Topic: 28 day notice-eviction.

[pennsylvannia planters]

Hi folks,
I'm on a committe where we unfortunately have had to evict somebody, for many reasons, fly tipping ,neglect of animals, aggressive and threatening behaviour etc.
The member has had a 28 day notice to remove his horses and rubbish from his paddock, but has made it clear that he isn't going anywhere.
Does anybody have any idea of were to go next ?. We really don't want to go down the solicitor route.
The horses are currently being fed and cleaned out by another paddock owner (a friend of theirs) so the RSPCA don't want to be involved as the horses are currently in good health. (.the rspca have previously removed neglected/dead animals from this owner.
Any ideas as to what to do next?

[betula]

If it is a council owned allotment they will have a legal dept who can decide what to do next.

Preume the tenancy rules have been broken.

If you are private looks like the law is your only avenue.

[pennsylvannia planters]

It's a self managed site. We pay rent to the council.
Although i think that the new chairman knows the phone number of the allotment officer for the council, perhaps he can point us in the right direction.

[Unwashed]

PP, now that you've issued the termination notice you absolutely have to follow it up with eviction or else it gets much more complicated.  I'm afraid you ought really go and see a solicitor because it could be expensive if you get it wrong.

But if you want my totally unqualified advice that is quite easily totally wrong:  In principle you have two option.

First option is to physically evict the tenant yourself.  If the paddock has a seperate access which you can lock then all you really need to do is put on a big chain and padlock when the tenant isn't there.  But it's probably not very satisfactory because the tenant will probably just come and go by climbing the fence and make no effort to remove her stuff.  If you try this option you absolutely can't use physical force so be sure the tenant isn't around.  It's worth mentioning too, that you need to be sure the tenant isn't actually living in her barn because that makes this option illegal.

Second Option is to apply to the County Court for a Possession Order.  You pay a fee and get to put your case to a judge, and if she's convinced you get a Possession Order, and if the tenant stays put after that then you apply to the court again for the bailifs to throw the tenant out.  The judge will want to see evidence that you have followed due process.  She'll want to see the tenancy agreement, the termination notice, evidence of the breach of the tenancy condition, and evidence that the termination notice was served correctly.  She'll also want to see that the person who signed the termination notice was authorised to do so, so that's probably the minute from the meeting where the decision was made to evict the tenant, and if the signatory wasn't the Secretary the minute that delegated the authority to the signatory.  The termination notice will have to have specified a specific day on which the notice expires, so if you said "on or before such and such" the tenant might be able to argue that the notice is unenforceable.  The notice will also need to have specified the precise clause of the tenancy agreement that you claim your tenant breached and how exactly it was breached.  If the breach was capable of being rectified - like poor cultivation of an allotment - then you're obliged to give the tenant reasonable time to put it right, though you are allowed to evict immediately otherwise, such as an assault.  You might not like what the tenant has done, but if you can't convince the judge that what she's done has breached the tenancy agreement then you won't get your possession order.  If there're details in the tenancy agreement on serving notices then make sure you complied with them, otherwise the receipt from sending it recorded delivery is good, and so much the better if you pinned a copy to the paddock entrance and took a dated photo of it.  You'll need as much objective evidence of the breach as possible.  Telling the judge that the tenant was abusive is pretty weak.  Did a vet inspect the allegedly neglected animals, and if so did she give you a report?  Did the police attend when the tenant was abusive?  Do you have evidence that it was the tenant who did the fly tipping, and can you show how that breached the tenancy agreement.

It's not really so difficult, but you do have to have followed due process, and you do need hard evidence.  See S.146 Law of Property 1925 for the details of the termination notice.  I think the judge can award you costs, though it's discretionary.  And of course litegation is something of a lottery, but now you've served the termination notice if you don't follow through immediately - and I mean immediately - it looks like you've ignored the breach, and then you'll never be able to get the tenant out.

There are eviction agencies, though mostly they handle domestic premises and the process is quite different there.  If you find one that handles agricultural holdings you might find it worth your while engaging them because they'll offer the whole package - court proceedings and bailifs - for a fixed fee, and they'll know what they're doing.

[Squash64]

It's a self managed site. We pay rent to the council.
Although i think that the new chairman knows the phone number of the allotment officer for the council, perhaps he can point us in the right direction.

Our site is self-managed too and if we had this sort of problem I think the first thing I would do would be to contact the allotment department at the council urgently.

[pennsylvannia planters]

Thanks guys.
Unwashed, The guy in mention fly tipped in front of several people, this issue with him has been going on for ages (years).He actually advertised in the local paper doing house clearances, and when he attended the meeting denied it was him-until our quick thinking chairman dialled the advert and his phone started ringing ;D
This is the first committee to act.
He has had several meetings with the committee, more than enough warnings, he has signed statements saying he will rectify the situations, all to no avail.
He has threatened violence to people.
All the correct procedures have been followed and noted. The only issue is How to remove him (and his horses).

[Unwashed]

The only issue is How to remove him (and his horses).

Is it clear now from my previous post?

Hmm, It gets more difficult.  There's a legal thing called estoppel by acquiescence which means if you've previously warned this guy about something and then failed to act when he ignored your warning then you lose the right subsequently to do anything about it.  Fingers crossed he doesn't hire a solicitor.

If you rent the field from the council and then sublet to this guy then it doesn't really involve the council because it's a contract between the two of you.  However, the council will have some experience and access to solicitors so you might be able to convince them to help - but councils move glacier-slow and the clock is ticking.  Your council might be interested though because this tenant's behaviour is almost certainly violating a clause in the tenancy agreement between you and the council, and they might decide to take enforcement action against you.

