News
29th Dec

2020

TFA Blog #26 – The Process of Arbitration: A Tenant’s Experience

This blog is the full (unedited) article, written by a TFA Member, for the January/February 2021 TFA News, published on 24 December 2020.

This is a brief account of my experience, as an agricultural tenant, of agricultural arbitration and tribunals.  It is also an account of trying to run a farm business but being at odds with a landlord who is not interested in owning a farm for it to be farmed.

I have spent the last 9 years being involved in court cases and tribunals with my current landlord who has owned the estate, of which my farm makes up most of the acreage, since 2006.  My family have been farming here for over 52 years and did not encounter any issues with previous landlords.

When our present landlord bought the estate, we wrote to engage on numerous occasions.  We also had to have our family solicitor contact the landlord as our rent cheques were not being cashed.  Fortunately, I had always photocopied our letters with the cheques and pinned the recorded delivery ticket to them.  In the disputes which followed, this turned out to be important as one of the arguments made by my landlord was that that I hadn’t paid rent for a number of years when in fact they hadn’t cashed the rent cheques, nor had they given me their bank details, which I had asked for, so I could pay directly into the landlords account.  We had no response for three years when, out of the blue, the landlord just turned up and proceeded, very politely, to threaten me whilst his “colleague” invaded my personal space.  I was told, “his was a very rich company and it would cost me a lot of money to go to court”.   This seemed a very odd thing to say but he left and we heard nothing more for quite some time.

He then phoned at 5.15pm on the 23rd December to say he was removing a 30-acre field from our tenancy.  I told him he could not just do that and put it in the hands of our solicitor.  This coloured our Christmas that year.  Nothing more was heard until 2011, when the landlord phoned to say that he would be coming down to discuss the farm and the fact that we may want to take on more land.  I knew this was going to be a piece of land, very overgrown, no topsoil, no fencing or facilities. Fortunately for me, I had a friend who said I may need an agent and put me in touch with a very knowledgeable agent, who also told me about the Tenant Farmers Association (TFA).  I was already a member of the NFU but thank goodness I joined the TFA as they were so knowledgeable, supportive and helpful.

The landlord turned up with a land agent in tow, which I was not expecting.  The agent told me they were doing an inspection of the property that day.  I was taken aback as I am meant to have notice of any inspections and said so.  The agent’s reply was if I didn’t let them do it then, he would assume I had something to hide.  Also, if I allowed the inspection to happen, he would not need to come back another day, so I allowed it.  After they had looked round the farm, he then said they wanted to inspect inside the house.  When I asked why, I was told that they wanted to make sure I wasn’t housing 50 Kosovars!  They told me that they would be putting the rent up to which I replied I had no problem so long as the landlord took on board his legal responsibilities under the tenancy.  The agent told me that he had informed his client of his responsibilities.

They left and shortly afterwards I got an e-mail saying they would be doing a full inventory of the property the following week.  It was done in such an invasive, hostile and intimidating manner that after they had left my daughter said to me “mum that was awful, it felt like being raped”  We had never had an inspection like that before. It was shortly after that we realised we were being watched.  I contacted the police who said there was nothing they could do unless I managed to get clear photos or registration numbers.  At the next inspection, approximately 2 months later, (3 inspections in 3 months) I brought this up with the agent who assured me it was not their client.  This inspection was because the agent wanted to count every animal on the place.  Despite looking at over 150 sheep a few cattle and chickens he only managed to see a couple of sheep.  On the morning of the 1st of January, I managed to get a number plate of a vehicle that was clearly watching us.  I contacted the agent before I was going to contact the police and was told on this occasion it was the landlords employee doing a security check.

I write about this early contact as I believe it shows that there was already a hostile tactic employed from the get-go.  This was in fact, borne out by documentation that I finally managed to see at the arbitration hearing from a meeting that had been documented three months before they had turned up at the farm saying some of what they intended to do – that is to turn up at the farm and do an inspection to look for evidence that I wasn’t farming.

Despite several contacts from my agent and good advice from him to them, for example to do a rent review without prejudice, they refused to engage in any sensible negotiations.  They then sent me a rent demand for a ludicrous amount, whilst also asking for evidence that we were agricultural tenants (despite their agent having done some work for us previously involving a deed that acknowledged we were agricultural tenants).   I provided evidence although it was not straightforward as the original tenancy had been varied by oral agreement which had been documented but not spelt out how it had been varied.  Some of the evidence I gave them were of letters from previous landlords that made it clear we were farming and that there were no issues with this.  The present landlord’s response was to give me a notice to quit.

