2 acres subsequently assigned to the
appellants were demised as part of a larger area of some 23 acres of former
glebe land by the then owner Thomas Ridd (a lineal ancestor of the present
respondent) to one Lethaby for a term of 99 years from December 25 1901 at a
yearly rent of £9 payable quarterly. Glebe House is described as a house in the
course of erection on the land. The lease seems to have been a building lease
and, not surprisingly in the case of a lease for a long term at a ground rent
(though contrary to the modern practice with agricultural tenancies), it did
not contain any restriction on assignment. It merely contained a covenant that
upon any assignment of the demised premises or any part thereof, notice of the
assignment would be given to the lessor.
The lease also
includes a covenant by the lessee not without the consent in writing of the
lessor to carry on any trade or business upon any part of the demised premises.
It is, however, common ground that, notwithstanding this covenant, the demised
premises were for very many years up to at least 1963 used for agriculture by
way of trade or business.
It is
sufficient to pick up the devolution of the leasehold title under the lease in
1955, when by a deed of December 7 1955 all the lands and premises comprised in
the lease were assigned for the full unexpired residue of the term of the lease
to Alfred John Burge and William John Burge. They were father and son and both
were farmers; they carried on farming in partnership together under the style
of A J Burge and Son, and the lands and premises so assigned to them were to be
held as part of their partnership property. Their partnership was dissolved,
however, on December 16 1963, with effect from April 5 1962, and by a deed of
partition of December 16 1963 Glebe House and the 2 acres subsequently assigned
to the appellants were assigned to A J Burge for the unexpired residue of the
term of the lease at a yearly rent of £5 while the rest of the land comprised
in the lease, namely, approximately 18 acres, was assigned to W J Burge for the
unexpired residue of the term at the yearly rent of £4. The assignment to the
appellants on December 13 1982 of Glebe House and the 2 acres was made by the
executors of A J Burge, who had died on August 1 1981.
In fact it was
not until after the assignment to the appellants that the landlord learned of
the partition effected between A J Burge and W J Burge in December 1963. The
ground rent had presumably continued to be paid by some member of the Burge
family without anyone particularly worrying which. It seems that A J Burge
occupied Glebe House from 1955 or thereabouts until soon after 1963, when he
moved elsewhere. Glebe House and the 2 acres were then let to a Mr Stevens, who
farmed other lands; at this stage Glebe House was known as Glebe Farm. Mr
Stevens died in May 1979, and Glebe House and the 2 acres were then let to
Philip Burge, a grandson of A J Burge and one of the two sons of W J Burge. Philip
Burge was also a farmer and, like his brother, in partnership with W J Burge in
farming various Burge farming lands.
Against this
background, the relevant provisions of the Agricultural Holdings Act 1986,
which are all contained in section 1, are as follows:
1.–(1) In this Act
‘agricultural holding’ means the aggregate of the land (whether agricultural
land or not) comprised in a contract of tenancy which is a contract for an
agricultural tenancy . . .
(2) For the purposes of this section, a contract
of tenancy relating to any land is a contract for an agricultural tenancy if,
having regard to —
(a) the terms of the tenancy,
(b) the actual or contemplated use of the land at
the time of the conclusion of the contract and subsequently, and
(c) any other relevant circumstances,
the whole of
the land comprised in the contract, subject to such exceptions only as do not
substantially affect the character of the tenancy, is let for use as
agricultural land.
(3) A change in user of the land concerned subsequent
to the conclusion of a contract of tenancy which involves any breach of the
terms of the tenancy shall be disregarded for the purpose of determining
whether a contract which was not originally a contract for an agricultural
tenancy has subsequently become one unless it is effected with the landlord’s
permission, consent or acquiescence.
(4) In this Act ‘agricultural land’ means —
(a) land used for agriculture which is so used
for the purposes of a trade or business . . .
(5) In this Act ‘contract of tenancy’ means a
letting of land, or agreement for letting land, for a term of years or from
year to year; . . .
