Topic: Threatened with eviction

[gds]

Hi All

My mum has had an allotment for quite a few years now and has just received a second letter of eviction today.

She spoke to some of the people on the committee last time and found that the only reason for complaint was a dismantled greenhouse that had been left on the plot, and had in fact already started to be removed before she received the letter. The matter was dropped after this.

Well, she has received another letter this morning telling her that she has not been working her plot this year and therefore to remove all that is hers by the end of December. They also said that she had been sent, and that they had on record letters, that had been sent previously warning her of the state of her allotment. The only letter she has ever had from them has been the previous notice of eviction, which was definitely not a warning, and even if they were referring to this, it was a single letter, not multiple letters.

She has phoned one of the committee members today and was told that she "couldn't just turn over a square of land in the corner". I don't know about anyone else, but I find this extremely rude, especially considering the fact that the allotment has been worked (she spends most of her free time up there!) and that pretty much all the plot has crops growing on it. Some parts are weedy as she grows organically, but it is worked all the same.

I fully dispute their argument that it has not been worked, because I know the amount of time, effort, and money that both my parents have exerted on the allotment, and have tasted first hand some of its produce. It seems to me that someone on the committee has a bee in their bonnet with regard to my mother and her allotment.

Where do we stand legally with this? I think the land is owned by the local church if that makes any difference.

Having read up a little bit, I am under the impression that for her to be evicted, she must have clearly broken one of the terms of the leasehold (which she has, to her knowledge, never seen or signed anything) and have been given warnings and a reasonably opportunity to rectify the breach(es), or be given the statutory 12 months notice. Neither of which are true in this case.

If anyone has any advice, we would be grateful as she is close to tears at the moment as she has put so much work into her allotment.

Thanks again!

[kt.]

You would need to ask for proof of all letter sent and not just photocopies.  Take the committee members round the plot to show them what veg is growing.  Depending on how your site is run, you may be able to appeal the decision to the town council. You may also be able to appeal  by self representation at the next committee meeting.  Ensureing the person making the allegations is present to offer their case too.  If the committees word is final then it would be more difficult.  Are there any plots worse than yours? If so have they all had letters too.  I have heard of committee members sometimes wanting people off so they can allocate to their neighbours and friends,  or they want a bigger plot themselves.  If you have photos of before and after your work efforts then this would help.  Make a list of what has been done during the year.  

Some parts are weedy as she grows organically, but it is worked all the same.

Having read up a little bit, I am under the impression that for her to be evicted, she must have clearly broken one of the terms of the leasehold (which she has, to her knowledge, never seen or signed anything) and have been given warnings and a reasonably opportunity to rectify the breach(es), or be given the statutory 12 months notice. Neither of which are true in this case.

Though she may well be growing organically,  there is still no need for excessive weeds.  Organic is growing without the aid of chemicals,  and does not exclude weeding, usually by hand.

Her contract will say how much notice of eviction she is entitled to.  I have never heard of anybody being given 12 months notice.  Our site rules give a 28 day warning to rectify the problem, followed with a further 28 days to clear your possessions if the problem is not rectified.  

As the allotment supervisor on our site, I usually try to get to speak face to face with plot holders before going down the official letter route.  But I only offer them this advice once.  Second time will automatically result in official correspondence.

[Baccy Man]

Having read up a little bit, I am under the impression that for her to be evicted, she must have clearly broken one of the terms of the leasehold (which she has, to her knowledge, never seen or signed anything) and have been given warnings and a reasonably opportunity to rectify the breach(es), or be given the statutory 12 months notice.

If she has never signed a contract her rights (if she has any at all) to the plot could be severely limited.

[alotalot]

Most tenancy agreements give a right to appeal.

[Trevor_D]

There seem quite a few odd things here:

She should have signed a tenancy agreement, which states both her duties and her rights. If she hasn't, then it looks as if whoever signed her up in the first place is at fault, but it doesn't leave her in a good position, as Baccy Man has pointed out.

Any warning or eviction letters ought to have been sent by registered post, so that the sender has a signature to prove it has been received. But that only comes after a low-key inquiry, just in case there are genuine problems.

And - as ktlawson points out, there is no such thing as 12 months notice: it's a 28 day warning, followed by a 28 day eviction notice.

If the land is owned by the local church then I assume that it's an independent site, not a Council one. We're in exactly the same position. In this case, the site is run by the Committee, but on behalf of the members. Not only should there be a contract with individual members, but a constitution to govern the running of the site. If not, then those running it have allowed themselves to be placed in rather a sticky situation.

