A tenancy may not just be an AST!

Farmers as employers must be aware that they do not inadvertently create a secure tenancy for an agricultural worker mistakenly believing that they are entering into a simple Assured Shorthold Tenancy Agreement (AST).

Under Schedule 3 of the Housing Act 1988, agricultural workers can gain security of tenure in a property provided to them by an employer simply because of their occupation as an agricultural worker.

The agricultural worker condition is fulfilled where a dwelling house is owned by the employer and the occupier, or where there are joint occupiers at least one of them, is a qualifying worker. They are a qualifying worker if at some time during the subsistence of the tenancy either have worked the whole time in agriculture or have worked in agriculture as a permit worker for not less than 91 out of the last 104 weeks. This time also runs where the worker is injured but would otherwise be working these hours. It also applies to a surviving partner if the worker qualified under these conditions and then dies.

If the agricultural worker gave up another qualifying tenancy and satisfies the above conditions to take up a new job with a qualifying tenancy, this accrued time continues to run.

To avoid security of tenure for an agricultural employee, landlords must serve a Form 9 on the agricultural worker who is likely to meet the qualification of an Assured Agricultural Occupant before they move into the property and sign the AST. It is vital that it is done before they take possession of the property.

Form 9 puts the worker on notice that although they may meet the conditions of an assured agricultural worker, they are being offered the accommodation under an AST without the security of tenure.

If a Landlord allows the agricultural worker to move into the property without giving the appropriate notice in advance, they could be setting themselves up for a tenancy that has security which will make it extremely difficult to evict them even when their employment comes to an end. Farmers have had to re-house former qualifying occupants in order to house a new agricultural worker in the property.

The moral of the story is to not allow an agricultural worker into possession of a property until you have sought legal advice. It is crucial that the appropriate form is served and then an AST entered into with other necessary tenancy documentation provided to the Tenant.

Jacqui Swann is a specialist in residential tenancies and can be contacted on 01935 846254 or email jacqui.swann@battens.co.uk.