Allotments 4 All
Allotment Stuff => Allotment Movement => Topic started by: 55david on January 26, 2013, 11:30:57
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Can anyone please tell me what is the legal procedure a town council must follow in order to evict someone from their allotment?
I am of the understanding that they must first go to court to get a Possession Order
Is this correct or can they just appoint a bailiff to evict you without going to court?
I do not owe any money to the council, my rent is paid in advance up to 31/03/13
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Good god, no! If they had to go through all that no one would ever be evicted and plots would be in a terrible state. Here in Liverpool the council simply send a plotholder an eviction notice,that's it. They then have the right to appeal. Hope this helps.
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State your case and put a bit more meat on the bone. :wave:
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Hi David
I'm really sorry you're being victimised by your council (I read your previous post). To answer your question: No, a council can't appoint a bailiff, bailiffs are appointed by the court to enforce a possession order.
However, that's not really the important question. Bad news is that as you live outside the parish boundary then the council doesn't actually have the power to let you an allotment in the first place and should by rights have terminated your tenancy when you moved. It's possibe that your council have not got the process right, but it will cost you a lot of stress and money to try and defend your position and to be honest it's hard to stand up to the gestapo tactics of a town council, and even if you succeed the council will eventually get the process right and get you off. It shouldn't have come to this, but town councils are run by small-minded tyrants, so as I see it your only option is to quit and move on.
For info, the significant legislation is Section 23 Small Holdings and Allotments Act 1908, this bit in particular: "the council shall provide a sufficient number of allotments, and shall let such allotments to persons resident in the borough, district, or parish, and desiring to take the same." A council, as a statutory body, can legally only do what it's empowered to do by legislation, and the only power a council has to let allotments comes from this section, and the duty on a parish council is limited to letting allotments to residents of that parish only. Sorry.
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Thanks for the confirmation Unwashed
The council sent a certified bailiff to my house on Thurs last, he handed my carer/partner a Notice to Quit, giving me 7 days in which to deliver to him possession of my allotment plot
It also states that he has the power under Part V (of what it does not say) to remove any person(s), vehicles or livestock that are on the land
And:
If on the above date any occupants are still on the site they will be evicted
This to me and everyone who's read it, seems like an eviction notice for gypsies/travellers
The bailiff also said he'd been doing the job 10 years and this was his 1st allotment eviction- my carer/partner said that he could not evict us without a possession order from the court - he said he's going back to the council & will ring her the next day - up to now he has not contacted us
With regards to living outside the town boundary, the present rules state that applicants for allotments must be resident in the town at the time of application - I was. I also contacted the legal adviser at NSALG who said unless it explicitly states in the rules if someone moves out of the area they have to give up their allotment, then the council cannot use the Small Holdings & Allotments Act 1908 section 30, paragraph 2 to evict me
I was forced to move from the town to approx 3 miles from the actual allotments through constant unbearable anti social behaviour
The council (mayor actually) said to my carer/partner that under the circumstances & due to my mental health being greatly improved from tending my allotment I could keep the allotment as long as I wanted - he has kept his mouth tightly shut on this matter, not surprising
The council have happily taken my yearly rent twice since then, it is only because we have questioned their so-called rules & stood up for my rights that I am being evicted - they see us as someone who'll cause trouble for them and are willing to stoop to any level in order to get rid
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If a council landlord is relying on the statutory power of Section 30 of the Small Holdings and Allotments Act 1908 to terminate an allotment tenancy because the tenant is living more than a mile outside the parish boundary I think it's worth reminding the council that Section 30 applies to allotments in general, and that Section 1 of the Allotments Act 1922 (as ammended by Section 1 of the Allotments Act 1950) restricts the ways in which a landlord can terminate the tenancy of an allotment garden, where an allotment garden is defined by Section 22 (1) as "The expression “allotment garden” means an allotment not exceeding forty poles in extent which is wholly or mainly cultivated by the occupier for the production of vegetable or fruit crops for consumption by himself or his family;". So as long as the allotment is not bigger than 40 poles and is being used mainly to grow fruit and veg and isn't being used to grow commercially then Section 1 of the Allotment Act 1922 protects the tenancy from being terminated by a 30 day notice under Section 30 of the Small Holdings and Allotments Act 1908, and if the landlord wants to terminate the tenancy they must do so with a Notice to Quit of not less that 12 months expiring on the anniversary of the tenancy in accordance with Section 1 of the Allotments Act 1922 as ammended by Section 1 of the Allotments Act 1950.
