Topic: Allotment start-ups. Documentation collaboration

[Big Gee]

 

Having touched on the subject in a previous thread, and following a quick discussion on there with 'Unwashed', as promised, I'm posting a link to a full set of documentation for allotment group start-ups.

They include the following specimens:

1. A draft constitution document
2. A draft tenancy agreement document
3. A hand-book example

To access the page I've compiled with links to the documents above please go to:

http://aeronvale-allotments.org.uk/StartUpDocs/sharedrafting

You're welcome to download the documents and offer any critique, suggested amendments or any other commentary on the content of the documents. The idea is to collect pooled knowledge and to revise any mistakes/ legal technicalities - to make the documents more adaptable and useful to other allotment groups who may find them helpful when authoring their own documentation.

As these documents are not freely available to the public you will need an username & password to access the directory on my server. These are:

Username: contributor
Password:  A4Ainput

Perhaps you can use this thread to post your comments and suggested inclusions/ omissions.

I would appreciate that you do not circulate these documents outside this forum.

Many thanks,

G.

[elvis2003]

Just tried and the user name or password is incorrect?

[Big Gee]

Just tried and the user name or password is incorrect?

I've just tried it myself & it seems to be working fine. Make sure you input the information EXACTLY as I've shown it - both the username & password are case sensitive. Also check that your keyboard 'caps lock' is not on.

[Unwashed]

I've had a go up to the end of 16.x

My critique.  Please note that I have absolutely no legal training or qualifications whatsoever and I offer this critique in the hope that it might challenge the reader to research the subject for herself.

A note on the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR).  It's a piece of legislation that protects consumers from standard terms in contracts which take advantage of the supplier's strong bargaining position and are unfair on the consumer.  The unfairness test is a technical one and you need to understand the Regulations in detail to say whether any particular terms is unfair, but basically the Regulations say that a term is unfair if it gives the supplier more than is reasonable or doesn't take into consideration the legitimate needs of the consumer.  The Regulations also say that the terms of a contract have to be in plain and intelligable language.  The Regulations say that if there's some ambiguity in the language of the term then the consumer gets the most beneficial interpretation.  The Regulations also say that unfair terms are unenforceable.  This latter point is important, because terms that are drafted more widely than is absolutly necessary can end up leaving the landlord with nothing.

"WHEREAS The LANDLORD agrees to let, and The TENANT agrees to take on an yearly tenancy from the <date>"

Plots let on an annual periodic tenancy such as this have an anniversary date.  A periodic tenancy is a single contiguous contract no matter how many years long it runs, but it's a legal nicety that an annual periodic tenancy is technically a succession of years, albeit glued seamlessly together with legal glue.  The tenancy can be ended by a notice to quit, but it's helpful to understand exactly how that works:  A notice to quit doesn't terminate a periodic tenancy, what it does is prevent the tenancy automatically getting another year stuck seamlessly on the end - the notice breaks the legal magic, the tenancy actually ends by effluxion of time.  It's vitally important that landlords understand this because a notice to quit must end the tenancy on either the first or last day of the tenancy year, and if some other date is given the notice is ineffective.  So for example, if the plot is let from 1 December, then a notice to quit must terminate the tenancy on either the 30 November or 1 December.

This all matters because Section 1 of the Allotments Act 1922 specifies that a notice to quit an allotment garden must expire "on or before the sixth day of April or on or after the twenty-ninth day of September in any year" and the implication of this the date that the tenancy is let from must be within this range, and if a landlord were to let an allotment from some date outside that range (like 1 June say) then there could potentially be an unpleasant legal wrangle over whether Section 1. prevented the landlord serving a notice to quit at all.  Note that although Section 1. appears to allow the landlord to serve a notice to quit within a range of dates irrespecive of the anniversary date of the tenancy I don't think that is the right construction, and rather than risk an expensive argument it's very much safer to let plots with an anniversary date in the given range and only ever serve a notice to quit terminating on that anniversary date.

This applies to council and non-council landlords, but it only applies to allotment gardens.  If the tenancy agreement doesn't contain the stipulation that "the allotment shall be used mainly for the cultivation of fruit and veg ..." as per the Allotments Act 1922 definition of an allotment garden then my guess is that the tenancy is not for an allotment garden and Section 1. wouldn't apply.

