This section is all about written agreements, such as leases and licenses. We are very grateful to the Community Land Advisory Service for their groundwork in this area. To download their Overview to Leases, click here.
Why try & get a written agreement in place?
Some people may wish to skip over this section. However we have found during the Somerset Land & Food Project that getting more than a verbal agreement at the start is a hugely beneficial process - it is a way to survey everyone’s needs, make things explicit and transparent and give all actors involved a sense of peace and protection which will affect landowner-user relationships as well as how the land is cared for.
Having a lease in place means makes it easier for everyone to uphold their rights and should lead to a consensus which is record, clear and easier to enforce.
What is a lease & what is its function?
A lease is a contract agreed and signed between the owner and the tenant and must specify the beginning and length of the lease, the site to be let and the rent. We can simply agree things verbally but people forget, misunderstand or change their minds so the agreement is best to be written down and signed by both owner and user.
This allows both owner, or Landlord, and user, or Tenant, to be clear about what they have agreed, their rights and their obligations. The minimum we need to agree is who the Landlord and Tenant are, a description of the area to be used, or let, the length of the lease, and the cost, or rent. Usually the Landlord will want to control what the land will be used for.
For more valuable or complicated sites other details may need to be included, such as responsibility for insurance, payment of rates, access arrangements etc. The main points we agree are often called “Heads of Terms” and you will find a suggested template and a How To document about filling in the template here.
The intention of a lease is to set out the rights and responsibilities of both the landowner and his or her tenant. Both parties then know what they can and cannot do and can rely on the other party for what they can and cannot do. A lease is there to protect both landlord and tenant.
Download more information about leases & licenses:
• Licenses Factsheet - A licence is a permission given by the occupier of a premises (who may be the landowner or tenant) to allow someone else to use their premises alongside them.
⁃ Overview document - what is a lease, different types of leases, do I need a lawyer?
⁃ How to register a lease - compulsory & voluntary registration, application process for registering your lease, fees, glossary
⁃ Leases - who can sign a lease, incorporating your group
⁃ How to complete your lease requirements template- what to put in your lease requirements/heads of terms including information on landowners, tenants/occupiers, site, rent, terms, access & parking, permitted uses, insurance, maintenance, erection of hard standing & buildings, compensation for improvements, responsibility for legal costs, subletting, break clause, water
⁃ Download an example Heads of Terms template here
• Business Lease information - with information on what is a business lease, business lease templates, finalising the business lease
• Farm Business Tenancy Factsheet
• Allotment Agreements
Template licenses include:
⁃ From the National Society of Allotment and Leisure Gardeners
⁃ From Capital Growth
⁃ From the Meanwhile Project
⁃ South Somerset District Council
⁃ You can also download an example management agreement for a woodland here.
Profits À Prendre
This information is taken from the Community Land Advisory Services factsheet on Profits à Prendre, which you can download here.
Profits à Prendre is an entirely different legal mechanism than a tenancy or a licence. It is the right to take something that is part of the land and capable of being sold, for example an orchard owner could give an abundance group the right to harvest the apples from his/her trees.
Because it is a right to take, it means that the owner of the land can remain in legal occupation whilst granting the right to another party. The other party has no additional legal rights and because of the nature of the activity, it is not necessary for there to be notice periods for the activity to stop.
A fee may be charged. It need not be paid in cash; it could be in kind, including services or produce.
In certain circumstances, it may not be necessary to enter into a written legal agreement because it is an informal one off arrangement.
The parties to the Profits à Prendre need to have a “legal identity”. This could be an individual, several individuals, a company (including a community interest company (CIC)), a limited liability partnership, a charitable incorporated organisation (CIO) or an industrial and provident society (IPS).
Therefore an unincorporated community group would have named individuals, such as the group’s secretary and the chairperson listed as a party to the Profits à Prendre. They would be personally responsible for complying with the terms of the agreement. If they no longer wish to be involved with the group, a new Profit à Prendre will have to be entered into with new individuals.
Profits à Prendre have to be in the form of a deed which is required by law to be prepared by solicitors, barristers and licensed conveyancers in order to be valid.
Finalising a Profits à Prendre
1. Consider if it is necessary to enter into a written legal agreement, as it may be an informal one off arrangement
2. Both parties need to agree the following:
3. At this point it may be worth revisiting the agreement type flow chart to make sure that the Profits a Prendre is still the most suitable arrangement for your project.
4. You will need to instruct a solicitor to draw up the Profits a Prendre as it is a deed and only a solicitor, barrister, public notary or licensed conveyancer may prepare deeds.
5. As it is a deed, you need to sign the Profits a Prendre in the presence of witnesses who also have to sign. It must be in writing and signed by the parties as a deed.