Allotments 4 All
Allotment Stuff => Allotment Movement => Topic started by: Cruz on February 06, 2010, 22:32:40
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We are a 120-plot self-managed allotment that is owned by the local borough council. Whenver a new member signs up for a plot, the Association has to send their contact details to the council, which then sends them a tenancy agreement. We have only been in existence for about two years. Unfortunately, the most senior committee member continues to urge members not to sign the agreements, leaving around 50 signed up and 10 not.
The council is aware of the situation, but has so far not yet insisted that the remaining agreements are signed. This is causing a lot of bad feeling among the membership that has signed up.
We are aware that these people are not covered under third party liability insurance, since, effectively, they are on the site illegally. They have paid membership subs and are therefore members of our association, so we are sort of legitimising their illegal actions.
Can anybody suggest a way of dealing with these issues and put forward opinions as to possible liability issues in case of a third party legal action?
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Evict them... :-X
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Do they know that they are not covered by third party liability insurance and what the consequences could be? Then suggest that they pay for their own insurance.
We have associate members of our Allotment Society - I presume that they must pay a nominal amount - but it only allows them to buy from the lottie shop where a lot of seeds/potatoes etc are cheaper than in the shops. I would suggest that as they are only paying subs, but not the tenancy agreement, they are only associate members and would not be entitled to any council help ie skips, repairing damage to fences etc
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why are the senior comm members urging them not to sign?
and they cant be evicted if they havnt signed a tenancy,as they are not tenants,surely,what a tricky situation!
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The cited reasons for not signing the tenancy agreements are not the real ones. There is an underlying hate of the council for them having the right to tell members what and what they cannot do with plots. Yes, I know, the council has the right to do this, but they claim that being self-managed means they don't. It's like talking to children...
They are aware of the insurance situation but don't seem to care.
By the way, you can't take out individual insurance in this case. Since they are on the plot illegally, you can't insure against illegality!! What worries me is that in any insurance case, the association might be found liable, since we are legitamising their presence by taking their subs.
I like the associate member idea, though.
Only the council would have the right to evict, since they own the site. We only manage it. The tenancy agreements come from the council.
Has nobody else out there been through this mad situation?
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Is the council allowed to change the locks ? and only issue keys to 'legitimate' plot holders.
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It's a very strange situation.
We are also council owned and self-managed but have never had this sort of problem. When a new tenant takes on a plot I just tell them we are filling in a tenancy agreement and they sign on the dotted line.
Are the other committee members in agreement with the views of the senior member? It's strange that your council are aware of it but don't do anything. What happened to the rent the 10 people paid, did the council accept it?
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Are you affiliated to NSALG? If so, give them a ring. (If not, I suggest you join.) And get in touch with your council's allotments officer.
We're an independent site - if you don't sign, you don't get a plot.
Read in conjunction with your other post, it looks as if you have problems with your Committee.
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it sounds as if your council / association interface is having problems!! signing a tenancy agreement should happen at the same time as rent is paid!
You could resolve this easily with a little 'tweaking' of the wording on the reciept you issue when taking payment. It should be worded something along the lines of, " I hereby agree to all terms and conditions of the associations / councils tenancy document"
* simples *
;)
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I do not know about Tenancy agreements but with employment if you do not sign the contract but start the job and get paid you accept the contract by your actions. I would think that if they pay for and start work on their allotment they also accept the conditions.
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I was just about to write the same thing as Digeroo
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well, 3 in agreement in a row!!! ;)
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The situation at our plot is extremely difficult.
We pay the council nothing for the site and they, in return, give us absolutely nothing. In recent years, all the senior people at the allotment department left and those that replaced them only look after allotments as a sideline.
The council issues tenancy agreements as a matter of course and, when questioned, has noted that failure to sign could result in eviction.
The illegal tenants actually pay the allotment association their subs and we control what happens to these. So, they are bizarrely our members without having the legal right to do so. But I was interested to read the comments of those who suggested that by starting work on their plots they have, by default, signed those agreements!
I have asked these questions of the national association, but this is unheard of territory!
I am therefore curious to gather suggestions from as far and wide as possible.
Thanks for your continuing input.