I suggest that she - not you, because you're not the tenant - contacts the Secretary of the site and asks why she is under threat of eviction. She might also enquire why she has never been required to sign a lease. Most Secretaries don't actually want to get rid of people - they just want the land cultivated.

It could be, of course, that they do actually have the power to evict, if the members have given that to them. Our members have passed a motion allowing the Committee to refuse any member the right to renew their lease if their plot has not been cultivated to our satisfaction. It's rather a big power, and we haven't used it yet, but it's there.

Could it be that your mother has rather too large a plot to cope with? Perhaps down-sizing might be a solution? She's had it for a number of years, you say, and it was common a few years back to let someone have a large plot just to get some money in. I'm only letting out 5-pole plots now, even to experienced gardeners.

[SMP1704]

I'm with KT - growing organically is no excuse for weeds.

I'm also with Trevor that, although this may be difficult for your Mum, she is the tenant (however vague that may be) and she should be the one to talk to the committee. 

I think that the 12 months notice is the notice that the landowner or leaseholder must give to terminate site usage as allotments.

I am a site sec and I have to say that I am growing tired of a whole host of excuses/reasons for non cultivation - new babies, full time job, inclement weather, shady plot and top of the list is the organic = weeds argument.  The bottom line is that renting an allotment is a hobby choice for the vast majority of people and should be treated as a privilege, not a right - after all how many other hobbies have an annual subscription of less than £100??

Weedy, untended plots spread weed seeds across the whole site, invite vermin to nest (no chance of being disturbed) and encourage vandalism aka broken window syndrome.

That is probably not exactly what you wanted to hear but that is the way it is.

There are two sides to every story.

[Robert_Brenchley]

I get sick of excuses as well, but evicting an old lady is pretty extreme, and other alternatives should be explored first. We have someone at the moment who's looking for someone to share with. We don't know the situation.

I'm a bit wary of committees having the power to evict because abuses do happen. The former lot on my site used to complain bitterly that they didn't have the power to get rid of non-cultivators, but the most neglected plots on the site belonged to a committee member, and people used to get reported for non-cultivation purely because they'd taken a dislike to them!

[Deb P]

To be a committee member on our site, you have to have your plots (s) cultivated to the required standard and have been a plotholder more than 1 year. As a private site the committee does have the power of eviction, but we have a slightly more generous notice period; six months from the first warning letter, then notice to quit if not up to standard. We also photograph each plot at each assessment in case of dispute.

[Unwashed]

Having read up a little bit, I am under the impression that for her to be evicted, she must have clearly broken one of the terms of the leasehold (which she has, to her knowledge, never seen or signed anything) and have been given warnings and a reasonably opportunity to rectify the breach(es), or be given the statutory 12 months notice. Neither of which are true in this case.

Yup, that's pretty much it (in England and Wales anyway).  In a nutshell then, your Mum can't be evicted without being given reasonable chance to put right any breach of her tenancy agreement.  There's clearly been a breakdown in communication here and that's very unfortunate, but it's nothing that can't be put right.

And when I say can't be evicted I mean a court will not award the committee an eviction order - it's quite possible for the committee to serve an eviction notice, but your Mum just has to stay put and let the committee apply to the County Court - well, that's assuming the committee can't physically exclude your Mum from site by changing the locks or something like that, because that would be a lawful means of evicting your Mum and it's harder to deal with.  In general the committee can't physically evict your Mum themselves, though many people wouldn't stand up to that kind of grief.  Encourage your Mum to stand firm.

In detail then:

An allotment is leashold property so Law of Property Act 1925 Section 146 governs how you can be evicted for breaching a condition of the tenancy agreement.

First off the Committee need to show that your mother has breached a condition of the tenancy agreement and that such a breach can lead to eviction; so that means they must have evicence of the competantly drafted tenancy agreement, and evidence of the breach.  If your Mum has been a tenant for a couple of years, especially if there is some evidence of the committee accepting rent from her, then there shouldn't be any question that a tenancy exists so there's no question that a lack of a signed agreement puts your Mum in a weak position, rather the Committee will have a difficult job convincing a judge that any cultivation rule applies to your Mum's tenancy, and even if it does, without an express forfiture term she can't be evicted for breaching the rule anyway.  But keep that up your sleave.