Note: As always, this is just my view, and I'm not a solicitor, just a bloke with an allotment and access to Google. I hope it might inform your research, but remember I could be completely wrong. Best of luck.
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55david, that’s terrible I really feel for you. Bloody councillors why cant they show some compassion or common sense. As for the mayor telling you you were OK I don’t trust any of them and any dealings we have with the council we ask for it to be confirmed in writing. I just hope somehow you manage to keep what’s yours, would it be any good contacting your MP?
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I don't want to appear to be rude but you told your full story on another forum which alters the facts somewhat.
I think the issue of your oversized shed is quite important.
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If the issue of the shed size was was so important then why have the council not evicted me on breaking this rule?
Because it just does not exist!
We are being victimised due to us having the audacity to question them
We received another letter from the council today confirming they've issued us with 'a common law Notice to Evict' - if we're not off the plot and taken down the shed by this Thurs 31st Jan 'a court writ will be put in place for bailiffs to take down the shed & remove the chattels'
My partner/carer spoke to the bailiff earlier today who said he's been told by the council to remove our stuff on Thurs if it's still there
We're waiting for advise from the NSALG on what to do now & are contacting our local MP, who did write to the town council last year who suggested they have a meeting with all the allotment holders - as usual it was ignored
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If the issue of the shed size was was so important then why have the council not evicted me on breaking this rule?
Because it just does not exist!
Exactly. Councils see themselves as fudal overlords, but they're not, they're small businesses in the service sector, and they need to learn some customer care skill and stop treating people like serfs.
Anyhoo, this isn't about the shed now, it's about a tenant's right not to be victimised. You have my support David.
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Thanks Unwashed for all your sound advice & suggestions
Will keep everyone updated on how things are going - watch this space!
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Doesn't make sense to me, The council being your landlard for some reason want you gone and as soon as possible.
As Unwashed says they should issue you with one years notice to quit stating that your lease will not be renewed on or no later than a date specified under whatever act and you have 21 days to appeal in writing.
They do not need to give you any reason.
Then all they have to do is wait at no extra cost till your rent is due. If you do not leave then a solicitors letter is sent to you informing you that an eviction notice will be sought and should the decision go against you court costs will be asked for from you
Then the next step would be to apply for the eviction order.
Now either the council has not consulted a solicitor, not done their home work regarding the allotments act or waisting money in trying to get you off in a hurry
by bluff and lack of knowledge.
Ask where your One Years Notice to Quit is quoting the Allotments Act and see what responce you get. But then you are informing them how to do it properly so you are swapping deckchairs on the Titanic
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Received some encouraging news today from the CAB, they believe the eviction is illegal and are looking into it further
We've also got our MP involved, who's emailed the council requesting they show discretion, as they have done for the past 2 years (since moving) in allowing us to continue to rent the allotment :happy7:
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That's all good David, keep the faith!
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Just discovered that the Part V of the bailiff's notice to quit refers to the criminal justice & public order act 1994 chapter 33 part v
The council are attempting to evict us because we're trespassing!
Don't see how they can do this as the way I read the first subsection, there has to be 2 or more people who intend to occupy the land and all subsections afterwards rely on subsection 1 applying
Am I correct in this assumption or can anyone please explain how the council can apply this?
Many thanks
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There's nothing I can offer you except my support David.
Best of luck chap.
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Thank you NigelB, it is very much appreciated
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I Have only had a brief look at the act but reading one one part if your rent is paid up untill a date in the future then you have an exclusion as the land is leased to you and you cant be evicted under this act.
Not having a rave are you
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LOL! bit too old for that
Spoken to the bailifs office & the town clerk, no-one seems to know/won't say what the reason for the eviction is now, with one saying to ring the other & vice versa - going round in circles here - can they evict me for that?! LOL!
