Tenant Obtains Rights Not Excluded from Lease

The right to graze animals is a valuable right for farmers and a recent case in the Court of Appeal dealt with the right of a tenant to graze livestock on common land.

The tenant had rented land which included the right to graze livestock over a ten-acre area of adjacent common land, owing to a registered right of common pasture. The right could be exercised by the landowner one year in three. There were restrictions on the number and type of animals that could be put out to pasture on the land.

When the common land was fenced off from the tenanted land by people representing the commoners of the village, the tenant brought court action against them under the law of nuisance. He sought an injunction to restrain them from preventing him from accessing the land.

The tenant's argument was simple. The right to pasture attached to the land he tenanted. It had not been specifically excluded under the lease. The lease contained a clause giving him 'the benefit of all existing and future wayleaves, easements and rights…'. Therefore, he had the benefit of the right over the common land.

The commoners argued that the tenant had agreed with a committee representing the commoners of the village to waive the right to common pasture.

In the view of the Court of Appeal, the grazing right could have been severed from the other rights attaching to the rented land and reserved for the owners of the land. It was not.

In any event, the Court concluded that the committee of commoners was a non-statutory body and there was no evidence that it had the legal power to bind the commoners. It could not therefore substantiate a claim to make a binding agreement on their behalf.

The tenant therefore had the right of common pasture.

This case shows the importance of making sure that potential issues are thought through and documents drafted carefully in order to deal with circumstances such as this where they might arise. Aston Bond can advise you on any agricultural or other property matter.

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