Topic: constitution, license agreement & terms & conditions

[marcitos]

Hi

I've a few questions about the legal docs. we have on our site

Constitution - if an AGM requires a certain number of participants in order to vote on items on the agenda & there is not the right quorum attending are the items voted on & passed therefore null & void?

license agreement - This is our contract with the LA. It states:

2.14 The Association shall be responsible for the complete day to day running of the Allotments & shall let the individual plots to members of the Tenant Association
&
2.15 The Association shall have authority & responsibility for the giving of notice to allotment holders for non-cultivation and/or non-payment of rent

So, does the Association only have the power to give notice for what is stated in 2.15 or can it give notice for other things or is that the responsibility of the LA?

Tenancy Agreement - linked to question above. If the Association's Terms & Condits. state they can give notice for other things than 2.15, can they do so?

Look forward to some feedback & opinion

Marcitos

[Unwashed]

My thoughts, which may or may not be right:

The landlord is the council and the Association only has authority to issue notices because the council has formally delegated it that authority.  Notices given by the Association for non-cultivation and non-payment of rent can be enforced because the Association has the delegated authority to give those notices, but not for anything else unless that's covered separately by another clause of the management agreement.

It's a dangerous thing for an Association to act beyond its powers because the Association will have to bear any costs of what they do, and it can also make it difficult for the council subsequently to enforce whatever it was the Association was trying to do.

Likewise, councils, and site associations with the delegated powers to make Rules, need to understand that they can only make Rules that the Allotments Act empowers them to make:

28. Rules as to letting allotments.
(1) Subject to the provisions of this Act, a borough, urban district, or parish council may make such rules as appear to be necessary or proper for regulating the letting of allotments under this Act, and for preventing any undue preference in the letting thereof, and generally for carrying the provisions of this Part of this Act into effect.
(2) Rules under this section may define the persons eligible to be tenants of allotments, the notices to be given for the letting thereof, the size of the allotments, the conditions under which they are to be cultivated, and the rent to be paid for them.

[Big Gee]

Hi

I've a few questions about the legal docs. we have on our site

Constitution - if an AGM requires a certain number of participants in order to vote on items on the agenda & there is not the right quorum attending are the items voted on & passed therefore null & void?

license agreement - This is our contract with the LA. It states:

2.14 The Association shall be responsible for the complete day to day running of the Allotments & shall let the individual plots to members of the Tenant Association
&
2.15 The Association shall have authority & responsibility for the giving of notice to allotment holders for non-cultivation and/or non-payment of rent

So, does the Association only have the power to give notice for what is stated in 2.15 or can it give notice for other things or is that the responsibility of the LA?

Tenancy Agreement - linked to question above. If the Association's Terms & Condits. state they can give notice for other things than 2.15, can they do so?

Look forward to some feedback & opinion

Marcitos

If it helps in any small way have a read of the information on this page, there may be a few pointers there for you:

http://aeronvale-allotments.org.uk/StartUpDocs/

If your site's land is licenced to you (whether from the council or any other land owner) then licencing is simply a legal document that allows you use of that land under the terms of the licence, which basically just indemnifies the user of the land from possible infringement and prosecution by the land owner under the provisions of any Trespass Acts.

The land owner is usually referred to as the Landlord Paramount and the licensee is usually referred to as the Landlod with a separate agreement (within the terms & conditions of the licence) between that body and it's individual members/  plot tenants.

[Unwashed]

Hi Big Gee, that's an impressively well put together web site.

I hope you don't mind me commenting, but there are two significant varieties of the "council owned, association managed" model, and I think there has been some conflation of the two. 

One variety is where the council uses its power under Section 29(1) of the Small Holdings and Allotments Act 1908 to appoint the association as its allotment manager.  The council is still the allotmenteer's landlord but the association does the actual letting and management, or as much of it as the council specifically devolves to the association in the management agreement.  The association doesn't own a lease on the site and it occupies the site under licence.

The other variety is where the council uses its power under Section 27(6) to lease the whole of the site to the association (either directly where the association is a body corporate, or in trust if it isn't).  The association is now the allotmenteer's landlord and it is relatively free to manage the service how it likes, though the terms of the association's lease of the site are likely to make a few stipulations.