Before your Mum can be evicted she must be served with a notice specifying what rule is being breached and giving her reasonable time to put the matter right.  Note that it's ultimately the court that decides what time is reasonable, so if your tenancy agreement says 28 days notice that's just a contractural minimum - at this time of year I wouldn't think it reasonable to require the plot to be cultivated before mid March.

Note though, just because your Mum doesn't have the notice doesn't mean it wasn't competantly served.  She should ask the committee for a copy of the notice.  Notice for other stuff the committee doesn't like doesn't count - it has to be notice specifically about the cultivation.

[Unwashed]

For information, note that there are two totally different ways of terminating a tenancy:

1. Forfiture or re-entry.  This is where you have broken a term of the tenancy agreement.  Termination by forfiture is governed by Section 146 Law of Property Act 1925, which basically says if you can put the matter right then you're entitled to reasonable time to do so, though if the breach can't be put right the tenancy can be terminated immediately.  The notice period is often specified in the tenancy agreement, but it's only a minimum because you can't contract out of the 1925 act's requirement for the notice to be reasonable, which depending on the circumstances could be quite a bit longer that the usual 28 days. So for example, if you haven't cultivated your plot to the standard required by the agreement then you can be told to put it right, but for example if you have a bonfire and your tenancy agreement says no bonfires then your tenancy can ber terminated without notice.

2. Notice to quit.  A tenancy agreement should make provision for either you or your landlord to terminate the tenancy.  Just as you can give notice to your landlord that you don't want to keep your plot (and it's not usual for the landlord to hold you to the notice period), so the landlord can serve notice on you that she doesn't want you as a tenant any more.  The length of notice is a contractural term, but 12 months is usual, and it's a statutory minimum if the Allotments Acts apply.

[Old bird]

I am sorry - but I think that having an "untidy plot" gives any controlling body the right to evict tenants.  As you mention your mother gardens organically with "weeds being evident" I am afraid that organic gardening does not mean that you can allow weeds!!

Also you mention that your mother has been warned.  I would think that unless she had made a very determined effort to improve her allotment then she may have no leg to stand on.  A dismantled greenhouse on the plot?  Well how long had that been there?

I am of the opinion that your mother has possibly not kept her plot "clean" in the normal manner and has upset other plot holders and committee members by not reaching a "required standard" for some time.

I would not be happy to be next door to your mother with her "weeds because she is an organic gardener".  I would certainly not appreciate the weed seed.  And it certainly does not follow that to be "organic" you have to allow weeds!!

She may take a fair bit of produce off the site but an untidy allotment is an untidy allotment. 

Paying rent every year signifys that you agree with the tenancy rules - whether or not you have them in writing is immaterial - the actual payment is agreement to the rules.

Sorry - to me it sounds like you will have a fight on your hands.  I doubt talking court action will impress anyone - that is not what the courts are here for except for housing tenancies etc.

Sorry to sound harsh - but to me this is being realistic in these days of shortages of allotments.

Old Bird

[reddyreddy]

Hello gds, I too garden organically and the weeds are a nightmare but I keep on top of them by visiting regularly and doing a bed every visit before starting at the beginning again (just like painting the golden gate bridge!). Perhaps you could reach a compromise with the committee, as it is fallow season why not focus your weeding efforts on one half of the allotment (probably the end without the greenhouse!!) make clear beds and paths, use weed suppresant fabic on parts but make it look neat and tidy all snuggled up for winter then appeal to the committee to just let out the weedy half, worst case offer to pay full rent, it's likely to be peanuts in the scheme of things. Get your tools out this weekend and help her get stuck in! Good luck  ;)

[Unwashed]

Our members have passed a motion allowing the Committee to refuse any member the right to renew their lease if their plot has not been cultivated to our satisfaction. It's rather a big power, and we haven't used it yet, but it's there.

It doesn't work like that.  There is a legal process for terminating a tenancy for a breach of the agreement, and this isn't it.

[Trevor_D]

Unwashed, we're not a Council site; we're independent and all our members are share-holders and the resolution was proposed, seconded and passed unanimously by the members at our last AGM.

But - as I said - it's a power we haven't used yet. And I certainly wouldn't dream of just not sending out the renewal notice. We have regular plot inspections - not carried by me - and any problems are reported to the Committee, who then brief me on what course of action - if any - to take. This always starts with a low-key phone call or e-mail before things get more official.

The "power" of non-renewal, like the plot inspections, is merely a reminder to members that we are only renting our land and we have a duty to keep it as well-tended as we are able.