"Wherever possible unless it directly contradicts or opposes the terms of the (insert) from the LANDLORD PARAMOUNT this Agreement is subject to the Allotments Acts 1908 -1950; to any Regulations indorsed to or on this Agreement; guidelines recommended by the National Society of Allotment and Leisure Gardeners Limited; and to the following"

It's not clear to me whether making the agreement subject to the allotments acts will have any effect.  In point of fact all allotments are subject to the allotments acts whether or not the tenancy agreement acknowledges it, it's just that the allotments acts don't say very much about allotments that aren't let by a local authority.  A non-council allotment isn't subject to the bits of the act that explicitly address council lettings, and if the intention of the above was to bind a non-council landlord to the council-specific bits (and I don't understand why a non-council landlord would want to be so bound) then it would need some clearer language to do it.  Conversely a non-council landlord is bound to the general bits of the act whether it acknowledges it or not, even when the tenancy agreement tries to contract out of the acts.

UTCCR says that it's not fair to expect a consumer to know what any bit of statute law says just by referring to it, so while the consumer is entitled to rely on a term that incorporates legislation by reference, the landlord won't be able to rely on it.

Likewise, UTCCR says it's not fair to bind a consumer to conditions that she can't reasonably have understood when she signed the contract, so terms that incorporate other terms by reference are unfair, such as by binding the consumer to the terms of some other agreement without actually providing that other agreement.

1. The rent shall be paid by the 1st of May in any year.

Council landlords are bound by Section 10(2) of the Allotments Act 1950 which says "Not more than a quarter’s rent ... shall be required to be paid in advance:" and the term as it stands is unenforceable because it demands the whole of the rent be paid more than a quarter's in advance.  I'm pretty sure the landlord could still rely on the common-law right to be paid rent, but at common-law rent is payable in arrears, and again this isn't so very much of an inconvenience except that rent is an enitre obligation and the tenant owes nothing until the very last day of the tenancy year, so a tenant quitting before the very last day, even if it's on the day before, will avoid paying any rent.  Section 10(2) is generally understood to mean that councils need to allow their tenants to pay quarterly, but I think this is a misunderstanding.  Again, rent is an entire obligation so either the whole of the rent is due or none is, and just because the council will allow the tenant to pay the rent in four installments doesn't change the fact that the whole of the rent is due in advance - if a tenant was to quit the tenancy after just a couple of weeks having just paid one quarter's rent the other three quarters are still owed as a debt unless there is an apportionment clause.

The safest term is to make the whole of the rent payable nine months into the tenancy (start the tenancy 1st October and you can still demand the whole of the rent on 1 July without any serious exposure to tenants quitting after their harvest but before the rent-due date), though I admit this would be unusual, but a council setting the rent day more than a quarter's in advance risks a challenge from a tenant being evicted for arrears claiming that the rent-due date is unlawful and that the rent only falls due at the end of the year.  Always safest to avoid legal arguments like that.


2. The LANDLORD shall cause the land to be used for Allotment Gardens only (that is to say wholly or mainly for the production of vegetable or fruit crops and flowers for consumption and display by The TENANT and his /her family) and for no other purpose.

There is no good reason to prohibit "no other purpose" as this prevents many typical allotment activities such as sheds, patios, compost bins, ponds, lawns, and paths.

Terms 1. to 15. aren't actually addressed to the tenant, they are the terms of the agreement between the landlord and landlord paramount, if there is one.  Terms 1. to 15. need to be deleted.  If the landlord want to bind the tenant to some stipulation that the landlord paramounts says it should, then it needs to do it in a term addressed to the tenant.

[Unwashed]

16.1 Agrees to conform to the following rules as part of his/ her agreement with The LANDLORD. Persistent and willful disregard or the flaunting of any of the following rules will, if proven, result in immediate termination of the Tenancy by The LANDLORD whose decision shall be final.

You can't terminate a tenancy with immediate affect.  Forfeiture is subject to Section 146 Law of Property 1925 and the landlord can't contract out of that obligation.  In short the landlord needs to give the tenant reasonable time to put right a breach of the rules, or allow the tenant to compensate the landlord for her loss, but only her actual losses, the landlord can't impose a fine.

16.2 Must pay the annual rent and any membership fees due in full and by the deadline. The rent is paid in advance and without deduction, unless otherwise agreed with THE LANDLORD

See notes above about rent in advance.  Councils are obliged to give their tenants 40 days from the rent-due date in which to pay the rent (Section 30(2) of the Small Holdings and Allotments Act 1908). 