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Not having a rave are you
:)
The Town Council are behaving disgracefully. Section 61 of the CJ&PO Act is for evicting gypsies. It's a necessary condition of eviction under Sectin 61 that there's at least two of you, and that you either intend to live on the allotment, or that you've damaged it or been abusive to the landowner - but of course you need to be a trespasser and you're not - the council purported to terminate your tenancy using Section 30 of the Small Holdings and Allotments Act 1908, but Section 1 of the Allotments Act 1922 disapplies Section 30 for allotment garden tenancies.
As far as I can tell Section 61 of the CJ&PO Act empowers the police to evict, it doesn't create any new civil power so I can't see how the council think they're going to use it. They could call the police of course, but you just need to show the constable your tenancy agreement and the police will walk away - tenancy disputes and even simple trespass are civil matters and the police won't want to get involved and have no power to in any case. Of course if the council's behaviour is likely to cause a breach of the peace the the police have a duty to get involved and they'll likely tell the police to wind their neck in and apply to the court for an eviction order.
I don't want to be anything less than supportive, but I'll just mention again: I might be wrong about Section 30 not being effective, it is possible that your tenancy has been terminated and that you are a trespasser. I can't see how the police would be willing to invoke Section 61 of the CJ&PO Act if you're just going about your allotmenteering peacefully, but I suppose they just might. You need to satisfy yourself that the Section 30 notice of termination is defective because it all turns on that.
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I'd be interested to hear what others think.
This is the significant bit of Section 30(2) of the Small Holdings and Allotments Act 1908 and is the statutory provision the coucil used to terminate the tenancy.
... if it appears to the council that the tenant of an allotment ... is resident more than one mile out of the ... parish for which the allotments are provided, the council may serve upon the tenant ... a written notice determining the tenancy at the expiration of one month ...
So a council terminate the tenancy of an allotment with one month's notice if the tenant lives more than a mile outside the parish.
But this is what Section 1(1) of the Allotments Act 1922 say (and subsequent acts always trump previous act by the princilple of implied repeal):
Where land is let on a tenancy for use by the tenant as an allotment garden ... the tenancy of the land ... shall not (except as hereinafter provided) be terminable by the landlord by notice to quit or re-entry, notwithstanding any agreement to the contrary, except by—
(a)a six months’ or longer notice to quit expiring on or before the sixth day of April or on or after the twenty-ninth day of September in any year; or ...
This seems pretty clear to me that the 1908 Act allows a one-month notice to quit for allotments, but that the 1922 Act extends the minimum notice for allotment gardens to 6 months (which was extended to 12 months by the 1950 Act).
I'm pretty sure that the council has simply got it wrong and that the one-month notice to quit they served is defective, which means you're still their tenant and can't be a trespasser. But that's just my opinion.
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We're trying to get as many people there tomorrow as possible, the town clerk said they don't want lots of people there and want to keep it a low key and quiet affair - I wonder why that is!
Had advice from NSALG and CAB and if the bailiff doesn't have the proper legal papers then we can have the eviction stopped on the grounds of the council breaching the agreement - in theory that is - if the police do their job properly then we're OK
We know the bailiff won't have a possession order, nor authorisation to remove our property but if the police have been misled over what rights we have (a cllr has connections with the police) then we may end up being arrested
All the advice we've had from every source we can think of have all said that this eviction is illegal, though with no possession order from the court, there is no one & nowhere to appeal to
Still, we're not giving up (that should read my partner/carer Donna is not giving up - I'm really struggling to cope with all this, it's making me extremely sick with worry)
Donna's done everything on my behalf throughout all this and without her I'd have given up long ago
Will post the outcome tomorrow, unless Donna's been arrested!
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All the best tommorrow. :coffee2:
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I am sorry to say that once they have decided to get rid of you it is only a matter of time. Looks like they might have to give you a year but that will be it.
The police will not want to get involved with a contractual matter.
Can you apply for an allotment in your new area?
