Mistaken protection

Hook v Hawkins (LANDLORD AND TENANT – Rent (Agriculture) Act 1976) (2019) UKUT 147 (LC)

It is not often we get cases involving the Rent (Agriculture Act) 1976. This Upper Tribunal appeal does concern that Act, albeit only to decide that the Act wasn’t involved any longer.

The FTT decision at issue was that it did not have jurisdiction to hear an application referring a notice of new rent under an assured tenancy agreement, because the tenant had a ‘protected tenancy’ not an assured tenancy.

The slightly convoluted history was that the tenant, Ms Hawkins, was previously married to Mr Hawkins. At the time of their marriage in 1975, he had started working for the then landowners farm. The then landowners had provided a house on the farms’ lands, with no rent paid. In 1990/1, the Hawkins had separated and divorced. Mr Hawkins moved away and ceased to work on the farm. Ms Hawkins remained living in the house on the farm, with the agreement of the then landowners and with no rent charged.

In 1993, the then landowners told Ms H the property was needed for another farm worker. The landowners provided a cottage in a village in the area for Ms H on £200 per month rent. She was told that when a suitable property came up on the farm, she would be informed.

In 1995, the present property on the farm lands became available and one of the original landowners agreed that Ms H and children could move in on rent of £200 per month. Ms H did some garden work and helped in the landowner’s house.

In 2015, the present landlord took title.

The Rent (Agriculture) Act 1976 provides at section 2

    1. – (1) Where a person has, in relation to a dwelling-house, a relevant licence or tenancy and the dwelling-house is in qualifying ownership, or has been in qualifying ownership at any time during the subsistence of the licence or tenancy (whether it was at the time a relevant licence or tenancy or not), he shall be a protected occupier of the dwelling-house if –

      (a) he is a qualifying worker, or

      (b) he has been a qualifying worker at any time during the subsistence of the licence or tenancy (whether it was at the time a relevant licence or tenancy or not).

      (2) Where a person has, in relation to a dwelling-house, a relevant licence or tenancy and the dwelling-house is in qualifying ownership, or has been in qualifying ownership at any time during the subsistence of the licence or tenancy (whether it was at the time a relevant licence or tenancy or not), he shall be a protected occupier of the dwelling-house if and so long as he is incapable of whole-time work in agriculture, or work in agriculture as a permit worker, in consequence of a qualifying injury or disease.

      (3) A person who has, in relation to a dwelling-house, a relevant licence or tenancy shall be a protected occupier of the dwelling-house if –

                        (a) immediately before the licence or tenancy was granted, he was a protected occupier or statutory tenant of the dwelling-house in his own right, or

                  (b) the licence or tenancy was granted in consideration of his giving up possession of another dwelling-house of which he was such an occupier or such a tenant.

(4) In this Act –

“protected occupier in his own right” means a person who is a protected occupier by virtue of subsection (1), (2) or (3) above;

“statutory tenant in his own right” means a person who is a statutory tenant by virtue of section 4(1) below and who, immediately before he became such a tenant, was a protected occupier in his own right.

The FTT had found that because the original tenancy was by a ‘protected occupier’, the statutory tenancy transferred to the later properties occupied by Ms H under s.2(3).

On appeal, the landlord’s analysis was that:

Mr H had been a protected occupier of the original property. This was under licence (as no rent), but it made no difference if it was a joint tenancy with Ms H. Ms H was not an agricultural worker, so not a protected occupier.

In 1990, when Mr H ceased to work on the farm and moved out, the licence – a personal right – ceased. However, his occupation of the property was preserved by way of section 1(6) of the Matrimonial Homes Act 1983, by which Ms H’s occupation was deemed to be Mr H’s occupation.

On decree absolute of the divorce in 1991, that deemed occupation by Mr H ceased. There had been no transfer of the tenancy by court order under section 7 Matrimonial Homes Act.

At this point, Ms H had no statutory tenancy or protected occupancy. It followed that when she was given a tenancy of the property and the village, she was not a person who ‘immediately before the tenancy was granted’ was a protected occupier or statutory tenant. Therefore s.2(3) did not apply. The tenancy of the property in the village, post dating the Housing Act 1988, could only be an assured tenancy. The same applied to the tenancy of the current property starting in 1995.

Ms H (represented pro bono by Brooke Lyne of Landmark Chambers) argued that:

The original property had been held to be a joint tenancy by the FTT, and there was no basis to change that finding of fact.

Ms H had been a protected occupier and became the statutory tenant after Mr H left the property and ceased working on the farm.

“The ending by divorce of the marriage between TH and the respondent made no difference to her status. The respondent was herself a protected occupier of the original property. Upon the termination of the tenancy (or licence), when TH ceased his employment, she became a statutory tenant by virtue of her own occupation. She had no need to rely upon any provision of the Matrimonial Homes Act 1983 which deemed her occupation as being equivalent to occupation by TH.”

Therefore, she was a statutory tenant when moved to the village property (and then to the current property).

Further, by reference to Durman v Bell (1988) 20 HLR 340, it was “proper to infer, from the respondent being allowed to continue in the original property for a considerable period (albeit without payment of rent) and then being transferred by agreement to another property where rent was payable, that the parties impliedly agreed to the creation of a statutory tenancy within the 1976 Act.”

“Ms Lyne also submitted that the Human Rights Act 1998 section 3 was relevant. There should not be discrimination on the grounds of marital status, see Re McLaughlin . The relevant statutory provisions should be “read down” so as to achieve a result that avoided such discrimination.”

The Upper Tribunal held:

In the absence of any documentary evidence to the contrary (or at all), it was taken that Mr H had a licence to occupy the original property, as a service occupancy. That licence was his alone and he was a protected occupier.

When Mr H moved out and stopped working on the farm, “the respondent did continue to occupy the original property as her residence. The respondent’s occupation was to be treated as occupation by TH, see Matrimonial Homes Act 1983 section 1(6). Accordingly a statutory tenancy under section 4 arose because TH had ceased to be a protected occupier on the termination of his relevant licence but he was treated as still being in occupation of the original property by virtue of the respondent’s occupation.”

That statutory tenancy could have been transferred to Ms H by the court under s.3 Matrimonial Homes Act, but this had not happened.

The statutory tenancy therefore ended on the divorce of Mr H and Ms H. Ms H was never a ‘qualifying worker’ so could not have a statutory tenancy in her own right, nor had she enjoyed a relevant licence or tenancy, as those were Mr H’s alone.

Durman v Bell concerned inferring a statutory tenancy for a person who had previously been a protected occupier, so was distinguished.

On the Section 3 Human Rights Act point, “there is no impermissible discrimination involved in treating the respondent’s status as different depending upon whether she was or was not married to TH. This does not involve discriminating against her on the basis of whether she was or was not married. It involves her position being different depending upon whether she was or was not married to a particular person.”

Appeal allowed. Ms H had an assured periodic tenancy and the FTT could hear the reference of notice of new rent proposed.

 

 

 

 

 

 

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in assured-tenancy, Housing law - All and tagged .

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