17 September 2019 - Article
It is often a feature of an Estate or rural business that its employees live in an Estate property. However, the treatment of agricultural workers is peculiar and may catch out the unwary. Considerable care must be taken when granting occupancies and accommodation to employees who are, or may become, predominately employed in agriculture. The inherent danger is that the occupation granted could become an ‘assured agricultural occupancy’, which confers considerable security of tenure on the employee. This, in turn, will severely limit the landlord’s ability to remove the tenant from the let property. This security of tenure will subsist even if the employment is terminated.
The devil is to be found in the detail of the Housing Act 1988, which provides that an assured tenancy will no longer be an assured tenancy if the tenant fulfills the ‘agricultural worker conditions’. These conditions include working 91 weeks in agriculture out of the preceding 104 weeks. Other conditions require that the dwellinghouse must have been in ‘qualifying ownership’ during the subsistence of the tenancy. In brief, this means that the employer must be either the owner of the dwellinghouse or someone who has made arrangements with the owner for it to be used to house agricultural workers.
The way to avoid this problem is to serve a notice (in prescribed form) on the tenants stating that the tenancy is to be an assured shorthold tenancy. The landlord will also need to satisfy the usual criteria to create an assured shorthold tenancy, but, importantly, the service of this prescribed notice will prevent the tenancy from becoming a protected agricultural tenancy.
It should also be noted that an employee’s status may change over time. An employer should, therefore, keep a close eye on his employees to ensure that the work that they do has not shifted predominately towards agricultural work e.g. a gardener whose role evolves. Again, this will help to prevent unwittingly conferring a higher degree of security of tenure on the tenant.