Agricultural Landlord and Tenant Code of Practice for England launches

The Agricultural Landlord and Tenant Code of Practice for England was published today.  This is a product of the Farm Tenancy Forum,  a group convened by DEFRA to explore and provide feedback on issues relating to the tenanted farming sector in England, and comes endorsed by all of the leading representative associations in this sector.

You can find the Code here:   J53351_DEFRA_Code-of-Practice-Document_v7.pdf (ala.org.uk)

It has been a long time in consideration, and for some background see our thoughts about this from 31 May 2023:  Moving ahead with rural land, Kevin Kennedy (burges-salmon.com)

So is the Code a damp squib, a move to much greater regulation, or something else entirely?

The Code is built around the idea of three key principles: 

• clarity - as to what is agreed and expected of landlords and tenants  
• communication - appropriate and effective communications between landlords and tenants
• collaboration - encouraging a co-operative approach between landlord and tenants.

From reading the Code it seems helpful to have the following context in mind:  the majority of matters set out there depict a way of landlords and tenants dealing with each other that it would be hoped is the usual course at the moment. 

There are always those landlord and tenant situations where relationships have broken down, but set those to one side for the moment – it is hard to suggest that the majority of the Code is anything other than a recitation of good practice that it is expected would be in place anyway and in many respects (for example, the regular references to recording agreements in writing) help both landlords and tenants have clarity about the position.  Often it is a lack of clarity that can lead to issues between them, as the reality is that a lack of clarity may be disguising a fundamental difference in approach between landlord and tenant.

Each reader will find their own points that they consider relevant, but here are a few thoughts on particular points:

• The endorsement of Schedules of Condition – That is a helpful reinforcing point.  Schedules of Condition are a good starting point for new tenancies so that landlords and tenants know where they stand.
• The suggestion that landlord's consent for new [environmental, economic or other development] schemes should not be withheld unreasonably -  This makes sense in ordinary English BUT the legal spin on it is more complicated.  Whether consent is withheld unreasonably or not brings in a whole potential raft of legal issues that may not be anticipated by either landlord and tenant.  This suggestion looks likely to be a point of difference between tenants (likely to want this proviso) and landlords (likely not to).
• The reference to a timetable for vacating a farm at the end of a tenancy - This is sensible.  It is something that is often not dealt with with any level of clarity between landlord and tenant and a more open position between both parties would help both of them at a stage where there can plenty of issues that are often best dealt with practically. 
• The idea that "resolvers” [presumably arbitrators, experts or even judges] should have regard to compliance with the Code when dealing with the costs of a dispute - This could be an interesting area for argument, which in itself means that it should be treated with caution by both landlords and tenants.
• The idea that “professional advisors may also wish to consider the desirability or otherwise of accepting instructions from clients who unreasonably refuse to abide by this Code “ - This is an interesting point, and codifies what is no doubt often the minds of professionals faced with cantankerous clients who want to act unreasonably.  Most clients will have their sharp edges blunted if not entirely filed away by the professional advisors, and it seems that this provision may be intended as a tool in the advisors' box to encourage clients to abide by the spirit of the Code rather than (as it could be seen) something of a veiled threat to advisers.

Given the best practice that the Code in the main pushes, its deployment over the coming year should be a positive step.  

To answer the question above, it should not turn out to be a damp squib, it is hard to see it as a move to much greater regulation, and the Code feels as if it best regarded as a strong nudge towards best practice.

...the Code it feels as if it best regarded as a strong nudge towards best practice.