Author Topic: Written warning letter please help  (Read 27546 times)

grannyjanny

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Re: Written warning letter please help
« Reply #80 on: October 18, 2011, 19:44:54 »
A few years ago the manager on our site took 3 years to get rid of someone & he was really trying ;) ::).

Unwashed

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Re: Written warning letter please help
« Reply #81 on: October 18, 2011, 20:09:27 »
Simple answer is that the tenancy of your plot and the membership of your site association and two separate things.  Only they're not entirely separate.

On the one had there's the allotment tenancy, and the tenancy agreement will contain terms that say what you can and can't do, like you can't sunbathe naked, and you must paint your shed turquoise, and crucially it can contain a term that says you must be a member of the allotment association.  You're also right that as a consequence of the Allotments Act 1922 as ammended by the Allotments Act 1950 you can't be given less than 12 months notice to quit.  As it happens that's not important, what makes the difference is Section 146 Law of Property and the term of the agreement that deals with forfeiture.

Then on the other hand there's the membership of the allotment society, which is actually a contract for a service.  Your membership will also be subject to terms such like you can't be a member if you don't have an allotment, or that you can be expelled from membership with five days notice if you bring the association into disrepute.

There's not actually any incompatibility.  Say you insult the mayor infront of the television cameras at the opening of your new site toilet, that's probably enough to get you expelled from the association for bringing it into disrepute.  Five days later you're not an association member any more, and so you are now in breach of a term of your tenancy agreement - but you are still a tenant.  What the committee has to do now is forfeit your tenancy for breaching the term about being an association member - that's not a notice to quit.  The statutory procedure for forfeiture is that if you can't re-join the association then the committee can forfeit the tenancy immediately.

Forfeiture and Notice to Quit often get confused but they have absolutely nothing whatsoever to do with each other, except of course they both end the tenancy.

Forfeiture, which is governed by Section 146 Law of Property 1925, is where the tenancy is brought to an end because of some breach of a condition of tenancy.

Notice to Quit is a bit more subtle.  Technically a lease is called a a term of years absolute.  What that measn is that it actually runs for a definite fixed period.  Any fixed period actually, not just a year, it could be a day or a thousand years, but it must be a definite fixed period.  But it happens that when people want to lease land they don't always know how long they'll want it for, and so with a bit of legal smoke an mirrors the periodic tenancy was invented, and allotments are almost always let on an annual periodic tenancy.  With a periodic tenany the lease is still for a definite fixed period, like a year for an allotment, but rather than terminating at the end of the year another year's tenancy is automatically appended - glued to the previous one with some special legal glue so that looking back you can't see the join!  A Notice to Quit is the magic incantation that stops the periodic tenancy re-starting with a new period - and this is why when a Notice to Quit is served it must expire on either the last day of the period or what would be the first day of the next period, because it isn't actually bringing the tenancy to an end, it's just preventing it from starting up again automatically.  

A bit complicated I know, but I've seen tenancy agreements that talk about serving a 30 day Notice to Quit for breaking the rules, and it's complete rubbish because what they actually have to say is a Notice of Forfeiture, and because the rule purports to allow the tenancy to be ended with a 30 day Notice to Quit the allotments acts say that's void, and because there is no implied common law right to forfeit a tenancy the landlord is stuffed.

Oh, as always, this is all IMHO and it could be completely wrong.  Just saying.
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tony69

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Re: Written warning letter please help
« Reply #82 on: October 18, 2011, 21:16:50 »
yes its not good were not setting out to be anything other than fair and wish to give people the time to sort things, i just want to make sure if we are really up against a fence we have a way out.

thanks tony

Unwashed

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Re: Written warning letter please help
« Reply #83 on: October 18, 2011, 22:37:04 »
Just separate the two things and don't make membership of the association a condition of tenancy.

You don't need to be a member organisation, you collect the rents so you don't need separate subs, and if allotmenteers don't want a say in the site management they don't need to join.  In practice I can't see why you'd want to expell someone from association membership, because if they've done something serious enough they'll be losing their tenancy anyways.

Of course it all a bit different for mutuals who own their own site.
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djbrenton

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Re: Written warning letter please help
« Reply #84 on: October 20, 2011, 18:47:00 »
I went and met up with Des and Tim today at their site to see what the situation is.

The relevant facts are

1 The site is let by the council on a yearly renewing tenancy ( date not yet known) to the named Trustees, which expression shall where the context so admits include the Trustees in whom for the time being the tenancy created by this Agreement is vested and are collectively known as the Allotment Association.

2 The Trustees agree to sub-let the land to persons who shall be members of said Allotment Assiciation.

3 It is further agreed that all disputes between the Trustees and his Sub-Tenants shall be settled by the Trustees unless such disputes involve breaches of any of the stipulations herein contained.


With only one living trustee, what would the position be if the members of the Association held a meeting and removed the Trustee from that position and appointed new trustees. As the tenancy is only vested in the named trustee on behalf of the Association would the tenancy be void?

I find it amazing that the council lets to individuals on behalf of associations but then vests the power in those individuals rather than the association.

Unwashed

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Re: Written warning letter please help
« Reply #85 on: October 20, 2011, 19:21:00 »
To be honest it's more that I understand.  I think the guys would be well advised to spend £500 and get some advice from a solicitor about how a lease for land is owned in trust, and particularly some advice on what those words mean in their tenancy.

How I understand it is this:  The lease has to be owned by private individuals because the association is not a body corporate, and so the council lets the site to named individuals on the condition that these individuals let it for allotments.  It's actually that stipulation that creates the trust, because the lease is owned in trust for the people of the town who might want to have an allotment.

The bit about "for the time being" also says that the Trustees aren't necessarily the individuals named on the lease, but are actually whoever happens to be the trustees at any particular time.

There's lots of precedent to deal with the situation when trustees disappear, even when all the trustees disappear, so just because the trustees have all gone certainly doesn't void the tenancy, though whether anyone can just come along in good faith and take on the role I couldn't say.

My concern for Des and Tony is that it's just about possible that as officers of the association they could assume the responsibility of trustees without any trouble, but it's also just about possible that technically they could be committing fraud if the law didn't recognise them as trustees and they effectively sublet plots which weren't theirs to let.

I don't see anything wrong with the lease as such, the problem as I see it is that the lease needs to say how new officers of the association automatically become new trustees, and how retiring officers of the association stop being trustees.  It's actually possible that the words of the lease do indeed allow just that very thing, and that's why I suggest they pay for some decent proper legal advice.

What I've suggested to the guys is that they get the Council to terminate the existing lease and then give them a new one.  The old one needs to be terminated because I believe the existing trustee is still the only actual trustee and it's not obvious to me how his ownership of the lease can be assigned to both Des and Tony.

If the Council wanted to help they could exercise their right of re-entry to terminate the lease weed nuisance after 30 days notice (you're going to be able to find at elast one weed somewhere on site, right?).
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