It's not entirely clear to me that council allotments can come with an obligation to join an allotment society.  I don't believe the council has such a power to require this and it appears to be a breach of Article 11 of the Human Rights Act.  If the tenant chooses to join the allotment society then not paying the society fees or otherwise being kicked out of the society can't affect the tenancy.

16.3 Agrees to abide by the terms of XYZ Allotment Society’s Constitution and its Rules and any other associated Rules and Regulations.

See note about this term for council allotments.  UTCCR requires that the society's constitution and rules are annexed to the tenancy agreement because the tenant can't be bound to terms that she hasn't seen prior to signing the tenancy agreement.

The society constitution and rules would also be subject to UTCCR.

16.4 Agrees to abide by the terms of any lease agreed between The LANDLORD and the LANDLORD PARAMOUNT.

It's not clear to me that the tenant can be obliged to abide by the terms of an agreement to which she is not party - does she fr example abide by the landlord's obligations, or the landlord paramount's?  If there are stipulations in the head lease like no breeding of tiger or keeping a shed of ill-repute then these need to be wrritten into the tenancy agreement and to brought in by reference.

16.5 Must not assign, underlet or part with the possession of the allotment garden or any part of it without prior consent of The LANDLORD.

This would be open to a challenge of fairness under the UTCCR because the landlord is able to withold her permission unresaonably or capriciously.  People are generally expected to be able to dispose of their proprty as they like and a blanket prohibition on assignment is likely a fundamental violation of the tenant's right to the quiet enjoyment of her property, so a prohibition on assignment is likely to be unfair unless the landlord has some objective criteria for approving an assignee, such as someone who is elligable for an allotment.  Landlords wanting to prevent tenants assigning their plots to help people jump the waiting list is likely unfair as that isn't a legitimate interest of the landlord.  A blanket prohibition on underletting is also likely unfair as it doesn't allow for the legitimate needs of the tenant, such as when the tenant might be temporarily unable to tend the whole of the plot, so again the landlord would need to set down some objective criteria which didn't go further than was necessary in protecting the landlord's legitimate interests.

There's also the possibility that the term would be subject to a challenge under the plain Engligh Regulation of the UTCCR because not everyone will know what "assign", "underlet", and "part with possession" mean.

16.8 Should always attend Association meetings where possible

As before, not clear that membership of an association can be obligatory for council allotments.  Whether a society would want to evict a tenant for not going to committee meetings is a matter of policy, but it strikes me as rather heavy.  This is really one for the society rule book, not the tenancy agreement.

16.9 Must agree that the allotments are for leisure and personal use only. Tenants must not sell any produce from their plots (unless for the benefit of charity or The LANDLORD) nor use them for any illegal or immoral purpose.

I don't think a council has the power to make such a rule.  Council powers are limited to Section 28 of the small holdings and allotments act 1908.

I think this could be open to a challenge of fairness.  Tennants of allotments were expected to sell their produce, and tenants of allotment gardens were always allowed to sell their surplus, and the landlord is going further than necessary to protect a legitimate interest, and that can make the whole rule unenforceable.

16.10 Only The TENANT and those specifically invited by The TENANT are to be allowed on the site.

Not sure what purpose this rule serves.  The tenant is entitled to invite whoever she likes onto her plot and the landlord can't interfere with that, and a rule prohibiting people in general from wandering around the site who are nothing to do with the tenant is obviously unfair on the tenant.

16.11 Will conduct himself/ herself in a friendly and harmonious manner with their fellow plot holders regardless of their race, gender, disability, age, sexual orientation or religion.

I don't think a council has a power to make this rule.

I like this vision of nirvana, but I suspect a rule that requires such universal friendlyness and harmony is likely unfair given that we're all reasonably entitled to be miserable *fatherless children*, within acceptable limits.  I suspect a less ambitious "don't be a complete arse" rule will be less liable to challenge.

16.12 Understands that any nuisance, annoyance or harassment (relating to race, gender, disability, age, sexual orientation, religion or other matter) to any Tenant, if proven, will result in immediate termination of the Tenancy by The LANDLORD whose decision shall be final.

As before, you can't terminate with immediate effect.  Section 146 Law of Property 1925.

There is a possible challenge under UTCCR over the landlord having final decision here.

16.13 Will NOT allow children to play, or walk, on other people’s allotment plots without their permission. No child under the secondary school age of 11 years is allowed on the site unless he/ she are supervised by an adult. Children must be supervised within the confines of the Garden Plot occupied by The TENANT.

It is not clear to me that a council has a power to make such a rule.

