Hook v Hawkins  UKUT 147 (LC)
1st May 2020
The Upper Tribunal set aside a decision of the FTT that the Respondent occupied the property under a tenancy under the Rent (Agriculture) Act 1976 and thus did not have an Assured Tenancy for which the FTT had jurisdiction to determine a market rent. The Respondent had never been an agricultural worker in her own right, and the Upper Tribunal held that any protection that she formerly enjoyed under the 1976 Act due to her husband’s agricultural employment had ceased upon her husband leaving the property and the couple’s divorce.
The tenant was in possession of a farm cottage in Oxfordshire under a tenancy granted orally by the Appellant’s predecessors in title to the Respondent in 1995. The parties agreed that the tenancy would be an Assured Tenancy unless it was a relevant licence or tenancy for the purposes of the Rent (Agriculture) Act 1976. Because of the effect of section 34(4) of the 1988 Act, it would only be so if the tenant had, immediately before the tenancy was granted, been a protected occupier or a statutory tenant under the 1976 Act.
The facts as agreed before the FTT were as follows:
(a) On 12 April 1975 the respondent married her husband Trevor Hawkins (TH).
(b) At about the same time TH started full-time employment for the original landowners as a farm worker on the original landowners’ farm at Shifford, the work consisting of arable farming and care of livestock.
(c) A house was provided by the original landowners for TH and the respondent to live in namely 2 New Cottages, Old Shifford (the original property). TH and the respondent moved in and lived in the original property for many years during which time a daughter was born to them in 1975 and a son was born to them in 1984.
(d) No rent was paid by TH or the respondent to the original landowners for the occupation of the original property.
(e) In April 1990 TH and the respondent separated. TH left his employment and left the family home at the original property. The respondent remained living in the original property with their two children.
(f) Divorce proceedings between TH and the respondent were commenced. In June 1991 a decree absolute was pronounced and they ceased to be man and wife.
(g) Throughout these events the respondent remained in a good relationship with the original landowners. After the departure of TH the original landowners continued not her seek the payment of any rent while the respondent remained in the original property.
(h) In about 1992 or 1993 the original landowners informed the respondent that the original property was needed for another farm worker and that they would find somewhere for her to live. As a result the original landowners provided Carlan Cottage, Church View, Bampton, Oxfordshire for occupation by the respondent for which she paid £200 per month. Nothing was put in writing. The respondent and her children did not want to leave the original property but were reassured that as soon as a suitable property became available at Shifford they would be informed.
(i) In 1995 the present property became vacant and one of the original landowners allowed the respondent to move into the present property with her son and daughter at an agreed rent of £200 per month. At this time the respondent did some garden work at New Shifford Farm and helped in the house on a regular basis for one of the original landowners and his wife.
(j) In September 2015 the respondent was informed in writing by the original landowners’ solicitors that the present appellants were now her landlords.
The FTT decided that it did not have jurisdiction to hear an application to determine a market rent under the Housing Act 1988 because the tenant did not have an Assured Tenancy, rather a “protected tenancy.” The Tribunal found that in 1975 the Respondent and her husband were “protected tenants” and had the benefit of the security of tenure and rent control provisions under the Rent (Agriculture) Act 1976 and the Rent Act 1977. It held that, as a matter of law, that protection did not cease when the Respondent’s husband ceased to be an agricultural worker, and that the later divorce and the ex-husband moving out of the property did not affect the protected status of the Respondent, who remained in occupation as (according to the FTT) the sole tenant under a “protected tenancy.”
The main issue for the Upper Tribunal was whether the Respondent could be a ‘protected occupier’ under the 1976 Act in her own right, after her husband had ceased employment as a protected worker and a decree absolute was proclaimed.
Decision on Appeal
The Upper Tribunal allowed the landlord’s appeal.
The Upper Tribunal disagreed with the FTT’s analysis. Firstly, it accepted the Appellant’s contention that the original arrangement in 1975 had not been a tenancy but a licence, as its duration was not identifiable at the outset (there was no rent payable and it was linked to the husband’s employment). It also held that only the Respondent’s husband was a ‘protected occupier,’ and this only during the period of his employment in agriculture. The Respondent was never a protected occupier.
The Respondent occupied the property pursuant to a licence linked to his employment. When he left his employment, that licence came to an end, and he became a statutory tenant pursuant to section 4(1) of the 1976 Act. The Respondent’s occupation was then treated as the occupation of her husband (pursuant to section 1(6) of the Matrimonial Homes Act 1983) until the decree absolute was pronounced ending her marriage. After the decree absolute, the husband was no longer deemed to be in occupation through the Respondent so the statutory tenancy (under section 4(1) of the 1976 Act) terminated.
The Respondent could not enjoy any statutory tenancy in her own right because she had never been a qualifying worker. Any tenancy or licence that may have arisen after the divorce was therefore not under the 1976 Act. Thus, when the tenancy was granted to the Respondent in 1995, upon her move into Carlan Cottage, it was not caught by section 34(4) and was thus a periodic Assured Tenancy under the Housing Act 1988 and amenable to an application to determine the market rent payable.
The matter was remitted to the FTT to determine the market rent payable.
This would appear to be a case that turned much upon its own facts, but the Upper Tribunal gave some clarity on whether an ex-spouse would benefit from the protected status of her former husband under the 1976 Act, after the conclusion of matrimonial proceedings.
Expertise: Landlord & Tenant
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