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How about a big sign on the gate along the lines of
"All ye who enter here and doeth work by spade, fork or hand ...
... hereby agree to all terms and conditions of the associations / councils tenancy document"
* simples *
;)
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Thinking through the logic, if somebody declines to sign an agreement, but because they begin to work their plot are effectively agreeing to abide by its rules, doesn't that give them all the advantages of not signing and none of the disadvantages?
There have to be disbenefits or nobody would bother to sign!
Do they have security of tenure, for example? The allotment acts make it impossible to evict a tenant in under 12 months if the land is reassigned for other purposes and also gives the right of compensation to tenants. How would the motley crew stand in these circumstances?
JC
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Has rent for the illegally occupied plots been accepted? If so, a tenancy exists in law, and the conditions can presumably be enforced. If not, they're completely illegal, and need to be sent suitable letters from the Council legal department, offering them the choice between regularising the situation and leaving. The Council is presumably the landlord, therefore they are the ones who have to act.
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Several things.
1. Why are the committee members telling new tenants not to sign their tenancy agreements?
2. None of what you describe is illegal.
3. I'm not sure what you're saying about insurance. Can you explain whos policy and liability you're talking about.
4. Property law looks a bit like contract law, but it ain't. If a tenant hasn't signed a tenancy agreement there are a few possibilities, all of them complicated. One possibility is that no tenancy exists and the tenant is just trespassing, but if the council are awarre of the situation the next possibility is that the tenant is a tenant at will which gives her very little security of tenure, if the council have taken rent, particularly if they've taken rent at the same time of year for two years, is that a common law periodic tenancy exists, and another possibility is that an equitable rather than legal lease exists.
All very awkward, but how does that affect the association?
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I have to be careful what I say on an open forum.
The committee member that does the meeting and greeting and allocating of plots is trying to stop "development" of the site, contrary to the 1908 Act. A series of tenancy agreements were originally issued to members, but these contained the wrong plot numbers. A year later, therefore, they had to be re-done and this is when the particular committee member persuaded a group of plot holders sympathetic towards the non-"development" of the site to refuse to sign. The reasons they give are spurious at best, but are aimed at trying to limit the power of the council to determine how the site will be developed in future.
The rent paid by plotholders goes directly to the allotment association; nothing is forwarded to the council, which in turn provides nothing other than the land. However, the association is obliged to register each plot holder with the council, which then sends out tenancy agreements for them to sign. In the meantime, the association allows the plot holder to start work on their plot. Ergo sum, the association is legitimising the right of somebody to work a plot, albeit the plot holder should have signed the agreement provided by the council.
The third party insurance policy provided via the national allotments association cannot cover those members who don't sign an agreement. This is because, in reality, only those members signing their tenancy agreements are legally allowed to work their plot. The council admits that those refusing to sign could be evicted by it. This hasn't happened. The insurance company explained that those members not signing, because they are illegally occupying plots, aren't covered. Why not? Because a basic tenant of insurance is that you cannot insure against an illegal act. If you start from that point, you are in wholly uncharted territory.
If the council doesn't evict them, should it be liable in the case of an insurance claim?
Would an injured party sue the illegal plot holder?
Would an injured party be able to sue the allotment association, committee and members for taking an annual subscription from that illegal plot holder? Because the tenancy agreements are imposed by the council -bypassing the association- we cannot evict members that don't sign for not signing. But what shoudl their status be vis-a-vis our association? That's the real crux of this matter. How can we protect ourselves? I have spoken to the insurance company, which points out a court would have to decide where liability lays. But it is extremely uncomfortable for everybody.
The rogue committee member has no assets and nothing to lose,...
So, if I scream "HELP!" you can understand why.
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i really feel for you cruz! so,if the council arent recieving any of the rent money,who is responsible for making sure all rent monies are put to the correct usage?
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The only comment I would add, (other than it all sounds a bit of a mess), is that by refusing to sign, this could also hinder any campain to stop development, that is, the council will just ignore any objections of any body who has not signed.
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1. None of what you describe is illegal.
2. Of course you can insure against illegal activity. If someone nicked my bicycle for example my household insurance would pay out.
3. The association is not the landlord, it's the landlord's agent, but as you're binding the landlord to an agreement it would be altogether better if the council let you issue tenancy agreements.
