Statutory Instruments
LANDLORD AND TENANT
Made
8th April 1987
Laid before Parliament
21st April 1987
Coming into force
12th May 1987
The Lord Chancellor, in exercise of the powers conferred on him by section 29 of, and paragraphs 1 to 6 (inclusive) and 8 to 13 (inclusive) of Schedule 4 and paragraph 5 of Schedule 5 to, the Agricultural Holdings Act 1986(1), and of all other powers enabling him in that behalf, after consultation with the Council on Tribunals as required by section 10 of the Tribunals and Inquiries Act 1971(2), hereby makes the following Order:
1. This Order may be cited as the Agricultural Holdings (Arbitration on Notices) Order 1987 and shall come into force on 12th May 1987.
2.—(1) In this Order, unless the context otherwise requires—
“the 1986 Act” means the Agricultural Holdings Act 1986;
“notice to remedy” means a notice served on the tenant of an agricultural holding for the purposes of Case D requiring him to remedy a breach of a term or condition of his tenancy;
“notice to do work” means a notice to remedy which requires the doing of any work of repair, maintenance or replacement;
“termination”, in relation to an arbitration, means the date on which the arbitrator’s award is delivered to the tenant.
(2) Any reference in this Order to a numbered article shall be construed as a reference to the article bearing that number in this Order.
3—(1) Where a tenant on whom a notice to do work has been served wishes to have determined by arbitration under the 1986 Act any of the following questions, namely—
(a)his liability under the terms or conditions of his tenancy to do any of the work specified in the notice,
(b)the deletion from the notice of any item or part of an item of work on the ground that it is unnecessary or unjustified, or
(c)the substitution, in the case of any item or part of an item of work, of a different method or material for the method or material which the notice would otherwise require to be followed or used,
he shall do so by service of a notice requiring the question or questions to be determined by arbitration under the 1986 Act.
(2) A notice under paragraph (1) above shall be in writing, and shall be served on the landlord within one month after the service on the tenant of the notice to do work.
(3) A notice under paragraph (1) above shall specify, as the case may be—
(a)any items in respect of which the tenant denies liability,
(b)any items or parts of items which the tenant claims to be unnecessary or unjustified, and
(c)any method or material in respect of which the tenant desires a substitution to be made.
4.—(1) Where the tenant on whom a notice to do work has been served wishes to have determined by arbitration under the 1986 Act in addition to a question specified in article 3(1) any other question arising under that notice which is not a question so specified, he shall do so by serving on the landlord within one month after the service of the notice to do work a notice in writing requiring the question to be so determined.
(2) Where the tenant on whom a notice to do work has been served does not wish any question specified in article 3(1) to be determined by arbitration under the 1986 Act but wishes to have determined by such arbitration any other question arising under that notice, he shall do so—
(a)by serving on the landlord within one month after the service of the notice to do work a notice in writing requiring the question to be so determined, or
(b)by serving a notice in accordance with article 9.
(3) Nothing in this article shall preclude a tenant who has required arbitration under this article and who has been found liable to comply with a notice to do work or with any part of it from subsequently requiring arbitration under article 9 on the ground that, in consequence of anything happening before the expiration of the time for doing the work as extended by the arbitrator in pursuance of article 6(2), it would have been unreasonable to require the tenant to do the work within that time.
5. In addition to any powers otherwise available to him, an arbitrator may—
(a)in relation to any question specified in article 3(1)(b), modify a notice to do work by deleting any item or part of an item of work specified in the notice as to which, having due regard to the interests of good husbandry as respects the agricultural holding to which the notice relates and of sound management of the estate of which that holding forms part or which that holding constitutes, the arbitrator is satisfied that it is unnecessary or unjustified, and
(b)in relation to a question specified in article 3(1)(c), modify a notice to do work by substituting, in the case of any item or part of an item of work specified in the notice, a different method or material for the method or material which the notice would otherwise require to be followed or used where, having regard to the purpose which that item or part is intended to achieve, the arbitrator is satisfied that—
(i)the last-mentioned method or material would involve undue difficulty or expense,
(ii)the first-mentioned method or material would be substantially as effective for that purpose, and
(iii)in all the circumstances the substitution is justified.
6.—(1) Where a tenant requires any question to be determined by arbitration under article 3 or 4, the time specified for doing the work which is the subject of the arbitration shall be extended until the termination of the arbitration.
(2) Where the arbitrator finds that the tenant is liable to comply with a notice to do work or with any part of it, he shall extend the time for doing that work by such further period as he thinks fit.
7.—(1) Where the time specified for doing any work is extended under article 6(2), the arbitrator may, either of his own motion or on the application of the landlord made not later than fourteen days after the termination of the arbitration, specify a date for the termination of the tenancy by notice to quit in the event of the tenant’s failure to do the work within the extended time.