I had been advised to seek arbitration and opted for this because I believed it would be a simpler, fairer, less ‘legal’ and less expensive process.  This really did not turn out to be the case.

I had no choice but to ask for arbitration as they had started a legal process.   If I had ignored the notice to quit it would have stood, even though it was under the wrong legislation.  They then proceeded to give me a notice to quit once a month for three months.  An arbitrator was appointed and the landlord via his solicitors categorically stated they did not recognise the arbitrator’s authority and continued to take me to court on the notice to quit and was also asking the judge to make an order of an interim rent of £30,000.  An amount that was completely unrealistic both for me and the farm.  Fortunately, the judge ordered them to take part in arbitration.  However, they refused to provide any evidence including any pre-contractual information they had received when buying the estate.  They did insist that I provide copious evidence, some of which I had already given them and the last 6 years of my tax returns.

This was an extremely stressful time and there were times when I would phone my agent and a couple of times the TFA in floods of tears as I did not know which way to turn.  At that point, I didn’t know if the evidence I had provided would hold up in arbitration. I was becoming aware of how important a single word or phrase could be.  Evidence and correct legal language are not things you think about having to have when you have farmed a place for well over 40 years with several landlords in that time.  An arbitration date was set, and the landlords kept changing the dates for different reasons – for example they were out of the country or it wasn’t convenient.  They had still not provided any documentation themselves that both the arbitrator and my solicitors had been seeking for months.  Finally, the arbitrator put his foot down and said the arbitration would be going ahead.  The night before the hearing we got the landlord’s agent’s report – the landlord’s representative had my agents report for weeks.  It had taken nearly two years from the arbitrator being appointed to the actual hearing as we had to wait a year before the court hearing in relation to the notice to quit.  There was a mountain of legal advice for the arbitrator that my solicitors had to respond to, and I had to pay for, along with my own legal advice.

The first day of the actual arbitration started with a farm walk.  I was incredibly nervous and hadn’t slept the night before.  By 9:00 a.m. there were ten people on the farm, my barrister and land agent, the arbitrator and his legal advisor, two of the landlord’s solicitors, their barrister, a representative from the landlord’s company, land agent and his personal assistant.  I didn’t know if this was going to be an experience like the previous landlord inspection.  However, despite their agent’s best efforts to point out everything that he thought may paint me in a bad light, the arbitrator was measured and I believe sensitive to the situation – he recognised it was our home.

After the farm walk, we then all convened at the place where the arbitration was to take place.  I can’t really remember the beginning of it though I think both sides were laying out their case but I felt nauseas knowing I was going to be on the witness stand to be cross examined by the landlord’s barrister.  I was cross examined for over 2 hours and it was a very hostile experience where I was frequently told I was liar and incompetent.  My barrister and solicitor said they didn’t often come across such hostile cross examination in those settings.  The landlord’s agent was then cross examined on his report (which included a spurious ten page report on my daughter, why I do not know as she is not the tenant) by my barrister and then my agent was cross examined by their barrister.  My witness was also cross examined, this was someone who had worked for my father as a farm hand over 30 years ago.  I was extremely proud of my team, solicitor, barrister and agent as they conducted themselves with utmost professionalism and thoroughness and I felt I was in very good hands.  At the end of the first day, I was exhausted.

Day two was about the barristers arguing over legal definitions and looking at the evidence.  The landlord’s barrister was trying to say I was not an agricultural tenant, and then trying to say I was an incompetent farmer and then said that the farm had fallen out of agricultural occupancy as there was a period of five years, 18 years ago where I had not proven through a paper trail that the farm was indeed being farmed (if they had asked for that before the hearing I would have provided it).  It was obvious that the landlord’s team were trying to find any means possible for my tenancy to be invalid and were not interested in any evidence to the contrary.  At this point the landlord had still not produced any documentation other than the report from their land agent the night before the hearing started.  This was despite many months of being asked for it, both by the arbitrator and my solicitor.  Finally, around lunchtime on the second day, the landlord produced his pre contractual file.  In it was proof that I had been farming in those five years that had come into question and that there was indeed an oral variation in the tenancy that allowed an agricultural tenancy under the 1986 Agricultural Holdings Act (AHA).  I cannot tell you the relief and exhilaration I felt, though I did not know if it would hold up as there was no actual agricultural tenancy agreement.  I would say to any tenant farmer to keep all correspondence, deeds and paper trails with landlords however innocuous they may be. For instance, one of the many pieces of evidence I had was a letter from a previous landlord, approximately 39 years earlier, giving my father a stern telling off for his cows breaking a fence and straying onto a neighbour’s land.  As it turned out this was proof that we had been farming and the landlord was aware of it.  I had no idea of the legal significance of this letter until this process.  My father was a paper hoarder which used to drive me up the wall but during and since this experience I have been grateful for this fact as without it I would have had an even bigger fight on my hands and am now a hoarder myself in all matters relating to the landlord and our farming.  I personally believe that both the landlord and his agent knew I had at the very least a good possibility of being determined as a tenant farmer under the AHA but decided they would have a go at getting me out and hoping I either would not fight or could not prove my claim.  In fact, the landlord’s agent had said several what I consider outrageous and unprofessional comments to me when doing his inspections.   This included – if I insisted on holding my position of an AHA, my costs would be run up as much as possible; my life would be made very difficult- something the landlord had already told me; that I had been given incorrect information from my then agent; did I not know that my solicitors could get it wrong and if we went to court who did I think the judge would believe – him with his experience of 25 years’ experience or me.