As drafted the tenant is obliged to prevent children playing on or walking on other people's plots, even if those children are with the tenants of those other plots.  Drafting a rule so boradly as this (albeit unintentionally) makes the whole rule unfair and unenforceable.

There is a possible challenge here on the fairness of the rule.  A tenant is entitled to the quiet enjoyment of her plot, and that probably includes allowing her children to visit the plot on their own to collect eggs, pick veg, etc, even if the children are under 11.  Children being a nuisance is caught by the general nuisance rule and doesn't need a rule all of it's own, and child-hating committeess need to wind their neck in a bit.

16.14 Understands that The LANDLORD has the right to refuse admittance to any person other than The TENANT or member of his/ her family unless accompanied by The TENANT or member of their family.

It's not clear to me that the landlord has this right.  A tenant has the inalienable right to the quiet enjoyment of her plot, and that may very well include allowing whoever she likes to visit it on their own.

16.15 Agrees that any case or dispute between The TENANT and any other Tenant on the allotment site will be referred to The LANDLORD and the Landlord’s decision will be final.

This is almost certainly unfair under UTCCR.  The supplier can't restrict the legal remedies of the consumer in case of dispute.

16.16 Is made aware that The LANDLORD holds public liability insurance covering all tenants and visitors, however common sense must prevail and tenants have a duty of care to be mindful of themselves, fellow tenants and any visitors.

I'm not sure what this rule is trying to say.  Whether the landlord holds public liability insurance is a matter for the landlord.  Tenants do indeed have a duty of care under the occupier's liability act 1984 for the safety of visitors (invited and uninvited) to their plots, and it's the landlord who has the duty of care for the common areas.  Tenants obviously have a common-law duty of care to each other, but I'm not sure how it helps mentioning this.

[Big Gee]

Thanks Unwashed.

The tenancy agreement draft that you have read & commented on so far, is for use as a basis for a contractual agreement between:
 a) a private allotment group (association/ society etc. referred to as The Landlord) and
b) an individual plot holder (Tenant) who is a fully paid up member of that group (only).

The tenancy agreement is not an agreement between a Council and individual plot holders who are members of the private allotment group. Therefore the requirements of the various 'Allotment Acts' are somewhat diluted, as the acts concerned are primarily geared to arrangements for council allotment sites, where each individual plot holder would normally enter into a contractual obligation with a council.

The only link to any Council (referred to as the Landlord Paramount in the draft document under scrutiny here) is between the Council (who happens to be the landowner who has licenced use of the land to the allotment group in this case) and the allotment group itself. However the tenancy agreement entered into between the plot holder and the private allotment group (that they are already a member of), are bound by the terms of the licence issued by the council (or any other private landowner) to the allotment group as a body.

Reference to adherence to the group's constitution requires that the tenant has full access to that document before he/ she commit themselves to the terms of the tenancy agreement. The agreement should not be entered into until the prospective tenant has had full sight and time to study the constitution of the group. To put it simply any member of the allotment group is bound by the group's constitution before he/ she enters into a tenancy agreement with the group for a garden plot within a portion of the land that the group holds a licence for (from a council or any other private owner of the land). The tenant only enters into the tenancy agreement on a fully informed basis, including a copy of the licence document. A basic requirement is that the plot holder (tenant) agrees to the terms, conditions and rules contained in the constitution and further agrees not to breach any terms of any licence for use of the land held by the allotment group.

I look forward to your further comments on the rest of the document.

As a side observation of your comments this far, I'm intrigued by your use of the term "she" when referring to a party to the documentation. Is there a reason for that? 

[Unwashed]

You need to make it clear that the tenancy agreement is only suitable for a certain situation because that's not obvious.

You also need to document the two alternative arrangements for an association managing a council-owned site, one under a lease, the other under a management agreement. 

You're using lease and license interchangeably, but they don't mean the same thing at all.

A site association with a management agreement is occupying the site under license and is not the landlord but is simply managing the lettings on behalf of the landlord, and if that landlord is a council then all of the provisions of the allotments acts apply as well as all the various provisions of public law.

A site association with a lease is indeed the allotmenteer's landlord.


English has no gender-neutral pronouns.

[Unwashed]

17.4 Your plot MUST be kept weed free (wherever possible) and well cultivated. All plots occupied by The TENANT should always be in a clean, well-manured; three-quarters cultivated and weed free state using techniques which do not cause long term environmental damage.