4. Occupier's Liability Act 1984 makes the tenant liable for accidents on their property that are due to their negligence. Whether or not a victim is on land legally or otherwise, the tenant of the land is liable, and they can insure against that liability. Please explain carefully what this insurance is that you're worried about.
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Is the allotment a statutory site because it can give a degree of protection if the Council wants to develop it - they have to go through the Sec of State and certain conditions should be met prior to the allotment being taken over for development.
Another thought - just because the Council is a bit vague at the moment it does't mean it will stay that way - if they need/want land they will look at everything.
We had the council eyeing up our site, even though it is a statutory site. The proposal was hidden at the very bottom of a long and detailed education document - and they didn't have the curtesy to mention it to the Association either. It was only because an eagle eyed allontmenteer reads every council doc that comes on the web that we were forwarned.
We all stuck together as well with others in the community and the council had to back down in the end.
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The council allows two sorts of self-managed allotments: either by lease or via self-management agreements. In the case of the former, the lease-holding association issues its own tenancy agreements (broadly based on those under discussion), in the latter, in order to have a plot, you have to become a tenant of the council, although management of the site is developed to the association. I suppose, in either case, the council, which owns the land, has something in writing that dictates how the land will be worked.
In the leases, there is a clause which states that land can only be used for the growing of fruit and vegetbles. In our tenancy agreements, the clauses go further, covering sheds, dogs, hedges, paths, etc.
Newspace says that, if somebody refuses to sign a tenancy agreement, then it appears they shouldn't be on site. They are "illegally" occupying a plot. As such, they are not covered under the site umbrella policy for third party liability insurance. I'm not exactly sure what third party liability insurance covers us against, but it is mandatory as part of our agreement with the council.
I'm a bit confused when you keep saying things aren't "illegal". Surely if somebody jumps over the fence of our allotment without our or the council's permission they are there illegally? Similarly, if the council insists that all plot holders must have a signed agreement and one of them refuses and cultivates their plot anyway then they are doing so "illegally"? Maybe the definition of the word "illegal" is required here. However, what they are doing certainly ain't right!!!!
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3. The association is not the landlord, it's the landlord's agent, but as you're binding the landlord to an agreement it would be altogether better if the council let you issue tenancy agreements.
Does the council understand your plight ?
Would the council allow your association to be responsible for getting the tenancies signed ? (it would be something else they didn't have to do !)
For a couple of years, when I first started working on a lottie, I was sharing with a fully paid up tenant.
Then the plot next door became unused and I took it over - that tenant had several plots.
As the existing tenant was over 65 and got half price, it was left as that and I paid the reduced subs.
Time passed ...
One day I (and others) were having a debate over lottie rules with a committee member, I was told to "shut up as I was not even a member and had not right to even be on site" - despite paying the subs. AND getting the receipt for them, AND having my own key,
The following year I made sure my name went on the tenancy and I paid full subs straight to the council, bypassing the committee - I wasn't going to allow the pregnant dog to throw me off, or even talk to me like that.
Cruz, you other option is to not be a committee member, and let someone else worry.
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Tin shed,
Sorry, the development is to bring overgrown areas back as allotments, rather than keeping them wild. It's this that is being resisted.
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2. Of course you can insure against illegal activity. If someone nicked my bicycle for example my household insurance would pay out.
You can not insure youself while doing something illegal, if someone nicks your bike, and then has an accident, then no insurance company will cover that, or inthis case, if the person who has not signed the tenancy causes an accident then the insurance company my not pay out as they may say they were on the site illegally.
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Pesky rabbit,
I got asked to be on the committee at a time when nobody else would.
It's more trouble than it's worth -I used to go to the allotment to get away from the stress of quite a difficult job!
Nevertheless, sometimes in this life we do what is easy and sometimes what is right.
The council is perfectly aware of the situation. I have urged all members to sign and most have, but those holding out simply aren't interested in cooperating or seem to think that what they are doing is for a "cause".
Anybody want my job?
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Conthehill,
Exactly! That is what the insurance company said. Thank you for putting it more eloquently than I did!