Since, despite
the covenant against trade or business used in the 1901 lease, the use of the
land comprised in that lease as ‘agricultural land’ as defined in subsection
(4) was plainly acquiesced in by the landlord, it must follow, in the light of
subsection (3), that even if the letting of the land under the 1901 lease was
not originally a contract for an agricultural tenancy, it had become one well
before the 1963 partition.
The wording
used in subsection (2), ‘if . . . the whole of the land comprised in the
contract, subject to such exceptions only as do not substantially affect the
character of the tenancy, is let for use as agricultural land’, reflects the
interpretation put on the wording of the 1948 Act by this court in Howkins
v Jardine [1951] 1 KB 614 where Jenkins LJ said at p 628:
one must look
at the substance of the matter and see whether, as a matter of substance, the
land comprised in the tenancy, taken as a whole, is an agricultural holding. If
it is, then the whole of it is entitled to the protection of the Act. If it is
not, then none of it is so entitled.
In that case
there had been an agricultural tenancy of some land and three cottages, but the
cottages were subsequently sublet to persons not engaged in agriculture. It was
argued that for the purposes of the 1948 Act there must be deemed to have been
a partition of the tenancy as between agricultural and non-agricultural property,
so that the protection of the tenant under the 1948 Act would apply only to the
agricultural land and not the cottages, as the cottages were not used for
agriculture. That argument was, however, rejected by this court, because there
was no relevant provision in the Act for the partition or severance of an
agricultural tenancy. Somervell LJ commented, at p 623:
A cottage . .
. may at any time change hands. An agricultural worker may succeed to someone
not engaged in agriculture. To treat such cottages, covered in what is in
substance an agricultural tenancy, as coming within and going out of the Act
according to the occupation of the tenants at the moment
such a conclusion.
It is
established law that the protection of the Agricultural Holdings Act will be
lost if agricultural activity is wholly or substantially abandoned during the
course of the tenancy: Wetherall v Smith [1980] 1 WLR 1290. That
would apply, for instance, if the use of the land was changed to business
activities which do not fall within statutory definition of ‘agriculture’ (now
in section 96 of the 1986 Act). If part only of the land comprised in an
agricultural tenancy ceases to be used for agriculture and is used instead for
some other business, then on the Howkins v Jardine approach the
court would have to consider the land comprised in the tenancy, taken as a
whole, to see whether as a matter of substance, the land as a whole is an
agricultural holding. The correctness of that approach is underlined by the
wording used in section 1 of the 1986 Act, since the term ‘agricultural
holding’ (which is the term used in section 1(3)(b) of the Leasehold
Reform Act 1967 and therefore the term which is crucial to this case) is
defined as meaning ‘the aggregate of the land (whether agricultural land or
not) comprised in a contract of tenancy which is a contract for an agricultural
tenancy’ and the key to determining whether a contract of tenancy is a contract
for an agricultural tenancy is whether the whole of the land comprised in the
contract, subject to such exceptions only as do not substantially affect the
character of the tenancy, is let as agricultural land.
In the present
case the learned recorder has found as a fact that no part of the property
assigned to the appellants has been used as agricultural land since the
assignment to the appellants in December 1982. But the rest of the land
comprised in the 1901 lease, namely, the land assigned to W J Burge on the 1963
partition, has continued to be used as agricultural land.
One question
to be considered is whether the effect of the partition, or of the partition
and the subsequent assignment to the appellants of their part of the land, is
to create two separate tenancies of two separate holdings, each of which has to
be looked at on its own. But if that is not the effect, it is still necessary,
despite the partition, to look at the land comprised in the 1901 lease as a
whole. If the land is looked at as a whole, the answer, in my judgment, must be
— as on its own facts was the case in Howkins v Jardine — that
the whole of the land, with an exception only which does not substantially
affect the character of the tenancy, is still let for use as agricultural land.