(2) A date specified under paragraph (1) above shall not be earlier than—
(a)the date on which the tenancy could have been terminated by notice to quit served on the expiration of the time originally specified in the notice to do work, or
(b)six months after the expiration of the extended time,whichever is the later.
(3) Where the landlord applies to the arbitrator under paragraph (1) above, he shall at the same time give written notice of the application to the tenant (except where the application is made at the arbitration) and the tenant shall be entitled to be heard on the application.
(4) A notice to quit on a date specified under paragraph (1) above shall be served on the tenant within one month after the expiration of the extended time, and shall (subject to any right to contest its effectiveness available to the tenant) be valid notwithstanding that it is served less than twelve months before the date on which the tenancy is to be terminated or that that date is not the end of a year of the tenancy.
8. Where, on an arbitration relating in whole or in part to the question specified in article 3(1)(a), it appears to the arbitrator that the tenant has done work required by a notice to do work which he was under no obligation to do, the arbitrator shall determine the reasonable cost of such work, which shall be recoverable from the landlord by the tenant in accordance with section 85(1) of the 1986 Act.
9. Where it is stated in a notice to quit an agricultural holding or part thereof that the notice is given for one or more of the reasons specified in Case A, B, D or E and the tenant wishes to contest any question arising under the provisions of section 26(2) of, and Schedule 3 to, the 1986 Act relating to any of the reasons so stated, he shall within one month after the service of the notice serve on the landlord notice in writing requiring the question to be determined by arbitration under the 1986 Act.
10. A notice under article 9 requiring arbitration under the 1986 Act shall cease to be effective three months after the date of the service of that notice unless before the expiry of those three months—
(a)an arbitrator has been appointed by agreement between the parties, or
(b)(in default of such agreement) an application has been made by the tenant or the landlord under paragraph 1 of Schedule 11 to that Act for the appointment of an arbitrator,
for the purposes of that arbitration.
11. Where—
(1) an arbitration is required under article 9 in respect of a notice to quit which is capable of taking effect either as a notice to quit to which section 26(2) of the 1986 Act applies or in the alternative as a notice to quit to which section 26(1) of that Act applies, and
(2) in consequence of the arbitration that notice takes effect as a notice to quit to which section 26(1) applies,
the time within which a counter-notice may be served by the tenant on the landlord under section 26(1) of the 1986 Act shall be one month from the termination of the arbitration.
12. Where a tenant requires a question arising out of a notice to quit to be determined by arbitration under article 9, the operation of the notice shall be suspended until—
(a)the expiry of the time fixed in article 10 for appointing an arbitrator by agreement or for making an application under paragraph 1 of Schedule 11 to the 1986 Act, or
(b)where any such appointment or application has been duly made, the termination of the arbitration.
13.—(1) Where—
(a)a notice to quit has effect in consequence of an arbitration under article 9, or the Tribunal have consented to the operation of the notice under section 26(1) or 28(2) of the 1986 Act or article 15(5), and
(b)the notice would, but for the provisions of this article, come into operation on or within six months after the termination of the arbitration, or the giving of the consent,
the arbitrator or the Tribunal may, either of his or their own motion or on the application of the tenant made not later than fourteen days after the termination of the arbitration or the giving of the consent, postpone the termination of the tenancy for a period not exceeding twelve months.
(2) Where the tenant applies to the arbitrator or the Tribunal under paragraph (1) above, he shall at the same time give written notice of the application to the landlord (except where the application is made at the arbitration or at the hearing before the Tribunal) and the landlord shall be entitled to be heard on the application.
14. Where—
(a)notice to quit is stated to be given by reason of the tenant’s failure to remedy a breach of any term or condition of his tenancy—
(i)within the time specified in a notice to remedy, or
(ii)within that time as extended by the landlord, or in pursuance of article 6 or of this article, and
(b)it appears to the arbitrator on an arbitration under article 9 that, notwithstanding that the time originally specified or extended was reasonable, it would, in consequence of anything happening before the expiration of that time, have been unreasonable to require the tenant to remedy the breach within that time,
the arbitrator may treat the time as having been extended, or further extended, and may make his award as if the time had not expired; and where the breach has not been remedied at the date of the award, the arbitrator may extend the time by such period as he considers reasonable, having regard to the length of time which has elapsed since the service of the notice to remedy.
15.—(1) Where the time specified for doing any work is extended under article 14, the arbitrator may, either of his own motion or on the application of the landlord made not later than fourteen days after the termination of the arbitration, specify a date for the termination of the tenancy by a subsequent notice to quit in the event of the tenant’s failure to do the work within the extended time.
(2) A date specified under paragraph (1) above shall not be earlier than—
(a)the date on which the tenancy could have been terminated by the original notice to quit (that is, the notice which was the subject of the arbitration), or
(b)six months after the expiration of the extended time,
whichever is the later.
