Davies v Davies

Respondent renting appellant’s land for seasonal mowing and grazing — Appellant allowing respondent to use land exclusively for one year on “one-off” basis — Judge finding such use giving rise to agricultural tenancy under section 2 of Agricultural Holdings Act 1986 — Appeal allowedThe parties farmed adjoining properties. The appellant’s property included a field that was rented by the respondent for seasonal mowing and grazing. In 1994, the appellant gave the respondent permission to plant a winter crop on condition that, having harvested the crop, the respondent would reseed the land with grass. The respondent subsequently claimed an agricultural tenancy under section 2 of the Agricultural Holdings Act 1986. It was common ground that seasonal mowing and grazing was specifically excluded from giving rise to an agricultural tenancy by section 2(3)(a) of the 1986 Act. However, the trial judge held that the terms of the arrangement between the parties had changed in 1994, so that the land was let to the respondent for agricultural purposes and with exclusive possession. Such an agreement fell within the ambit of section 2(1) of the 1986 Act and gave rise to a statutory agricultural tenancy. On appeal, the appellant contended that: (i) the respondent had provided no consideration for the arrangement, and had merely been granted a gratuitous licence to occupy land; (ii) the arrangement therefore fell outside the ambit of section 2(1) because, for the purposes of that section, the transaction had to be a contract enforceable by law (see Goldsack v Shore [1950] 1 KB 708); and (iii) in any event, the agreement was incapable of being modified consistently with its terms, as described in section 2, since it contained a condition subsequent that could not be satisfied on an annual basis. Held: The appeal was allowed. The respondent’s undertaking to reseed the area once he had harvested his crop was sufficient consideration to support the agreement as a contract in law, as the act was of value to the appellant. However, it was not possible to modify the agreement in order to enable it to operate as a yearly tenancy. If, in order to operate as a statutory tenancy, the agreement had to be so radically modified that it was transformed into something different, in other words, if it could not be modified consistently with its own terms, it could not then fall within section 2(1) of the 1986 Act: Harrison-Broadley v Smith (1964) 189 EG 513 considered. It was an essential part of the agreement that the land would be reseeded with grass when the winter crop had been harvested. It was impossible for the obligation to be performed each year, and postponing the reseeding obligation until the end of the tenancy would have meant that the annual obligation, as agreed by the parties, would no longer have included the respondent’s promise, which comprised the consideration for the appellant’s action. The agreement between the parties was for a licence to occupy for a period of less than one year, and was a once-and-for-all arrangement with a condition subsequent. It was not therefore protected by section 2(1) of the 1986 Act. Robert Craven (instructed by Peter Lynn & Partners) appeared for the appellant; Vivian Chapman (instructed by John Collins & Partners) appeared for the respondent. Vivienne Lane, barrister