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Thanks for clarifying the 'development ' issue ;) - but I think they are sticking their heads in the sand as well as causing issues with insurance,
We have a couple of wildlife areas, but our committee tries to keep as many plots in use as possible therefore proving that the site fully occupied.
Too many 'wildlife'areas = an underused site = valuable land ready for development.
Do you think that your awkward tenants realize that their actions could possibly lead to the end of the site in the future? Plus the fact that they do not have a tenancy agreement could mean that as far as the council is concerned that they don't really exist on that site anyway.
All allotment sites are valuable assets and I am very wary of councils - they have pressure from Goverment and they always need finance.
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I'm a bit confused when you keep saying things aren't "illegal". Surely if somebody jumps over the fence of our allotment without our or the council's permission they are there illegally? Similarly, if the council insists that all plot holders must have a signed agreement and one of them refuses and cultivates their plot anyway then they are doing so "illegally"? Maybe the definition of the word "illegal" is required here. However, what they are doing certainly ain't right!!!!
This is the crux, and no, none of what you describe is illegal. If someone jumps over the fence then they are a trespasser. Trespass isn't illegal. All you can do is ask them to leave.
But your tenants without signed tenancy agreements are not trespassing. They are there with their landlord's consent - the landlord knows they are there and has done nothing about it so the landlord is estopped from treating them as trespassers, and doubly so as the landlord has taken rent from them. Basically the landlord would have had a very short time to evict them as trespassers once they refused to sign their agreements, and that time is well passed. They're tenants, the only quibble would be the terms of their tenancy. The statutory provision of S.1 Allotments Act 1922 probably obliges the council to give them 12 months notice to quit, and both S.28(4) Small Holdings and Allotments Act 1908, and the fact that they took possession of the plot pending the agreement being signed, probably means the allotment rules apply to them. A yearly periodic tenancy is perfectly valid without anything in writing.
Newspace says that, if somebody refuses to sign a tenancy agreement, then it appears they shouldn't be on site. They are "illegally" occupying a plot. As such, they are not covered under the site umbrella policy for third party liability insurance. I'm not exactly sure what third party liability insurance covers us against, but it is mandatory as part of our agreement with the council.
OK, so there are three things this insurance policy might be:
1. As the Committee manages the site the Committee are (collectively and individually) liable for any injury or damage that results from the Committee's negligence. So say they organise a working party and someone who's strimming throws up a stone which smashes a greenhouse. Both the Committee and the person strimming would have to pay for the repair. It's not reasonable that the Committee put their members in that situation, and if they're prudent they wouldn't want to put themselves in that position either, so they need third-party insurance to pay for the repair, both to cover themselves and to cover their working parties.
Actually, as the Committee are just the Council's agent the Council still share some liability with the Committee, particularly for liability outside the Committee's control, so the Council are being cheeky by demanding that the Committee insure their liability, if that is infact what they've done.
2. Say the Committee decide to dig a big hole on site and line it with pointy sticks. They put up a few signs to say "beware of the pointy sticks", but someone breaks in at night and, unable to read the signs, falls in the hole and impales herself. The Committee again are going to be held personally liable for the injury, so they jolly well want to have third-party insurance to cover themselves for that.
3. Say a tenant is careless with their bamboo canes and someone walks past their plot and gets a cane in their eye. Occupier's Liability 1984 says it's the tenant that ows the duty of care, so this has nothing to do with the Committee. However, the site association might want to provide some public liability insurance as a benefit to its members, and so now the member's liability is covered by another policy. Note that this is completely different from 2. above. In 2. the policy covers the Committee's liability, and here the insurance cover's the tenant's liability.
I don't see that any of those three situations change with the details of the tenant's tenancy agreements.
I think it's unfortunate that a wildlife area has become so devisive. It's a shame people can't listen to each other and then decide democratically. But we don't always, do we.
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Cruz,
For all the good information put forward here your only option is to go to the council and sort out things with them.
When you formed a committee/association and decided to run the site on behalf of the council an agreement should have been signed, what does this say? I don't see if you keep the rent money why you're not issuing the tenancy agreements.
I think a meeting with the council is a must if they want it or not as if they are the ones paying the insurance for the site then they are 100% responsible for what happens to the people on the site and should be made aware of this but not over the telephone but at a meeting between yourself and them and any other responsible plot holders you have on the site.
