Topic: rules and constitution

[tony69]

hi there folks

you may well have read in my other posts we have now taken over our lotty as a new committee and i was just wondering what you all have in the way of rules and constitution.

ours are going out the window as they are more about a god like committee not the poor plot holders so we are starting again with new realistic rules etc.

thanks tony

[pumkinlover]

If you join NSALG they will have draft copies of both you can adapt to your site.

[tonybloke]

if you pm me your email addy, I'll sent you copies of our associations documents.
Tony, gen sec GY&GAALtd

[tony69]

hi mate tried to send you email but your inbox is full

thanks tony

[Sparkly]

You can read ours on our website: http://www.granvilleparkallotments.org.uk/about-us/uags.html

[tonybloke]

hi mate tried to send you email but your inbox is full

thanks tony

oops! sorted now

[tony69]

just to say thanks

ive read and pinched bits from your rules etc and they will be mixed in with our own suggestions.
we are going to let the plotholders look over them and a quick vote to make sure they they are happy agree.

thanks again

tony

[Unwashed]

Can I mention some stuff about rules:

An allotmenteer's tenancy agreement is a contract, and for the Rules to apply the Rules either need to be included in the tenancy agreement, or there needs to be a term of the agreement that incorporates the separate Rules.

If you can't prove that you gave a prospective tenant a copy of the Rules before they signed the tenancy agreement then you might well have a job getting a court to agree that the Rules apply - it's a consequence of the Unfair Terms in Consumer Contracts Regulations 1999 which in fairly broad terms prevents businesses from taking advantage of the consumer.

It's pretty common for a tenancy agreement to have a clause that allows the landlord to change the Rules, but unless the clause says that the landlord has to give at least a growing season's notice before the new Rules apply then the UTCCR 1999 says the term is unfair and any new Rules will be unenforceable.

Same with terms that say the landlord can increase the rent.  Unless the rent increases with some formular linked to external indices (like it increases with CPI, say) then the term must require the landlord to give at least a growing season's notice of any increase so that the tenant can quit in good order without having to pay the new rent.

Another consequence of UTCCR 1999 is that the tenancy agreement has to be written in plain English that the average allotmenteer can understand.  So if your agreement talks about re-entry, distraint, forfeiture, determination, or any other legal language that isn't generally understood, and if it incorporates legislation by reference, such as "in compliance with the Allotments Acts 1922" then those terms are likely unfair too because UTCCR 1999 doesn't expect consumers to be legal experts, it expects suppliers to write contracts that their consumers can actually understand.

Rules have to be drafted carefully so that they only go as far as they need.  So for example, a term that says "the gate shall be locked at all times" is arguably unenforceable as it doesn't even allow you to unlock it so that you can come in and out!  The landlord might know what they mean, but it's the words of the tenancy agreement that count.

Another example is the rule that says tenant must abide by any notices posted by the committee - but that rule allows the committee to say "no walking on the cracks in the pavement", so because the rule goes further than is reasonable the whole rule is unenforceable.

Tenants have certain inalienable rights, such as the right of access, the right to quiet enjoyment, and the right to exclusive possession, and these can't be taken away with a rule, so rules that purport to allow the committee to walk around you plot and look in your shed are void.

And then you also have some statutory rights, such as the right to receive not less than 12 months notice to quit, the right to pay quarterly, and the right to keep hens and rabbits, and any rule that says otherwise is void.

[Unwashed]

I hope Sparkly doesn mind, but a few examples from their Rules:

19. NOTICE
The Society, or the tenant may, at any time, determine the tenancy by 3 calendar months written notice expiring on the 30th September in any year.

Section 1 of the Allotments Act 1922 as ammended by Section 10 of the Allotments Act 1950 gives the tenant of an allotment garden a statutory minimum of 12 months notice and so this Rule is void.

21. DETERMINATION OF THE SOCIETY’S TENANCY
The Society may determine the tenancy of any allotment without notice if it shall at any time without previous notice by a superior landlord to give up possession of the land (or any part thereof) of which such allotment forms a part.

The same section of the Allotments Act gives the society the right to 12 months notice too.

22. DETERMINATION OF THE TENANCIES BY THE SOCIETY
The Society shall have the right immediately to re-enter and take possession of the allotment and to terminate the tenancy of any tenant who does not keep the allotment cultivated to the satisfaction of The Committee, or on breach of any of the tenants agreements, and to re-let the allotment.