If the land comprised in the 1901 lease has to be looked at as a whole the
appellants must fail because, on that approach, the house and the land assigned
to them, of which they desire to have the freehold, is still comprised in an
agricultural holding. If it were to be held, on looking at the land as a whole,
that the house and land assigned to the appellants are not comprised in an
agricultural tenancy, it would necessarily have to be held as a corollary that
the 18 acres allocated to W J Burge on the partition and still used as
agricultural land are also not comprised in any agricultural tenancy and do not
constitute or form part of an agricultural holding.
Is it, then,
possible to conclude that, as a result, direct or indirect, of the partition,
two separate tenancies have been created of two separate holdings, each of
which has to be looked at on its own?
The effect in
law of the partition of the demised premises in 1963 by the assignment of part
to A J Burge and the remainder to W J Burge for the residue then unexpired, in
each case, of the term of the 1901 lease was, notwithstanding that the landlord
did not concur in the partition, to sever the covenants of the lease so as to
follow the land. Thus, after comparable assignments of parts to separate assignees,
an action on the covenant would lie against each assignee of part for not
repairing his part: Stevenson v Lambard (1802) 2 East 575, at p
580 per Lord Ellenborough CJ. Moreover, established authority shows that
under the covenant for payment of rent the landlord could only sue an assignee
of part only of the premises for an apportioned part of the rent; see Gammon
v Vernon (1678) 2 Lev 231; Hare v Cator (1778) 2 Cow 766,
a decision of Lord Mansfield, and Stevenson v Lambard. Some
doubts as to these authorities were expressed by Tindal CJ in Curtis v Spitty
(1835) 1 Bing NC 756, but he none the less followed the earlier authorities;
his doubts are recorded in the judgment of this court in Whitham v Bullock
[1939] 2 KB 81, but it was not necessary to resolve them. The law has continued
to be stated in the textbooks on the subject as being that an assignee of part
of the land cannot be sued for the whole of the rent, but only for a
proportionate part thereof. However, the proportionate part which the landlord
could recover from an assignee of part only of the land would be the part of
the whole rent which the court thought fairly attributable to the part of the
land in question, and not necessarily the part of the rent which the several
assignees had agreed among themselves, without the concurrence of the landlord,
to be attributable to that part of the land. More important, however, it is
clear and undoubted law that after assignments of separate parts of the land
demised to separate assignees, the landlord can still distrain upon any part
for the rent which accrues due for the whole, because the rent for the whole is
considered to become due out of each and every part of the land: Curtis
v Spitty and Whitham v Bullock.
Is that enough
to achieve the position that as a result of the partition two separate
tenancies have been created of two separate holdings, each of which has to be
looked at on its own?
In Jelley
v Buckman [1974] QB 488 this court had to consider the converse position
where there had been a severance of the reversion. In that case the common
owner had granted a weekly tenancy of a dwelling-house and land. A successor in
title of the original landlord sold to a third party the reversion on the land,
but not the reversion on the dwelling-house, and the rent payable by the tenant
had consequently to be apportioned between the two reversioners. The
reversioner on the land claimed that the original tenancy had thereby been
divided into two separate tenancies, one of the dwelling-house and one of the
land, and that consequently the tenant no longer enjoyed the protection of the
Rent Acts in respect of the land. But this court rejected that contention.
Stamp LJ in giving the judgment of the court said, at p 497H, after setting out
the terms of section 140 of the Law of Property Act 1925, which is concerned
with the severance of the reversionary estate in any land comprised in a lease:
Now it is no
doubt correct that the effect of the legislation is that each reversioner has
rights and remedies similar to those which he would have had if he had granted
a separate tenancy of the land in respect of which he is the owner. But it is
one thing to say that each reversioner has rights and remedies similar to or
even indistinguishable from the rights and remedies which he would have had if
there had been two separate tenancies and quite another thing to say that this
operates against the tenant and he therefore has two tenancies; and we cannot
read section 140 as producing the latter result. We can find nothing in the
section to suggest for a moment that the legislature intended that following a
severance to which the lessee was not a party he should find himself holding
part of his land under one tenancy and part under another. In relation to a
lease for years as opposed to a weekly tenancy the change in the law would be
dramatic and had the legislature intended to create that result one would
expect to find some clear expression of that intention.
