November 2016

Recently, we were asked whether a lessee under a farm lease was allowed to grant a licence to a beekeeper for a honey venture. Was the landlord required to consent to this? Was it a breach of the lease if it had already been done?

Surprisingly, there is very little case law on this issue. But it must be a very common occurrence with the recent surge in apiculture (beekeeping).

Generally speaking, a lease will grant to the tenant a ‘full and exclusive’ right to run the land as best as they should, using ‘good practices’.

Pollination of clovers and grasses is a side effect of hosting bees – therefore placing beehives may well fall under this category as ‘good practice’ as a way of maintaining the land.

But a standard lease term is that the lessee should not sub-let or otherwise part with possession of the land. Is a beekeeping licence doing that? The lease may even preclude a licence to a third party.

However, there are indicators of how a court might approach the issue.

First, whether beekeeping activities constitutes a licence is considered under section 207 of the Property Law Act 2007. This section states that a licence means ‘a licence to occupy land in consideration of rent, or a payment in the nature of rent, or a payment in kind of any form’. Therefore even if there are no documents regarding the terms of the beekeeping arrangement, if some consideration is made in return for the availability of land to place hives, the court will likely determine the beekeeper’s rights as being under ‘licence’.

Secondly, the nature of the land is largely critical to the court in its determination. If the land is Maori freehold land, different rules come into play. Section 192 of the Te Ture Whenua Act defines a lease as ‘includes any sublease, licence, grant or other alienation conferring upon any person a right… to the use or occupation of the land for any purpose, or a right to enter on land for the purpose of removing timber, minerals, flax, or any other valuable thing attached to or forming part of the land ….’. Therefore, if the land in question is Maori freehold land and the lease refers to consent to sublease or assignment, we would conclude that the landlord consent requirements would apply for the ‘lease’ to a beekeeper.

Finally, and of most significance, are the terms of the lease agreement itself. The lease is what governs the relationship between the landowner and the tenant. It is an opportunity to negotiate terms which suit both parties and come to a suitable agreement for all involved. If a landowner wishes for a specific type of farming to be carried out on the property, this should be dealt with in the preparation stages of the agreement.

Each lease will usually contain provisions that deal with the need for landlord consent, in some cases the tenant may not be required to gain consent therefore having the full and exclusive right to use and enjoy the land (including beekeeping and retaining monies for it). Generally however, there will be some form of consent provision.

The upshot is that a farming lessee should NOT assume he can allow beekeepers on to the land.