(3) Where the landlord applies to the arbitrator under paragraph (1) above, he shall at the same time give written notice of the application to the tenant (except where the application is made at the arbitration) and the tenant shall be entitled to be heard on the application.
(4) A notice to quit on a date specified under paragraph (1) above shall be served on the tenant within one month after the expiration of the extended time, and, subject to paragraph (5) below, shall be valid notwithstanding it is served less than twelve months before the date on which the tenancy is to be terminated or that that date is not the end of a year of the tenancy.
(5) Where a subsequent notice to quit is given in accordance with paragraph (1) above in a case where the original notice to quit included a statement in accordance with Case D to the effect that it was given by reason of the tenant’s failure to comply with a notice to do work, then, if the tenant serves on the landlord a counter-notice in writing within one month after the giving of the subsequent notice to quit (or, if the date specified in that notice for the termination of the tenancy is earlier, before that date), the subsequent notice to quit shall not have effect unless the Tribunal consent to its operation.
(6) On an application made for the consent of the Tribunal under paragraph (5) above on the part of the landlord, the Tribunal shall consent to the operation of the notice to quit unless it appears to them, having regard—
(a)to the extent to which the tenant has failed to comply with the notice to do work,
(b)to the consequences of his failure to comply with it in any respect, and
(c)to the circumstances surrounding any such failure,
that a fair and reasonable landlord would not insist on possession.
16.—(1) Section 26(1) of the 1986 Act shall not apply where notice to quit an agricultural holding or part thereof is given to a sub-tenant by a tenant who has himself been given notice to quit that holding or part thereof and the fact that the tenant has been given such notice is stated in the notice given to the sub-tenant.
(2) Such a notice given to a sub-tenant shall have effect only if the notice to quit given to the tenant by the landlord itself has effect.
(3) Where a tenant accepts notice to quit part of a holding as notice to quit the whole under section 32 of the 1986 Act, then, for the purpose of this article, the notice given by him shall be deemed to be a notice to quit the entire holding.
17.—(1) In any case to which, notwithstanding the existence of any such circumstances as are mentioned in Cases B to G, section 26(1) of the 1986 Act applies by virtue of the modification of that section by paragraph 3 of Schedule 5 to that Act, paragraphs (2) to (4) below shall have effect.
(2) Where, on an application by the landlord for the consent of the Tribunal to the operation of a notice to quit, it appears to the Tribunal that the notice to quit was given for one or more of the reasons specified in Case B, D or E, and that it is expedient that any question arising under the provisions of section 26(2) of, and Schedule 3 to, the 1986 Act relating to any of the reasons so stated should be determined by arbitration between the landlord and tenant under that Act before the Tribunal consider whether to grant or withhold consent to the operation of the notice to quit, they may require that the question be determined accordingly.
(3) Article 9 shall apply with the addition of the following words—
“so, however, that the tenant’s failure to serve such a notice shall not affect his right to contest the question in proceedings before the Tribunal consequent upon the service of a counter-notice under section 26(1) of the 1986 Act or in any arbitration by which the Tribunal may require any such question to be determined”.
(4) Article 11 shall not apply, but where a tenant requires a question to be determined by arbitration in pursuance of article 9, the time within which a counter-notice under section 26(1) of the 1986 Act may be served by the tenant on the landlord under that subsection shall be one month from the termination of the arbitration.
18. The Agricultural Holdings (Arbitration on Notices) Order 1978(3) and the Agricultural Holdings (Arbitration on Notices) (Variation) Order 1984(4) are hereby revoked, but without prejudice to their application in relation to notices to do work and notices to quit which have been served before the commencement of this Order, and to any proceedings relating to or consequent upon any such notices.
Hailsham of St. Marylebone, C.
Dated 8th April 1987
(This note is not part of the Order)
This Order consolidates with an amendment the Agricultural Holdings (Arbitration on Notices) Order 1978, as varied (“the 1978 Order”). In particular, the Order brings up to date references in the 1978 Order to statutory provisions which have been consolidated by the Agricultural Holdings Act 1986 (“The 1986 Act”).
The Order makes detailed provision in relation to the reference to arbitration under the 1986 Act of questions arising under—
(a)a notice served on the tenant of an agricultural holding for the purposes of Case D in Part I of Schedule 3 to the 1986 Act requiring him to remedy a breach of a term or condition of his tenancy by doing any work of repair, maintenance or replacement (articles 3 to 8);
(b)a notice to quit given for one or more of the reasons specified in Case A, B, D or E in the said Part I (articles 9 to 17).
The Order contains an amendment in relation to the three months' time-limit after service of a notice requiring arbitration on a notice to quit within which an arbitrator must be appointed or application must be made under the 1986 Act for such an appointment if the notice requiring arbitration is not to cease to be effective. The Order now specifically provides that an application by either the landlord or the tenant within the three months' time-limit will preserve the effectiveness of such a notice (article 10).