Where, as in
the present case, there has been severance of the leasehold interest between
several assignees, rather than a severance of the reversion, there is no
relevant statutory provision comparable with section 140. The reasoning of
Stamp LJ is, however, none the less cogent. The injustice that there would have
been to the tenant in Jelley v Buckman if by a transaction to
which he was not a party he had thrust upon him the two tenancies, one of the
dwelling-house and the other of the land, of which the latter would not carry
Rent Act protection, would be paralleled by injustice to the landlord in the
present case if by a transaction to which he was not a party he had thrust on
him a separate tenancy of Glebe House and the 2 acres since assigned to the
appellants which carried with it the potential right to enfranchisement under
the Leasehold Reform Act 1967, as amended. Moreover, the notion that two
separate tenancies were created by the partition of the leasehold interest
between two separate assignees is wholly inconsistent with the recognised
position in law that the whole of the rent under the original 1901 lease can,
despite the separate assignments, be recovered by distress levied on any part
of the land originally comprised in that lease.
I am therefore
constrained to reject the argument that was has happened here is that a
separate contract of tenancy has come about in relation to Glebe House and the
2 acres assigned to the appellants, which is not a contract for an agricultural
tenancy or a tenancy of an agricultural holding.
It follows for
the reasons given that I would — albeit with some reluctance — dismiss this
appeal.
Sir Ashley
Bramall has urged, with his accustomed skill, an alternative argument that a
conclusion that there is a single contract for an agricultural tenancy when one
part of the land is vested in one assignee of the term and the rest is vested
in a separate assignee for the remainder of the term is wholly inconsistent
with the scheme of the Agricultural Holdings Act. He refers to the provisions
of sections 8, 12, 13 and 28 of the 1986 Act and submits that these do not fit
at all where separate parts of the land are held by separate assignees for the
residue of the tenancy unless each such separate assignee is to
separate tenancy agreement relating to a separate holding. I see the force of
this, but am unable to find enough in the point to get over the appellants’
other difficulties, to which I have already referred. An assignment of separate
parts of leasehold property to separate assignees for the residue of the term
is nowadays tolerably rare, and it would not surprise me if this possibility
had been overlooked by the draftsmen of the successive Agricultural Holdings
Acts, including the 1986 Act.
Sir Ashley is,
of course, right in saying that on the facts Howkins v Jardine is
distinguishable in that the cottages in that case had been sublet and not
assigned for the residue of the tenancy. But I am concerned with the principle
of the decision which I find reflected in the wording of section 1 of the 1986
Act.
As indicated,
I would dismiss this appeal.
Agreeing,
SLADE LJ said: I, too, have found this case very difficult, but I agree that
the appeal must fail for the reasons given by Dillon LJ. I will add something
of my own out of deference to the argument of Sir Ashley Bramall, particularly
having regard to his submission that a number of the sections of the
Agricultural Holdings Act 1986 (‘the 1986 Act’) are not intended or apt to deal
with a situation where there are two or more separate tenants of a single
holding.
In the present
case all the affirmative conditions which have to be satisfied if the right to
enfranchisement conferred by section 1 of the Leasehold Reform Act 1967 (as
amended) is to be exercisable, by the applicants in respect of Glebe House and
the 2 acres of surrounding land (‘the Glebe House property’) are satisfied. The
only question is whether the negative condition imposed by section 1(3)(b)
is also satisfied, so as to deprive them of this right. At the time when they
gave notice of their desire to purchase the freehold of the Glebe House
property on December 23 1985, were the premises ‘comprised in an agricultural
holding within the meaning of the Agricultural Holdings Act 1948’? If so, section 1 of the 1967 Act does not
avail them.