There is the potential for a challenge under UTCCR when you demand the plot to be kept weed-free because that standard is in practice unmaintainable and is in excess of anything the landlord needs in order to protect a legitimate interest.

17.7 Huts and structures such as greenhouses, sheds or hen houses are allowed as long as they do not cause a nuisance to any other plot holders, for example blocking paths or light. Permission for construction should be sought for buildings over 12 M sq. (approx 4m X 3m).

There is potential for a challenge under UTCCR when the landlord has to give permission and doesn't say what the criteria are because it allows the landlord to withhold the permission unreasonably.  I've seen terms that say "such permission will not be witheld unreasonably" which is pretty much meaningless if the landlord and tenant don't obviously share the same idea of what "reasonable" might mean.  Much better to spell out the criteria, and if the landlord can't readily think what those criteria might be then that's a good indication that they don't need the rule at all.

Note that allotmenteers have a right to put hen houses and rabbit hutches anywhere they like on their plot and the landlord can't demand to give permission for these.

17.9 Chemical weed-killers and other toxic herbicide and pesticide use are actively discouraged and any use of such methods will be closely monitored by The LANDLORD. Organic preparations are acceptable.

The tenant has a fundamental and inalienable right to the quiet enjoyment of her plot and the landlord's "close monitoring" is almost certainly a violation of that, so this term is susceptible to a challenge of fairness under UTCCR.  It is in the nature of herbicides and pesticides that they are toxic, and that applies just as much to organic and non-organic ones, so this term is confused.

17.10 Poultry and bees. The LANDLORD has no objection to the keeping of hens, and bees on the allotments (for the allotment holders own use only), but no other livestock. They must be well looked after, kept clean and not cause a nuisance to any other plot holders. This is wholly reliant on the LANDLORD PARAMOUNT giving individual permission for such activity. Written permission must be sought from THE LANDLORD to keep poultry, or beehives on The TENANT’s allotment garden plot. Permission will then be sought from the LANDLORD PARAMOUNT on The TENANT’s behalf.

Allotmenteers have a right to keep hens and rabbits anywhere on their plot under Section 12 of the Allotments Act 1950 and any term that tries to limit that (other than preventing nuisance and health risk) is unenforceable.  This term is therefore also unfair under UTCCR.  The landlord can probably ask to be informed, but can't demand to give permission because that permission is never required.  The landlord can make what rules she likes about bees and other livestock.

17.12 Bonfires are NOT allowed on individual plots. Any fires must be contained within the communal area set aside for burning material that cannot be composted. You must not light any bonfires at inappropriate times or cause smoke or nuisance from bonfires to interfere with neighbouring plot holders or other neighbouring householders.

Not a problem with the rule as such, but a site that insists on burning in central site incinerators is almost certainly within the purview of the Environmental Permitting Regulations and would need to get a permit for this activity, and that might not be easy as it would probably count as trade waste incineration.

17.14 Small Wildlife Ponds are allowed, but only after written consent has been given by The LANDLORD after receiving a request accompanied by a detailed plan of what is intended. Ponds also need to be approved by the LANDLORD PARAMOUNT.

Again, if the landlord wants to give permission she really needs to spell out the criteria for the decision or the term could be open to a challenge of fairness.

[Unwashed]

18.  This tenancy will determine on the rent day after the death of The TENANT and may also be determined in any of the following manners:

I see this term a lot, but I'm far from convinced that it's lawful.  A tenancy is property and like any other property it doesn't just cease to exist if the owner dies, it becomes part of the estate.  A license is a personal arrangement between landlord and isn't property so a license will cease to exist on the death of the tenant, but not so a lease which the allotmenteer is almost certainly entitled to bequeath to someone else.  My guess would be that this term would be unenforceable under UTCCR.

Not many allotmenteers will know what "determine" means and this term might therefore be unfair under UTCCR.

a. By either party giving the other twelve months previous notice in writing.

It's probably fair because landlord and tenant now have the same notice requirement, but it's six months for the tenant under common-law and there is little to be gained by extending it to 12 months.

b. By re-entry by The LANDLORD any time after giving one month's previous notice in writing to The TENANT.

The landlord can't just exercise the right of re-entry on a whim, it needs to be in consequence of some breach of a condition of the tenancy, and you need to say that here.