I felt these inspections were less about trying to establish facts but was an opportunity to undermine me.  The arbitration went onto a third day with both parties summing up their arguments. However, despite this I did not know what conclusions the arbitrator would make and it seemed as if his legal advisor questioned everything to the nth degree, as had happened prior to the hearing as well, which may have been a good thing in relation to ensuring the legal position but did nothing to keep costs within a reasonable framework and timeframe.  As a lay person, it appeared as though very little common sense was applied.  This really did exacerbate my levels of stress.  I think most farmers employ some common sense and are usually very practical.  It did not feel a very common – sense process and I was frequently bewildered.  During all this time I found it hard to invest in the farm, both financially but more importantly psychologically and emotionally.

After the hearing I had to wait for the arbitrator’s award which was an anxious time in itself and it felt like forever.  Before the award could be released, the arbitrator’s costs had to be paid.  At that point it should be split 50/50 and then afterwards a cost award is made.  The cost of the arbitration alone was £64,000. I was gobsmacked.  Fortunately for me, I had insurance through the TFA who with the help of my agent and the TFA arranged for payment of half of those fees.  My landlord did not pay despite assurances that he would and it got to a point where the arbitrator was going to sue for the outstanding monies.   To my horror, despite having paid my half, I would be sued too as we were jointly liable and as my landlord was clearly not going to pay meant that if I didn’t pay the landlord’s half, I would end up with a CCJ against me. So, I paid.  I really feel this is an extremely unfair part of arbitration as it relies on both parties being adult and moral.  I feel strongly that the only persons who should be sued if the bill is not fully paid is the party that has not paid their allotted amount as prescribed by the arbitrator.  I was an individual up against a company.  I was at my wits end.  At this point I had run out of money to pay my solicitor’s bills and was paying a monthly amount to them until such times as costs were recovered from the landlord.  My agent was amazing and didn’t proffer his bill until I had received money back from the landlords which he didn’t have to do.  I was desperate.  I am thankful that I have several friends who were supportive of my plight and helped me out and I borrowed what I could in order to pay the landlord’s half of the costs.  All of this had to be paid back at some point on top of paying solicitors, agents and farm bills, let alone just trying to live.  I am not someone who has had a lot of debt in my life and been measured about any spending.  Suddenly, I was in massive debt, not sure if I and my family had a home, a business and a way of life and that we could lose our present and future. At times the thought of losing everything and becoming bankrupt if I lost the arbitration felt too much to bear.  I often didn’t sleep, developed Type 2 diabetes (I’m 5’7, size 12, active and eat more than my 5 a day).  At times I struggled with a positive mental attitude and I honestly do not know what I would have done had I not had the support from my family, friends, agent and the TFA.  The struggle was relentless. I kept looking at my animals, particularly my dogs and thinking ‘what am I going to do with them if we lose’. The sheep and cattle I knew I could sell but what farmer wants to be forced into selling all of their livelihood and like most farmers there are always a handful of favourites that despite economic sense you keep past their useful economic life.