[Chrispy]

Hi Trevor,

I'm no expert, so correct me if I am wrong, but as I understand it, any land that is let and gardened as an allotment comes under the same laws, regardless who owns it.

If this is the case then you can not enforce any rule that is against the law, even if your members agree.

AW, just because you can not enforce a rule, does not mean you can not have the rule, as you say, as a reminder.

[Unwashed]

Hi Trevor

I accept that the committee is the landlord, that's not the problem.  The problem is that for the committee to refuse a member their right to renew their lease if their plot has not been cultivated to our satisfaction is not a lawful way to terminate a tenancy because Section 146 Law of Property 1925 is prescriptive.  The tenant has, as you say, a right to renew a periodic tenancy.  If the tenant is breaking a condition of the tenancy then the landlord has to issue a S.146 notice reasonably promptly, and then follow through with eviction if the breach is not put right within the period of notice.  Eviction without the S.146 notice is not lawful, and if the landlord doesnt' act reasonably promptly after she knows about the breach of the tenancy agreement then she is seen to have accepted the breach and is not subsequently able to enforce it.

Say a tenant has not adequately cultivated her plot in the year and the committee does not served a S.146 warning, or else serves one but does nothing when the tenant failes to put the matter right within the notice period.  Come renewal time the committee can't just refuse to renew the tenancy because that's not a lawful means of terminating a tenancy.  If the tenant offers the rent and the committee refuses to accept it then the tenant just gets her plot rent-free.  The only lawful way to evict the tenant is to get a possession order and the judge will refuse because you haven't complied with S.146, and if the committee try to evict the tenant from site themselves she just calls the police who come and tell the committee how seriously they view assault and criminal damage.

[Unwashed]

AW, just because you can not enforce a rule, does not mean you can not have the rule, as you say, as a reminder.

It's an interesting point.  Mostly a tenant who is served with an eviction notice will pack up and go because they'll accept the authority of the landlord, even if they feel agreived.  For me it's immoral and I wouldn't stand for it.  But is it just a question of morality whether the landlord would want to use her position of authority to get her way when she knows that legally it's unenforcable?  I suspect that Trading Standards would force a landlord to change a tenancy condition which was unlawful, though it would still take someone to make the complaint.

[djbrenton]

One additional point is where natural justice comes into the matter. It is unlawful to take adverse action without giving the tenant the opportunity to hear evidence against them and the opportunity to rebut it. In other words, there is automatically a right of appeal, and such an appeal may not be heard by the same body who made the initial decision to evict.

[Unwashed]

I'm no expert, so correct me if I am wrong, but as I understand it, any land that is let and gardened as an allotment comes under the same laws, regardless who owns it.

For lease-hold plots property law is the same whoever owns the land, so you have the same basic security of tenure and implied terms of exclusive posession and quiet enjoyment, etc.

Whether the Allotments Acts apply makes a big difference.  If they do then you are guaranteed some statutory minimum terms in the tenancy agreement like a right to keep rabbits and hens, not less than 12 months notice to quit, and a right to pay quarterly.  The Acts also limit the scope of tenancy conditions to not much more than regulating the conditions under which the allotment is to be cultivated, so rules about the size of sheds and locking the gate are potentially unenforcable.  The Acts also limit the allotment to growing mainly fruit and veg for your family.

If I understand it right, the 1908 Act says that the allotment Rules always apply.  Now I'd have thought you'd need a written tenancy agreement that said the rules applied, but apparently not, so that suggests that even if you don't have a tenancy agreement the rules still apply to you, though that might not still be right.

The Acts apply to sites that were aquired by local authorities as allotment sites so they don't apply to every council site, and can apply to privately managed sites if they are managed on behalf of a council.

If the site is managed by or on behalf of a local authority then things like the Human Rights Act and Freedome of Information Act also apply.

And then there are sites that don't appear to let their plots lease hold, but rather you join an association and get a right to work a plot under licence.  Whether that's really the situation can be difficult to establish, but you have no security of tenure with a licence.  LandShare plots are let under licence.

[Trevor_D]

Unwashed, you obviously know more about the detail of the law than a lot of us, but surely the point of an allotment is for it to be cultivated. (I think the term is something like, "largely cultivated, largely by and for the plotholder and family")

Surely, that must be able to be written into a tenancy agreement? What happens if someone takes on a plot and refuses to cultivate it, but insists on his/her right to renewal?

I'm know I'm talking extremes here, but there must be something in a contract to insist that the tenant actually uses the land for the purposes it was rented for?