The sample tenancy agreement is for this second situation.  I see you charge for it so I won't volunteer a critique, but it has a number of significant problems.  Just an example:

16.1  Agrees to conform to the following rules as part of his/ her agreement with The LANDLORD. Persistent and willful disregard or the flaunting of any of the following rules will, if proven, result in immediate termination of the Tenancy by The LANDLORD whose decision shall be final.

You can't terminate a tenancy immediately because a tenant has some statutory protection from forfeiture, and such an immediate termination would be unlawful and unenforceable.  The difficulty with getting this kind of thing wrong is that it makes the whole of the forfeiture clause inoperable, and without it you can't actually forfeit at all, not even with reasonable notice.  And it's flout, not flaunt. 

[Big Gee]

Hi Big Gee, that's an impressively well put together web site.

I hope you don't mind me commenting, but there are two significant varieties of the "council owned, association managed" model, and I think there has been some conflation of the two.  

One variety is where the council uses its power under Section 29(1) of the Small Holdings and Allotments Act 1908 to appoint the association as its allotment manager.  The council is still the allotmenteer's landlord but the association does the actual letting and management, or as much of it as the council specifically devolves to the association in the management agreement.  The association doesn't own a lease on the site and it occupies the site under licence.

The other variety is where the council uses its power under Section 27(6) to lease the whole of the site to the association (either directly where the association is a body corporate, or in trust if it isn't).  The association is now the allotmenteer's landlord and it is relatively free to manage the service how it likes, though the terms of the association's lease of the site are likely to make a few stipulations.

The sample tenancy agreement is for this second situation.  I see you charge for it so I won't volunteer a critique, but it has a number of significant problems.  Just an example: 

16.1  Agrees to conform to the following rules as part of his/ her agreement with The LANDLORD. Persistent and willful disregard or the flaunting of any of the following rules will, if proven, result in immediate termination of the Tenancy by The LANDLORD whose decision shall be final.

You can't terminate a tenancy immediately because a tenant has some statutory protection from forfeiture, and such an immediate termination would be unlawful and unenforceable.  The difficulty with getting this kind of thing wrong is that it makes the whole of the forfeiture clause inoperable, and without it you can't actually forfeit at all, not even with reasonable notice.  And it's flout, not flaunt.

Thank you very much indeed for that Unwashed. I certainly don't mind you commenting. To the contrary, I thoroughly appreciate any input that irons out any mistakes or problems that may have been overlooked in my efforts. Although the documentation I have provided has been vetted by a legal professional, there are possibly areas that need more application in the authoring process. Not all lawyers are allotment people, consequently to have someone cast their eye over this kind of documentation who has a good grounding in both subjects is something to be encouraged.

In fact if you are agreeable to the suggestion, I will send you a full copy of the specimen tenancy agreement for you to comment/ rectify any part that you feel needs revision.

My only interest in providing this documentation is to aid allotment groups to get their basic paperwork correctly put together. From my experience over the years, the one obvious weakness that is perpetually repeated s inadequate attention to things like constitutions and tenancy agreements at the time of an allotment group start-up. My efforts are purely geared to the betterment of the allotment movement.

I will personally message  you about this in due course.

Once again many thanks,

G.
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[Unwashed]

I couldn't agree more, I think your web site is an excellent contribution to the movement.  Of course my suggestions are just my unqualified opinion, but I'm more than happy to help if I can.  I'd prefer if we could do it openly though rather than via PM as I like to support A4A as a resource for the allotment movement and it's important that others get to comment and critique also.  Is that OK? 

[Big Gee]

I couldn't agree more, I think your web site is an excellent contribution to the movement.  Of course my suggestions are just my unqualified opinion, but I'm more than happy to help if I can.  I'd prefer if we could do it openly though rather than via PM as I like to support A4A as a resource for the allotment movement and it's important that others get to comment and critique also.  Is that OK?

Thank you for your kind words Unwashed.

It's a bit awkward to upload the documents I've prepared directly to the A4A forum. What I'll do is upload them to a directory on my server & I'll post a link on here for members to download them individually - they can then offer critiques and suggestions for amendments.

Quote: "Where there is no counsel, the people fall but in the multitude of counselors there is wisdom" (Proverbs 11:14). I'm not a big fan of organised religion but there's a lot to be said for many of the proverbs!