Agistment Agreements – Wintering & Writing

With the annual tup sales drawing to an end, the seasonal focus within the sheep farming community now shifts towards the winter ahead. For many shepherds – especially those managing hill farms – winter is the time of year where ewe hoggs are sent away for "wintering" on more fertile ground, under what is known as a contract of agistment. Often these agreements are based upon a quick discussion and a simple shake of the hands. However, as with any contractual arrangement, it is advisable that you put down your agistment agreement in writing to avoid any unwanted wintertime disputes.

Defining Agistment

A contract of agistment is an agreement whereby an owner or occupier of land undertakes, for payment, to provide grazing for the livestock of another for a fixed period. Typically this fixed period is for six-months (October to April) but agistment need not be confined to just the months of wintering alone; agreements are also commonplace during the spring and summer months for freshly lambed ewes.

Unlike other arrangements concerning the use of agricultural land, an agistment agreement does not create a tenancy that is protected by statute. What this means in practice therefore is that when the agreement comes to an end, the owner of the agisted livestock (i.e. the agistee) cannot claim any of the security tenure provisions enacted by the Agricultural Holdings legislation against the relevant landowner (i.e. the agister). Such a reality makes agistment a flexible means of gaining passive income for landowners who are content to allow others to use their ground for short periods of time, but who do not wish to lose long term control.

Rights & Obligations

Despite not having an interest in the agister's land, the agistee does obtain a right to the grazing of the agister's land. Conversely, the agister is under an obligation to provide a safe place to graze and sufficient grass to keep the agistee's livestock in reasonably good condition. In John Pollock & Sons Ltd v The Firm of Robert Rennie, the Land Court held that in terms of feeding, the agister need not necessarily go beyond the provision of adequate pasture to maintain the livestock in a reasonable state of health. As a result, and unless prescribed for in the agistment agreement itself, landowners are not obligated to onerously extend themselves in the feeding of the agisted livestock other than through the initial providing of pasturage for grazing. In other words, agisters will not be responsible for the provision of hard feed to maintain the livestock's condition – such an activity will fall squarely within the responsibility of the agistee themselves.

Agistment Agreements & The Benefits of Writing

As previously mentioned, with any contractual arrangement, it is advisable that you put down your arrangement in writing. Even if you have an excellent relationship with your agister, or agistee for that matter, it is still undoubtedly good practice to have a written agistment agreement in place. A well drafted agistment agreement can avoid potential disputes from arising on a number of different points:

1. Payment – One major advantage of an agreement is that it can make clear how payment will work, and what dates payment will be made. Under many agreements, the method of calculating payment varies depending upon the personal preference of each landowner. For example, some landowners might calculate payment depending upon the acreage that the agisted livestock will graze during the agistment period. In contrast though, other landowners may calculate payment based upon the specific quantity of stock that arrives on their land for grazing. Likewise, different landowners may also vary upon the required dates of payment, with some wishing to be paid monthly and others wishing to be paid in a lump sum, at either the start or end of the agistment period. With a written agistment agreement, the above monetary uncertainties can be made explicitly clear before any livestock even sets foot on the agisted land.
2. Welfare Checks – Another benefit of a written agreement is that it can outline what the agister can be responsible for, other than providing sufficient pasturage for grazing. In many verbal arrangements, there is often an agreed understanding that the landowner will check the agisted livestock daily to make sure that none require any medical attention or have escaped into neighbouring fields. Again, with a written agreement, these responsibilities can be laid out in black and white for the agister to adhere to without exception.
3. Dispute Resolution – Finally, written agreements can also regulate what happens if a dispute were ever to arise between the two parties. Whilst this may seem like an unnecessary and pessimistic term to contain within an agistment agreement, the inclusion of a dispute resolution clause can prove an invaluable mechanism for saving both time and money for everyone involved. This is due to the fact that such a clause can make provision for disagreements to be settled through arbitration or mediation, as opposed to resolving matters through the costly (and very public process) of civil litigation.