[Geoff H]

Pensylvania Planters says they pay rent to the council. Does the committee pay the rent to the council and does the committee collect rent from the allotment holders? Or do you mean that the tenants pay  rent to the council and the committee is there just for day to day running? If its the latter, which i hope it is, then this pain in the backside is a tenant of the council and they have the means to remove him. If so then make sure plenty of people complain to the relevent department of the council about his behaviour stating actual incidents. These will get logged and then the council has all the ammunition they need to get it sorted.

[pennsylvannia planters]

The committee pay rent to the council,
it is the committee's responsibility to collect the plot holders rents.

[Unwashed]

The committee pay rent to the council,
it is the committee's responsibility to collect the plot holders rents.

PP, can you say clearly please:  Does the committe rent the field off the council and then sublet to the tenants, or are the tenants tenants of the council and the committee collect their rent on behalf of the council?

[Robert_Brenchley]

If you pay rent to the Council, the Council should deal with this. Estoppel by acquiescence? Does that mean that if the Council send me a letter warning me to stop doing X, and I don't stop, then it becomes legal if they don't follow up?

[Unwashed]

If you pay rent to the Council, the Council should deal with this.

Not really, it depends.  If the tenants are tenants of the council and the committee just collects their rent and pass it to the council then yes, the council is the landlord and needs to do the evicting and the committee probably doesn't even have the power to evict.  But if the committee rents the land from the council and sublets to the tenants then the committee is the landlord and needs to do the eviction.  Actually it's complicated if the committee of an unincorporated association is actually the landlord because it isn't a body corporate and there'll need to be a trust to own the lease from the council, and if this hasn't been executed correctly it gets, um, difficult.  Which is it PP?

Estoppel by acquiescence? Does that mean that if the Council send me a letter warning me to stop doing X, and I don't stop, then it becomes legal if they don't follow up?

Pretty much.  Like if there's a rule that you can't grow trees, and you do, and the council know about it and chose to do nothing, then they might not be able to enforce the rule subsequently.

[grawrc]

The example of estoppel by acquiescence in wikipedia suggests something slightly different
"Estoppel by acquiescence may arise when one person gives a legal warning to another based on some clearly asserted facts or legal principle, and the other does not respond within "a reasonable period of time". By acquiescing, the other person is generally considered to have lost the legal right to assert the contrary.
As an example, suppose that Jill has been storing her car on Jack's land with no contract between them. Jack sends a registered letter to Jill's legal address, stating: "I am no longer willing to allow your car to stay here for free. Please come get your car, or make arrangements to pay me rent for storing it. If you do not do so, within 30 days, I will consider the car abandoned and will claim ownership of it. If you need more time to make arrangements, please contact me within 30 days, and we can work something out." If Jill does not respond, she may be said to have relinquished her ownership of the car, and estoppel by acquiescence may prevent any court from invalidating Jack's actions of registering the car in his name and using it as his own."

[pennsylvannia planters]

Bloomin heck.  :-\
We (the allotment association), had our monthly meeting this evening.
The committee do the evicting as we are a self managed association.
The council charge us rent, and then we sub let it into allotments.
The council will only become involved if it gets complaints from the "general public" about any allotment matters.

[Jayb]

Changing the subject a little;
If he walks away or is prevented from accessing the paddock. Who becomes liable for the welfare of the horses. I know it is not the same as a Livery where they can be held responsible to maintain health/welfare. But do you in-pound them and sell them on or what?

[Unwashed]

PP, out of interest then, who actually owns the lease on the land from the council?  Is there a trust document and are there nominated trustees?

[Robert_Brenchley]

It sounds as though I may have made beekeeping legal on Birmingham allotments, though I don't know how the Council could be forced to admit it. In 2003, I had a letter pointing out that they were illegal, and asking me to remove them 'as soon as possible'. Somehow or other, it never became possible, the Council never followed up, and they're still there.

[Squash64]

Robert, at a recent self-management meeting with council officials, we were told that the rule had been changed and that bee-keeping would be allowed on allotments in future.

[Unwashed]

How it would work for your bees is this:  say the council decided that it wanted to enforce a no-bees clause in your allotment tenancy agreement.  The council would write to you and tell you to remove your bees because of the no-bees clause, and you'd write back and say that because of the council's previous tacit agreement that you could keep your bees that clause doesn't apply to you.  The only think left would be for the council to try and evict you for breaching the no-bee clause, and when they apply to the court for a possession order you'd tell the judge about their previous tacit permission for you to keep bees and the judge would (probably - it's still something of a lottery) not grant the posession order.

In short, the council probably won't concede that keeping bees is allowed, but ultimately it's not them that decides.  However, while the council believe that they can enforce the clause they might get quite stroppy with you and send several annoying letters and make threats about eviction, etc.  And like I say, going to court is always a bit of a lottery.

Whether the council's tacit agreement about your bees applies to anyone else on any other site is a separate issue.  I suspect that the council's no-bee clause would still be enforceable against other tenants who started to keep bees.

All that assumes there is actually a no-bee clause.  Sometimes councils believe they have the right to tell allotmenteers what to do just because they're the council.  Not so.  If there isn't a no-bee clause (probably as a no animals except rabbits and hens clause) then they can't tell you what to do anyway.

[Unwashed]

The rules on the Birmingham City Council web site say beehives are not allowed, but the rules are dated 1994.