It is
indisputable (and common ground) that immediately before the execution of the
deed of partition of December 16 1963 the Glebe House property was comprised in
one ‘agricultural holding’, consisting of the aggregate of the land comprised
in the contract for an ‘agricultural tenancy’ embodied in the lease of January
17 1902.
By the deed of
partition the lease of the Glebe House property was assigned to Alfred Burge
and the lease of the rest of the premises comprised in the 1902 lease was
assigned to William Burge. Clause 3 provided that the yearly rent of £9
reserved by that lease should be apportioned, so that the yearly rent of £5
should be exclusively payable in respect of the Glebe House property, in
exoneration of the rest of the premises comprised in the lease, and the yearly
rent of £4 should be exclusively payable in respect of the rest of the
premises, in exoneration of the Glebe House property.
If the
landlord had concurred in the apportionment of rent provided for by the 1963
deed of partition, this might well have given rise to the emergence of two new
‘contracts of tenancy’, by way of novation, to each of which the landlord was a
party — the first contract relating to the Glebe House property and providing
for the payment of £5 annual rent to the landlord, the second contract relating
to the rest of the premises comprised in the 1902 lease and providing for the
payment of £4 annual rent. Whether or not the landlord’s concurrence had this
effect would have depended on the manner and terms of his concurrence. If
two new contracts of tenancy had emerged, so too would two new and separate
‘agricultural holdings’ (at that stage, it would appear, the contemplated use
of both units was still for the purpose of the trade or business of
agriculture).
However, the
parties to the 1963 deed of partition did not obtain the landlord’s consent to
any apportionment of the rent. The evidence of Mr Henry John Ridd, who became
the landlord after the death of his father in 1960, was that Mr A J Burge paid
him the full rent of £9 per annum and that after his death (which occurred in
1981) his widow paid this entire rent. A letter dated April 27 1983 from the
landlord’s solicitors to the appellants’ solicitors records the rejection by
the landlord of a tender by the appellants of an apportioned £5 rent.
Section 190(3)
of the Law of Property Act 1925 (so far as material) provides:
Where in a
conveyance for valuable consideration, other than a mortgage, of part of land
comprised in a lease, for the residue of the term or interest created by the
lease, the rent reserved by such lease or a part thereof is, without the
consent of the lessor, expressed to be —
. . .
(c) apportioned between the land conveyed or any
part thereof and the land retained by the assignor or any part thereof;
then, without
prejudice to the rights of the lessor, such charge or apportionment shall be
binding as between the assignor and the assignee under the conveyance and their
respective successors in title.
Section 190(6)
provides that the section applies only if and so far as a contrary intention is
not expressed in the conveyance. Section 190(7) provides (inter alia)
that the remedies conferred by the section do not apply where ‘the rent is . .
. legally apportioned with the consent of the owner or lessor’.
As the words
‘without prejudice to the rights of the lessor’ in section 190(3) implicitly
recognise, an apportionment of rent effected without the landlord’s consent on
an assignment of part of the demised premises is not, at least in all respects,
binding on the lessor. It does not affect the landlord’s right to distrain on
that part for the rent of the whole: see Whitham v Bullock [1939]
2 KB 81 at p 86 per Clauson LJ. On the authorities it is not entirely
clear whether the landlord ceases to be in a position to sue anyone except the
original lessee (whom he can sue in contract) for the whole rent and can only
sue the tenants of the severed parts in respect of a proportion of the rent.
This court expressly left this question open in Whitham v Bullock
(see ibid). Nevertheless, I think it is clear that if the landlord can
only sue the tenants of the severed parts in respect of a proportion of the
rent, such proportion is a fair proportion to be determined by the court. It is
not necessarily the proportion which the assignor and assignee may have agreed
between themselves. The proportion thus agreed is not as such binding on the
landlord.