You can't contract out of Section 146 Law of Property 1925 which insists that the tenant be given a reasonable time to put right a cultivation issue.  Having gone further than statute allows this Rule is unenforceable, and as there is no implied right of re-entry the society actually has no way of enforcing its rules other than 12 months notice to quit.

[tony69]

The rules and constitution seem to be a minefield

ive put my next question in the wrong thread so please see my written warning thread

sorry im getting old  :D :D

[Mr Smith]

On our allotments our council don't abide by their own rules and constitution, we have several allotment holders that don't grow anything each year, consequently we have a problem with overgrown allotments, we also have a couple of allotments that are now vacant but the council have not re let them, if you are late with paying your rent you get a snotty letter(but not in my case). what have I done, I have sent several emails about my concerns to the 'Street Scene department' that they are not abiding by their own set of rules, with no replies, I have now contacted the councillor responsible for the allotments in that ward, the councillor emailed me and said she is looking in to the issue and will contact me when she gets some answers, I'm waiting two weeks later, :)

[rocky]

hi tony,

i know the frustration of swimming against the tide!! as new committee trying to set up a right and fair set of rules etc.

anyone who has advice for either of us would be most valued, we need to get there for everyones sake and our own sanity!!

[Sparkly]

I hope Sparkly doesn mind, but a few examples from their Rules:

19. NOTICE
The Society, or the tenant may, at any time, determine the tenancy by 3 calendar months written notice expiring on the 30th September in any year.

Section 1 of the Allotments Act 1922 as ammended by Section 10 of the Allotments Act 1950 gives the tenant of an allotment garden a statutory minimum of 12 months notice and so this Rule is void.

21. DETERMINATION OF THE SOCIETY’S TENANCY
The Society may determine the tenancy of any allotment without notice if it shall at any time without previous notice by a superior landlord to give up possession of the land (or any part thereof) of which such allotment forms a part.

The same section of the Allotments Act gives the society the right to 12 months notice too.

22. DETERMINATION OF THE TENANCIES BY THE SOCIETY
The Society shall have the right immediately to re-enter and take possession of the allotment and to terminate the tenancy of any tenant who does not keep the allotment cultivated to the satisfaction of The Committee, or on breach of any of the tenants agreements, and to re-let the allotment.

You can't contract out of Section 146 Law of Property 1925 which insists that the tenant be given a reasonable time to put right a cultivation issue.  Having gone further than statute allows this Rule is unenforceable, and as there is no implied right of re-entry the society actually has no way of enforcing its rules other than 12 months notice to quit.

Thanks Unwashed. I am aware of this  :). Not my rules, they are the societies which we are a subgroup. Just like many sets of rules a lot is said that is really unenforceable!

A question you may be able to answer though: If land is let from the council by the society who then sub-let out to individual tenants, does a tenant have to be a member of our society to keep the tenancy? For example, if a membership was cancelled (due to e.g non cultivation or other issues) would the 12 months still stand legally? As I believe an individual must be a member of the society in order to take a tenancy and be covered by our insurance etc.

[Unwashed]

Hi Sparkly, I think I just answered that one in this thread.

If the tenancy agreement says the tenant must be a member of such-and-such association then I would say if the tenant looses the association membership they will be in breach of their tenancy agreement and as it's not a breach capable of remedy their tenancy can probably be forfeited - though it depends what the agreement says about forfeiture and whether it applies to the membership term.  It's quite possible to draft an agreement badly enough that its terms can't actually be enforced.

Be a little cautious though.  Just because there's a term in an agreement it doesn't means it's fair, and if the association membership term exposes the tenant to losing their allotment on the whim of the association then that's likely unfair with the meaning of the Unfair Terms in Consumer Contracts Regulations 1999.

There's also a potential Human Rights issue for Council sites in that Article 11 says you have the right not to join associations, and it's just about possible that precludes this kind of arrangement - though if the Council didn't agree you'd have no practical way of enforceing the right even if it was true.

[tony69]

do you have a copy of this line in your rules unwashed

[Unwashed]

do you have a copy of this line in your rules unwashed

Sorry, which line?

[tony69]

sorry mate the line that deals with giving notice evictions etc

thanks tony