Option: Encouraging agreements for use as of land as temporary community food-growing spaces
This page gives information on legal issues that arise in encouraging agreements for use of land as temporary food-growing space.
Private and public landholders can be encouraged to provide land for community groups to cultivate while the land is awaiting development. However, landholders rights to resume possession must be ensured to encourage their participation.
“Initial research found that often the supply of land is less of a problem than negotiating its use on a temporary or long term basis. Landowners are often cautious about letting community groups use their land, while community groups often lack technical skills and expertise to negotiate with landowners (e.g. around leases and other legal issues, including planning).”
Federation of City Farms & Community Gardens website
It is land that is used by a community group to cultivate in an interim period before the land is further developed. This land may be set up as mini- plots cultivated by individuals or as a communal garden, cultivated by a number of people. The planting would be either exclusively edible plants or a mix of edible and non-edible plants. See Capital Growth and allotment protection case study.
What legal issues arise in encouraging temporary food-growing spaces?
Some landowners have been concerned that they will not be able to re-claim possession of their land quickly (within a few months) because the agreement with the growers will be protected as a tenancy of an ‘allotment garden’ under the Allotment Act 1922. The parameters of this protection and potential ways to avoid it are covered below:
- Planning permission is not required for community growing because agriculture- that includes horticulture, fruit and vegetable growing and keeping of livestock amongst other forms of cultivation- does not count as development.
- This means a landlord can offer land for community growing without threat to the existence of planning permission to develop it further in the future. However, planning consent might be necessary if development is planned as part of community use- for example the construction of buildings or sheds.
- The agreement between landowner and the community group should set out how the land is to be used and the rights and responsibilities of both the landowner and growers. This means that the terms of the agreement will vary depending on the proposed use of the land, although the period of agreement and the process for ending it should be set out clearly.
Different legal rights apply depending on whether the agreement grants a lease over the land or just a licence to use the land. A lease grants a legal interest in the land whereas a licence only makes legal what would otherwise be an unlawful use of land.
The difference between a lease and a licence is in the nature of the specific relationship with the landowner- what matters is the substance of the agreement not labels or terminology used (i.e. calling it a ‘licence agreement’ is not definitive). There are three factors that can help determine whether an agreement is in fact a lease or a licence [Street v Mountford, HL];
- Is there a grant of ‘exclusive possession’? This means that the tenant (who may be a group of people) is able to exclude strangers and even the landlord from the property unless the landlord is exercising limited rights to enter (for example to carry out repairs) contained in the agreement. If, however, the landlord shares the right to enter and use the land at any time it is unlikely that a tenancy has been granted.
Separate agreements with a number of people can give rise to a joint right to exclusive possession and a joint tenancy.
- Is there a fixed term or periodic term? (i.e. for one year or from ‘year to year’ or ‘month to month’)
- Is there a stated rent? (this can be a nominal amount- i.e. a peppercorn)
Only If the answer to all three questions is yes, will there be a tenancy; then the agreement has granted a legal estate in the land.
In many cases a licence would be a more flexible and useful arrangement for both the landowner and growers. This is how land-share agreements operate where both the landlord and grower share access and use of the land so the tenant cannot be said to have ‘exclusive possession’.
However, if the reality is actually one where the growers exercise exclusive possession, they will be tenants and subject to a higher degree of legal protection.
Tenancy of an ‘allotment garden’; There is statutory protection for certain types of tenancy including for the tenancy of an ‘allotment garden’ where the law aims to protect the tenant from eviction without an extensive notice period. This applies to individual and group tenants.
The Allotment Act 1922, Section 1 (1) (a) sets out that;
“where land is let on tenancy for use by the tenant as an allotment garden the tenancy... shall not be terminable by the landlord on notice to quit or re-entry...except by... (a) a [twelve months’] or longer notice to quit expiring on or before the sixth day of April or on or after the twenty ninth day of September...”.
This means that a 12 month notice is required to terminate the tenancy of an allotment garden, and this notice can only be given between 29th September and 6th April the previous year (to avoid termination in the most productive part of the year).
Although a good form of protection for the tenant, the knowledge that they may not be able to re-gain possession of the land for at least a year is problematic for landlords and has prevented some from offering land for an interim period before development [See Capital Growth Case Study].
So when is a tenancy of land protected as a tenancy of an ‘allotment garden’?
An ‘allotment garden’ is defined by Section 22(1) of the Allotment Act 1922. Land may be an allotment garden when;
· around ¼ acre or less;
· mainly used to grow fruit and vegetables (not flowers etc), and;
· these fruit and vegetables are grown for consumption not for sale.
[An ‘allotment garden’ is defined by Allotment Act 1922, Section 22 (1): “For the purposes of this Act, where the context permits—The expression “allotment garden” means an allotment not exceeding forty poles (this is about a quarter of an acre) in extent which is wholly or mainly cultivated by the occupier for the production of vegetable or fruit crops for consumption by himself or his family;”]
When is land ‘let on tenancy for use’ as an allotment garden?
So how can a landlord avoid the twelve month notice period required for an allotment garden?
A) Either; A genuine agreement to share use and possession of the land between the landlord and occupier will only give rise to a licence for the growers to use the land, not a tenancy over the land. This would mean there is no protection because there is no tenancy of an allotment garden. However, as noted above, this needs to be more than a label or the terminology of licence over lease.
B) Or; By agreeing in advance that the landlord can terminate the tenancy if the land is required for development, with only three months notice to quit instead of twelve months notice, and this notice can be delivered at any point in the year.
How? The Allotment Act 1922 S.1 (1) (b) allows the termination of a tenancy of an allotment garden under a power of re-entry ‘contained in or affecting the contract of tenancy’;
o any other industrial purpose,
o Or for roads or sewers necessary in connection with any of those purposes (S.1 (1) (b)).
This is an important power that the landlord should include in the agreement if they are offering community growing space while awaiting development (see ‘Meanwhile Growing Lease’ from Meanwhile Project for a template agreement incorporating this power). The terms ‘building’, ‘any other industrial purpose’ and the connected ‘roads or sewers’ are probably broad enough to cover most forms of normal development. There is also a similar power for re-entry by owners of a railway, canal, dock, water or other public undertaking in Section 1 (1)(c).
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