Throughout, it
has to be remembered that the definition of a ‘contract for an agricultural
tenancy’ in section 1(2) of the 1986 Act directs attention to ‘the whole of the
land comprised in the contract’. In the circumstances of this case there has
been only one relevant ‘contract of tenancy’, that is to say the contract
embodied in the 1902 lease. So far as the landlord is concerned, a second
contract has never been made and no part of the premises comprised in the
original contract has ever been removed from it.
With all these
points in mind, I cannot accept the submission that the execution of the 1963
deed of partition, without the landlord’s consent, had the effect of imposing
on him the creation of two new and distinct ‘agricultural holdings’ with
separate tenants of each holding and with all the other consequences attendant
on the creation of two new and distinct holdings. In my judgment, if he had
known about the execution of the deed of partition, he would have been entitled
to say that, so far as he was concerned, the relevant ‘agricultural holding’
was the same as it always had been, namely the whole of the premises comprised
in the 1902 lease.
I recognise
that, as Sir Ashley Bramall cogently pointed out, this view of the matter gives
rise to potential problems in applying certain provisions of the 1986 Act; for
example, sections 8, 12, 13 and 14, which do not appear to contemplate or cater
adequately for the case where there are separate tenants of separate parts of
one agricultural holding. Nevertheless, the existence of such problems does
not, in my judgment, compel or justify the acceptance of the submission
referred to in the immediately preceding paragraph.
I would add
these observations. Section 6 of the 1986 Act now contains provisions which, if
invoked, may effectively enable the landlord of an agricultural holding to
prevent future assignments of all or part of the tenancy without his written
consent, even though the original tenancy agreement contains no such
restriction: see particularly sections 6(1), 6(5) of and Schedule 1, para 9, to
the 1986 Act. Having regard to para 9, I do not think the legislature in the
1986 Act entirely overlooked the possibility of assignments of separate parts
of leasehold property to separate assignees for the residue of the term.
However, it may well have considered that such assignments would be rare in
practice. Equally, in drafting sections 8, 12, 13 and 14, it may well have
overlooked the possibility of such assignments taking place without the
landlord’s consent. For the reasons given above, assignments of parts of the
demised premises with the landlord’s consent are much less likely to
raise problems in practice.
Be this as it
may, I am satisfied that after the execution of the 1963 deed of partition the
entirety of the premises demised by the 1902 lease remained one single
‘agricultural holding’ for the purpose of the Agricultural Holdings Acts. The
assignment of December 13 1982 relating to the Glebe House property made by the
executors of
did not, in my judgment, alter the situation. Thereafter, the Glebe House
property, which up to that time, on the recorder’s findings of fact, had been
used for the purposes of a trade or business of agriculture, ceased to be so
used. In my judgment, however, also on the recorder’s findings of fact, if the
land comprised in the 1902 lease is looked at as a whole (which I think it must
be), that land, with an exception which does not substantially affect the
character of the tenancy (namely the Glebe House property), has still continued
to be ‘let for use as agricultural land’ within the meaning of section 1(2) of
the 1986 Act.
It follows
that, in my judgment, on December 23 1985: (1) the Glebe House property was
still comprised in an agricultural holding within the meaning of the 1948 Act,
consisting of the whole of the premises demised by the 1902 lease; (2) section
1(3)(b) of the 1967 Act accordingly operated so as to deprive the appellants of
any right of enfranchisement which they might otherwise have enjoyed.
For these
reasons, and the other reasons given by Dillon LJ, I, too, would dismiss this
appeal.
STAUGHTON LJ
agreed with both judgments and did not add anything.
The appeal
was dismissed with costs, with usual order nisi against the legal aid fund.
Appellants’ liability as regards costs was fixed at ‘nil’. An order for legal
aid taxation of the appellants’ costs was made and the order for costs below to
stand undisturbed.
