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Housing farmworkers – keeping control
Introduction
Prior to 1976 farmworkers had limited security of tenure and rent control in respect of their farm accommodation. The Rent (Agriculture) Act 1976 (the 1976 Act) sought to address that and achieve a balance between farmworker residential protection and the need for farmers to have an available housing stock for farming purposes. A critical part of that was the introduction of the use of Local Authorities in providing suitable alternative accommodation in relevant cases to assist in ‘the interests of efficient agriculture’.
Today there remain some farmworkers (and their successors) who still come within the provisions of the 1976 Act: indeed last year a case was fought – Hook v Hawkins – to establish rights under the 1976 Act. However, for all lettings since 15 January 1988, main protection now flows from provisions of the Housing Act 1988 (as amended) (the 1988 Act).
Qualification criteria
Both the 1976 Act and the 1988 Act use similar qualification requirements. In summary, the key ones are as follows: –
- Qualifying ownership
The property either needs to be owned by the landlord/farmer or arrangements made by the landlord/farmer with the owner for the property to be used for accommodation for workers employed in agriculture.
- Relevant licence/tenancy
The accommodation needs to be let by way of a licence or tenancy. Central to that assessment is whether the farmworker has exclusive possession of the property. Further, there must be no rent payable or, if rent is taken, then that rent must amount to less than £250 per annum (or £1,000 per annuum if the property is situated in Greater London).
- Qualifying worker
The farmworker needs to have been employed, in agriculture, whole time (35 hours a week) for 91 weeks out of 104 weeks. There are though exceptions for part time workers.
Protection obtained
If the qualifying criteria are met, the protection afforded to a farmworker is the security not to be evicted from the property during their employment and thereafter, provided they comply with any agreed (and implied) obligations of occupation in any written agreement and that none of the quite limited grounds of repossession (some of which are mandatory, some discretionary – see below) apply. There is also an element of rent level control after termination of employment – which differs slightly dependant on 1976 Act or 1988 Act protection. Further, the rights of a protected farmworker can pass by succession on their death to a spouse or member of their family.
Grounds for possession
As noted above, there are a number of discretionary and mandatory grounds which a landlord/farmer can seek to use to obtain repossession of a property. They are though quite limited and often are not applicable. In addition, for the discretionary grounds, there is an overall reasonableness test which also needs to be met.
Suitable alternative accommodation
Perhaps the most common ground sought to be used by a landlord/ farmer seeking repossession of a property let to a protected farmworker is the offer of suitable alternative accommodation. That is a discretionary ground. A suitable alternative property must be available (suitable in respect of rent/extent/needs of the farmworker and their family) and the court must consider that it is also reasonable to require the farmworker to move to that property.
If a landlord/farmer wants to take advantage of this repossession ground and has available other accommodation which is suitable then that must form the basis of the offer. If though none is available an application can be made to the relevant Local Authority if the property is needed to house a new farmworker and is required in the interests of efficient agriculture. Historically that assessment was undertaken by the Agricultural Dwelling House Advisory Committee (ADHAC) but is now dealt with internally by Local Authorities.
Assured shorthold tenancies (ASTs)
As a result of the issues arising from a protected 1976 Act or 1988 Act occupier, a landlord/farmer often seeks to rely on another method of letting property to farmworkers. That is the grant of an AST in accordance with the provisions of the 1988 Act.
A key requirement of an AST is the charging (and receiving) of a rent of more than £250 per annum (or £1,000 per annum if the property is in the Greater London area). This may necessitate payment to a farmworker of a higher wage with consequential increased national insurance contributions, but it is important that the act of payment of a rent by a farmworker is genuine.
The significant benefit of an AST to a landlord/farmer is that possession can be recovered at the end of the agreed contractual period of the AST or at any time thereafter by service of a two month prescribed notice. ( a section 21 notice ) This is often referred to as possession through the ‘no fault ground’.
However it is important that the provisions of the Deregulation Act 2015 and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 ( the 2015 AST Regulations ) are followed. Those provisions require the EPC (Energy Performance Certificate) for the relevant property, a gas safety certificate (if relevant) and a Ministry of Housing booklet entitled ‘How to Rent’ to be served on the tenant. Any of those documents not having been served will need to be served before any section 21 notice is served.
Trecarrell House Ltd v Rouncefield ( 2020 )
In this recent case ( which rejected the strict interpretation and consequently draconian outcome applied by a number of earlier County Court decisions …such as Caridon Property Limited v Monty Shooltz ) the Court of Appeal held that the service of an available pre tenancy gas safety certificate ( in this case service 9 months after the commencement of the tenancy ) was not contrary to the 2015 AST Regulations and did not prevent the Landlord from subsequently serving a valid section 21 notice. Further despite a further gas safety check having been carried out 13 months after the previous check which was a breach of the requirements of the Gas Safety ( Installation and Use ) Regulations 1998 ( the 1998 Regulations ) requiring annual checks, the Court held that that breach of the 1988 Regulations would not prevent reliance on a section 21 notice provided ( and this was remitted to the County Court for determination ) that the further gas safety certificate had been served on the tenant prior to the service of the section 21 notice.
Several issues arise from this judgment
- It is not clear if a pre tenancy gas safety check and available certificate (even if that certificate has not been served on the tenant pre occupation) needs to have been undertaken and if not the consequences of that.
- It is not clear that if over 12 months have passed since a previous gas safety check whether a further safety check needs to be carried out and certificate served on the tenant pre service of a section 21 notice and if not the consequences of that.
- It was noted that a breach of the 1988 Regulations was in any event a criminal offence
Best and recommended practice therefore remains for service on the tenant pre AST tenancy of the relevant EPC Certificate , current gas safety certificate and How to Rent booklet and thereafter for annual gas safety checks and service of updated certificate(s ) on the tenant be undertaken as required by relevant regulations.
Renters Reform Bill
Although at this time, the AST route is a favoured process for a landlord/farmer to maintain control of their housing stock the government are intending to abolish the no fault ground repossession process. This is addressed in the Renters Reform Bill. This Bill was included in the Queen’s Speech in December 2019, but at present (and perhaps not surprisingly due to other current issues), there is no set timetable for the relevant legislation to be introduced into Parliament. It will though most likely happen during this Government`s term of office and if the Bill is left unamended during its passage through Parliament will close down the AST route as the landlord’s preferred option in maintaining control in letting accommodation to farmworkers.
© Richard Bedford
June 2020
Contact: Richard Bedford, Ebery Williams, richard.bedford@eberywilliams.com