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Kirby v Preston

First-Tier Tribunal, Property Chamber (Agricultural Land and Drainage Division)

No need for succession application under AHA 1986

Joe Ollech, instructed by Fred Harrison-James of Loxley Solicitors Limited, appeared for the successful tenant in this case, in which it was determined that the applicant was already the tenant under a 1986 Act protected tenancy and did not need to proceed with an application for succession.

The applicant tenant had received a Case G notice to quit following the death of his parents.  He made an application to succeed under s.39 of the 1986 Act, but subject to a prior argument that he was in fact the last surviving tenant because of variation to his parents’ joint tenancy in 1981 by which he was added as a party to the lease. If this were indeed the case then he was the last of the original joint tenants by survivorship.

The Tribunal ordered the determination of this question by way of preliminary issue.

The compass of facts was narrow, the tenant farmer giving evidence as to his recollection of a conversation in 1981 where his mother had asked that that he be added to the tenancy the correspondence and conduct of the parties thereafter.  The history of the matter raised questions concerning variation or surrender and re-grant, estoppel by convention and proprietary estoppel.

The Tribunal considered and applied the principle established in Trustees of Saunders v Ralph 66 P&CR 335 that a tenancy can be varied by the addition of another tenant without the need for a notional surrender and re-grant.  Had it been necessary to do so it would have found for the applicant on the basis of the estoppel arguments as well. 

It is not uncommon in the agricultural sector to find that parties to leases have conducted themselves in such a manner as to affect substantive property rights.  Variations to a lease do not require any particular form of formalities and since – on the right facts - the addition of a party to a lease can be a variation it is possible that even matters as significant as who the tenant is can change.  On the facts of this case Mr Kirby is the tenant under a lease which began in 1964, and still carries with it two rights of succession, even though he was less than two years old when it was granted.


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