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Donna here, David's carer/partner
Didn't get arrested, was threatened with it though
Bailiff, farmer with tractor and police arrived and I was shown a piece of paper by the bailiff which said something about being evicted under common law as trespassers under the Criminal Justice and Public Order Act 1994, Part V
Despite my insistence that this was an illegal eviction, we're tenants and are until the 31/03/13 so are NOT trespassing, the police chose to believe the bailiff's word over mine and they were not interested in seeing proof of our tenancy, nor reading my print out of Part V of the above Act, which does not apply to us in any way, shape or form
The shed was dismantled and put on a trailer at the back of the tractor along with the rest of the boarding for completing the shed and some greenhouse windows and taken away
I had to make my own list of things which were taken as the farmer said the town clerk would be at the other end to make the list - I asserted my right in insisting a list was made & the farmer signed it - I also had the whole operation filmed as evidence
Good thing too, a letter from the council received this morning listing our property is incomplete - several items are missing. They have given us 28 days to collect our property otherwise they'll dispose of it
I now intend to complain to all bodies involved in this ridiculous, petty, pathetic farce and take legal action if the council do not return our property and put it back as it was
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I think if your going to take legal action this tread now be locked so as not to jepordise your case.
Good Luck
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There is nothing common law about the Criminal Justice and Public Order Act 1994, Part V it is an act of parliament.
Just read the act, I think we all need to worry if a local authority is preparted to invokes this act in this way.
Did you have a rave on your lottie? :toothy10:
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There is nothing common law about the Criminal Justice and Public Order Act 1994, Part V it is an act of parliament.
Just read the act, I think we all need to worry if a local authority is preparted to invokes this act in this way.
Did you have a rave on your lottie? :toothy10:
I think we do all have reason to worry. It's troubling that town councils will behave like jack-boot tyrants, and it's a worry that individual tenants just don't have the wherewithall to oppose it.
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Received some encouraging news today from the CAB, they believe the eviction is illegal and are looking into it further
We've also got our MP involved, who's emailed the council requesting they show discretion, as they have done for the past 2 years (since moving) in allowing us to continue to rent the allotment :happy7:
interesting your case Im on the end of a Eviction Notice served by our Committee in my case i have been on my plot 45 years a few years back it won the best kept plot from the council My Eviction has been a Fast Track saying 75% has tobe cultivated its a joke and 80% of the members agree our present Committee are dictators every rule we have and the Council Guide Lines on Eviction have been bypassed I have my MP on the case it looks as if we will have to call an EGM to remove the committee interesting you mention CAB who are them ? pitty im not able to publish a couple of pics of our Sec Garden (Double Standards)
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Received some encouraging news today from the CAB, they believe the eviction is illegal and are looking into it further
We've also got our MP involved, who's emailed the council requesting they show discretion, as they have done for the past 2 years (since moving) in allowing us to continue to rent the allotment :happy7:
interesting your case Im on the end of a Eviction Notice served by our Committee in my case i have been on my plot 45 years a few years back it won the best kept plot from the council My Eviction has been a Fast Track saying 75% has tobe cultivated its a joke and 80% of the members agree our present Committee are dictators every rule we have and the Council Guide Lines on Eviction have been bypassed I have my MP on the case it looks as if we will have to call an EGM to remove the committee interesting you mention CAB who are them ? pitty im not able to publish a couple of pics of our Sec Garden (Double Standards)
try this link pics 1-2-4-6-8 shocking- http://allotment-mess.blogspot.co.uk/
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Received some encouraging news today from the CAB, they believe the eviction is illegal and are looking into it further
We've also got our MP involved, who's emailed the council requesting they show discretion, as they have done for the past 2 years (since moving) in allowing us to continue to rent the allotment :happy7:
interesting your case Im on the end of a Eviction Notice served by our Committee in my case i have been on my plot 45 years a few years back it won the best kept plot from the council My Eviction has been a Fast Track saying 75% has tobe cultivated its a joke and 80% of the members agree our present Committee are dictators every rule we have and the Council Guide Lines on Eviction have been bypassed I have my MP on the case it looks as if we will have to call an EGM to remove the committee interesting you mention CAB who are them ? pitty im not able to publish a couple of pics of our Sec Garden (Double Standards)
Hello vidcare, welcome to Allotments4All.
I've created a thread for you so you can get some help with this. follow this link (http://www.allotments4all.co.uk/smf/index.php/topic,75059.0.html).