Occupying land without a written lease, license or agreement

Problems and confusion can often arise where someone is occupying an area of land without any written basis for doing so. Subject to the facts surrounding their taking up occupation of the land in question, many people immediately assume that the person in occupation is trespassing. This is not always the case.

Typically, somebody occupying land they do not own will be occupying under a lease or licence or some other form of interest in the land, whether written or not. It is not always necessary for a lease or licence to be set out in writing; it can be acquired or granted orally.

The basis of an occupier’s occupation will determine what rights they have in the land and, often the more important question for landowners, how they can be removed.

In an agricultural context, there are multiple types of occupation to consider, some of which grant the occupier significant rights.

To establish the type of occupation an occupier might have or have acquired (even if they have a written lease, licence or agreement which maybe does not properly reflect their actual use of the land), it is important to consider the facts surrounding their occupation.

The primary factors influencing the type of occupancy rights someone might have are:

  • Whether they have exclusive possession of the land – that is, do they occupy it on their own without interruption from anyone else?

If they do, it is likely they have a tenancy or lease of the land rather than a licence. If they do not have exclusive possession, they will more likely only have a licence.

  • Is the occupation connected to a trade or business?

A common example would be a field used for grazing horses. Is the grazing required as a part of a business, for example a livery or stables?

Another common example in an agricultural context is a warehouse or barn used for storage of third parties’ items in return for payment.

If associated to a trade or business, statutory protections under the Landlord and Tenant Act 1954 may apply. If not, then it is unlikely any specific regimes apply.

  • Is the occupier’s occupation for agricultural purposes?

Answering this question will require consideration of the definition of “agriculture” and whether the activities on the land in question satisfy that definition.

  • The date the occupier took occupation of the land?

The date the occupier took up occupation will – if they have or have acquired a tenancy/lease of the land and the use of the land is agricultural – effect the type of rights they are afforded by statute.

Put simply, if the occupier took up occupation:

  • Prior to 12 July 1984, the occupier may have acquired a tenancy with the protections of the Agricultural Holdings Act 1986 to include the right to be succeeded
  • Prior to 1 September 1995, the occupier may have acquired a tenancy with the protections of the Agricultural Holdings Act 1986
  • On or after 1 September 1995, the occupier may have acquired a farm business tenancy which will be governed by the Agricultural Tenancies Act 1995

As you will note, there are many issues to consider and areas of complexity surrounding occupation of land – particularly agricultural land.

The experts in Moore Blatch’s Rural Services Team can advise you of your position if you are occupying land, or if you own land occupied by someone whose rights in that land you would like to identify and consider more fully.