Not many allotmenteers will know what "re-entry" means and this term might therefore be unfair under UTCCR.  It's a tricky one though because it has a specific technical meaning and probably needs to be there, so I guess it should probably have an explanatory note.

c. If the rent or any part thereof is in arrears for not less than forty days whether legally demanded or not.

d. If it appears to The LANDLORD that there has been any breach of the conditions and agreements contained within this document on the part of The TENANT and at least three months have elapsed since the commencement of the Tenancy.

I may have missed it, but if you want to forfeit the tenancy for a breach of a rule then you have to make it expressly clear that the rule is a condition of the tenancy, and I don't think the agreement has done that.  Just breaking a rule doesn't ordinarily give the landlord the right to forfeit.

19 Rent Review
19.1 The rent hereby reserved may be varied by The LANDLORD giving notice to The TENANT on or before the sixth month in any year of the tenancy, such notice stating the annual rent to be payable for the plot/plots occupied by The TENANT.

Almost certainly unenforceable and unfair.  The landlord has bound the tenant to give at least 12 months notice to quit, but the landlord only wants to give the tenant six months notice of any rent increase, and as there is no limit on the increase the landlord can impose it creates an intolerable unfairness as the tenant cannot escape an unpleasantly large increase.

[marcitos]

Our LA has always referred to the self-management agreements as licenses. It still does so in its projected plans for an overhaul for self managed sites next year. However, the agreement paperwork says lease. Bit confusing as it's always been understood as a license agreement by self managed sites in our area.

[Unwashed]

Our LA has always referred to the self-management agreements as licenses. It still does so in its projected plans for an overhaul for self managed sites next year. However, the agreement paperwork says lease. Bit confusing as it's always been understood as a license agreement by self managed sites in our area.

There are two distinct possibilities, lease and licence, and both are possible.  Councils should understand the difference and the arrangements should be unambiguous, but that's not always the case, and even when the council is clear about the arrangements the site association sometimes has a less than firm grasp of the technicalities and its implications.

In practice if everything is running smoothly then it doesn't much matter, but if there is a dispute between any of the association, council, and allotmenteer, then it can be important to know who exactly the landlord is, what power the association has to make and enforce rules, the application of the allotments acts and public law, and what recourse the allotmenteer might have to the local authority complaints process.

It's not necessarily easy to find out what the arrangement is either because you can't just go by what the paperwork declares itself to be:  town clerks can easily confuse the terms and a lease can call itself a license, and a management agreement can call itself a lease, so you have to look at the effect of the agreement, and these kind of arguments are not uncommon and are invariably expensive.

[Big Gee]

Thank you Unwashed.

I'll mull over your comments & I'll then pass them under the nose of Jayne - a friend of mine who is a practicing lawyer and legal professional. She went through the original draft with me & made a few ammendments to make it what she calls "legally robust". Like you I'm not a legally trained professional, (but I have successfully been around the block a few times in matters like this), so I will bow to Jayne's advice in these matters, although I will analyse what you've written, and take on board some of your observations.

Thank you very much indeed for the great effort you've gone to.

G.

[Big Gee]

Our LA has always referred to the self-management agreements as licenses. It still does so in its projected plans for an overhaul for self managed sites next year. However, the agreement paperwork says lease. Bit confusing as it's always been understood as a license agreement by self managed sites in our area.

For the sake of clarity:

"Occupation: Definition of a lease as opposed to a licence

It is important to have an understanding of the difference between a lease (that is a tenancy) and a licence under general law so that you know what you are dealing with in any particular case.

The requirements for a lease are

    exclusive possession of a defined area of land,
    for a fixed period (or series of periods) of time,
    with the intention to create an estate in land - that is an interest in the land itself which can be assigned or sold.

Rent will usually be paid but it is not an essential requirement. Exclusive possession for a term under an enforceable agreement (for example by deed) will be sufficient.

However, it is unlikely in practice that a periodic tenancy would be granted without provision for payment of rent and the absence of such provision may well suggest a licence rather than a tenancy.

A licence is simply a permission to use land. It allows someone access to the land of another for an agreed purpose. It is an authority that justifies what would otherwise be a trespass. It does not confer any interest in land.

If there is no exclusive possession then the arrangement cannot be a lease and must be a licence.

The general rule is that the Court will look at the substance of the agreement rather than the form in which it is expressed. Street v Mountford [1985] AC 809 gives a good exposition of the law in this area.

Other arrangements that may be encountered which are not grazing licences include Profits a prendre. This is an entirely different legal mechanism being an incorporeal heriditament, a right to take something that is part of the land and capable of being sold from another person’s land - in this case a Right of Herbage whether for a fixed or periodic term."