Maintenance responsibility under the Agricultural Holdings Act or Farm Business Tenancy

Fenella Eddell is a solicitor at Barker Gotelee

Drains… Dull as ditch water? Not when flooding is at stake…

Winter is upon us and this often means flooding too. It is frustrating enough that fields can become waterlogged, crops damaged and roads blocked, but what happens if the situation is caused by a failure to maintain drains and ditches on a farm subject to a tenancy. Who is responsible – the landlord or the tenant?

An Agricultural Holdings Act (AHA) or Farm Business Tenancy (FBT) tenant may have a full repairing tenancy, in which case they are likely to be responsible for the maintenance of any drains, ditches and watercourses on the farm (for which they may receive compensation at the end of their tenancy).

This is particularly likely to be the case if the tenancy falls under the AHA 1986 regime, in which case the tenancy agreement may refer to The Agriculture (Maintenance, Repair and Insurance of Fixed Equipment) Regulations 1973. These are deemed to be incorporated into every tenancy of an agricultural holding, unless they are overridden by any written terms in the tenancy agreement. These make the tenant responsible for all above-ground drains and sewers, including ponds, watercourses, sluices and ditches.  By implication, the landlord would therefore be responsible under this legislation for any below-ground drains.

However, since 1 October 2011, most private drains have been transferred to the statutory drainage providers. The landlord will only therefore be liable if the relevant drains are not adopted.

If flooding interferes with the tenant’s ‘quiet enjoyment’ (i.e. possession without interruption) of the farm, the landlord can find himself liable.  In one particular case, where a landlord leased two farms, one tenant’s farm was damaged by flooding from the other tenant’s farm, resulting from a problem with the drains, and the landlord was held liable for this as a breach of the tenant’s quiet enjoyment.

Both the landlord and tenant should check their insurance policies to see whether flooding is an insured risk, as this may determine the best course of action, in conjunction with the insurance provisions in the tenancy.

The Internal Drainage Board has a general responsibility for the restoration and improvement of ditches. The First-Tier Tribunal (Property Chamber) – which has taken over the responsibilities of the Agricultural Land Tribunal – also has the power to order remedial or improvement works where a ditch is in a condition that damages land.

In all cases, it is clear that both parties will want a solution to ensure the land does not become waterlogged, which would breach the statutory requirements laid down for the management of land. To avoid uncertainty and costly delay when problems such as these arise, it is always best to set out specific drainage obligations at the start of a tenancy.

Fenella Eddell is a property solicitor at Barker Gotelee, solicitors in Suffolk

Property Solicitors – click here for more information on our range of services

Fenella Eddell recently wrote this article “Drains, ditches and watercourses” which appeared in EADT County Life column– 22nd November 2014.