The award was released and I found out I had won the first arbitration.  I cried.  There was then a costs award, which again, I had to pay for as the landlord refused to engage.  When the costs were awarded in my favour, the landlord would not pay me and I had to go to court several times, which I had to pay for, to get a charging order and then back to court to get an order for sale.  In one of the county court hearings (I had several county court and high court hearings) the landlord complained that his costs were very little and mine were huge.  Given that he had not had to prove anything and I had to prove everything on his insistence, plus the cost of his tactics, messing about, call it what you will, it did not occur to him that of course my costs would be so much higher primarily because of the way they conducted themselves.  My legal papers and evidence filled a suitcase. He finally paid when he realised I was serious about putting the estate up for sale.  If I had not been sitting on his asset’s he would not have paid me. The landlord has several businesses in this country as well as abroad, many of which have charging orders against them.  How can that be right? I could not believe I was then in another arbitration on the terms of the tenancy and had to have another hearing, as the landlord refused to negotiate and grant me a written tenancy agreement and also would not do it on written representation, therefore putting costs up again. So, more solicitor, barrister and agent costs again.  As had happened with the first arbitration, the landlord kept messing about with dates, not engaging with the process until the arbitrator finally put his foot down again. I was frustrated by this process as it felt that the landlord was given more allowances to mess about and therefore drag out the process, costs and stress. Then after the arbitration, the arbitrator’s costs had to be paid before the judgement was released. Needless To say, I ended up paying all the costs, then going for a cost award and then back to court to get another charging order. The only comfort in this was at least this time I was not surprised and resigned to the process.

During the final stages of the ‘terms of the tenancy’ arbitration, the landlord gave me a trigger notice for a rent review.  Needless to say, they then would not engage in negotiations. Sometime after the terms were awarded and cost award issued, they then gave me another trigger notice for a rent review.  The next thing I knew they had appointed an arbitrator with no negotiation about what the rent should be.  The landlord was not interested in any of his responsibilities towards me as a tenant e.g. repairs, maintenance, statutory compliance.  The arbitrator quite rightly said we needed to try and negotiate some settlement and needless to say the landlord would not comply.  Despite further letters from the arbitrator, and therefore increasing costs, the landlord refused to engage in any meaningful way.  The only comfort there was in this is that he would not give his agent or solicitors any instructions either to the point where his agent (a different firm to the original arbitration) assumed they had been de-instructed as he could not get any instructions!  After sixteen months, I asked the arbitrator, through my agent, if the arbitration could be dropped as it was clear that the landlord had no interest in any real negotiation.  Both parties received a letter informing us that he could not legally do this unless both parties agreed.  The landlord did not reply to any of his correspondence or give instructions of what they wanted to do.  Yet again I was frustrated that arbitration law could allow a wealthy and unscrupulous landlord to keep something hanging over a tenant’s head and could quite simply mess about.  I understood that the rent review would stay open indefinitely until an agreement was made.  This meant to me that the landlord could leave it for as many years as he wanted and then once he decided to engage and a rent was agreed this would be backdated to the trigger notice.  I would then have to produce several years of increased rent at once.  I believe it was a legal harassment technique which I felt was very unfair.  It was only when George Dunn of the TFA asked why an ‘unless order’ was not being applied did I realise that the arbitrator did in fact have the power to stop a ridiculous situation.  It was then applied and the arbitration brought to a close.  I really feel this should have been applied a lot earlier as it would have saved me having this feeling of something always hanging over me. I just wanted to get on with my life. In fact, I believe it is a way that landlords can try to bully/harass tenants in the hope that they will walk away from their tenancy.  As land can promote exorbitant prices for any kind of development other than farming, there may be more landlords and their agents who have no interest in being ethical with tenant farmers.  I sincerely hope I have just been very unlucky to have the landlord that I have, and that my case is a one off.  If not, tenant farmers are going to need a huge amount of support, robust arbitrators and fair arbitration law that does not punish the poorer party.  This whole process from when the landlord turned up with his land agent to the end of the third arbitration took 9 years and cost over £315,000.  How can that be right? At the beginning of this process I thought that arbitration would be shorter term and a less expensive process than going to court.  It also had the advantage of going before someone who understood agricultural issues and that too would expediate the process.  I’m not sure now.  If arbitration is going to have a place where legal issues are involved, I believe the arbitrator needs to be given the power to be able to use their expert knowledge in their ability to consider legal points.  I am not saying that an arbitrator should never seek legal advice on particular points of law but they should not have to seek legal advice for a significant amount of the case because they are not entitled to use their expert knowledge.  It puts the costs up far too much and delays the process.  If I had not won my case, I would have stayed in massive debt probably for the rest of my life and lost everything.

At the end of the day the landlord walked into my life, I did not walk into his and yet he had the power to make my life extremely difficult.  I do not feel or think that at any point the landlord, his original land agent or his solicitors treated me ethically, fairly or with any respect. I was just someone they tried to get to rollover.  Again, how can this be right? I sincerely hope I’ve just been unlucky and this is not a trend.

Everything that has happened has been within the current law and yet has felt wrong and unfair, I hope agricultural landlord and tenant law can become clearer and fairer in the future otherwise as well as farming itself sometimes being difficult and unpredictable, these procedures could also see  more farmers giving up and our beautiful countryside and our ability to produce food being lost over time.

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