The guy that is causing all this trouble would have to go if he was on our site and gone he would be. I know that sounds awful but allotments are for pleasure and a stress free leisure time, no one needs all this hassle but you have to go to the top first and get it sorted, without more information of your agreement with the council anything being legal or not has nothing to do with it really. As it would all boil down to people not being insured when on site as that is a legal requirement and the council should be well aware of this. So, it makes you wonder what they are up to.
Can't you go to a local councillor if an officer of the council wont make an appointment with you to discuss things?
Yes, I'd come and do your job, as it is worth getting sorted out, so all plot holders can enjoy their time on the plots.
Sinbad
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Thanks for some very interesting information.
The whole approach from the council has been amateurish. They want nothing to do with allotments in this area and have asked all sites to self-manage or gain a lease from them. You would think, wouldn't you, that they would have at least put together some form of outline agreement that set out in detail their relationship with us? I asked for 12 months for something like this. Nothing doing. It is almost as if they don't want anything in writing.
Instead, we were asked to define our own relationship with them!
Of course, their tenancy agreement sets out the major do's and don'ts that we have to abide by, but we have put together our own constitution and set of rules (which clarify those in the tenancy and add others covering behaviour, water use, etc). I don't like this situation; it is much too vague and there are areas where it's not clear where responsibility lays. I have asked for these to be clarified, but nobody will put anything in writing...
In fact, just getting any council input in this matter has proved controversial. The rogue committee member wants no involvement from the council whatsoever, but this is because, when pushed, the council will explain the law to them on how they have to manage the plot in compliance with the law. The rogue member essentially wants to right to do exactly what they want. (Please understand, I have to leave out substantial detail here, but up to recently, the council was in breach of the 1908 act and it was up to me and the other sane committee member TO EXPLAIN THIS TO THE COUNCIL!!!)
The committee is therefore split 2 to 1, with the rogue member not wanting to hear anything about the law becauses it undermines their position. We are therefore accused of running to the council at the slightest opportunity, thereby undermining our own position as a self-managed association. However, self-managed means managing a site within the law and to do this we have needed council help. But I am really angry about the tenancy agreements. Why bother to issue them if tenants are not forced to sign them? Those that do are furious that the pillocks that don't get away with it. It seems that we have a two-tier membership structure, which isn't fair.
I'm going to battle away until we get this resolved one way or another.
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Does a tenancy agreement have to have anything in it referring to the Protection of Data?
Also, our agreement alludes to the fact that you have to inform the council if you go bankrupt, which is also proving to be a sticking point! Anybody know why the latter is included in such a document? Literally, a tenant has to give up a tenanted plot if they go bankrupt.
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The Data Protection Act applies automatically, so you have to comply with it but there wouldn't be any need to include it. I wouldn't have thought the bankruptcy cause would be compulsory, it's more of a fossil left over from the old days.
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They can only use your information for what you supplied it for, that is the running of your allotments, this does not have to be on the agreement. If they want to give your details to somebody else, you will need to give your permission, this could be done via a tick box in the agreement, but can't see why they would want to do that.
There was another thread a little while about bankruptcy, most agreements seem to include this.
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On our site, paying lottie subs is a different entity to the plot tenancy as it is for people to be able to use the shop facilities - not for the allotment. We charge subs but that is for people to be able to purchase from the lottie shop and nursery.
If you have a waiting list then reallocate the plots with no tenancy. Put a notice up first, giving 14 days warning and see how many people come knocking at the door to sign the contract.
If the council are looking for "potential development sites" then your lottie site looks good for the taking. If only a small percentage sign tenancy contract agreements, then in theory, the council could argue the site is underused and therefore would be put to better use by being developed. The good news for those who sign the tenancy is they are the only ones the council would need to find an alternative plot. The council win by selling a large site and only having to allocate a smaller one in its place.
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No one at my allotment signs a tenancy agreement. New plot holders are shown where it is and handed a copy of the rules.
Also no insurance - not sure why this should be mandatory.
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insurance isn't mandatory on allotments. BUT, each individual polot-holder will be liable for any insurance claims arising from their plot. (tresspasser slips and hurts themself, child wanders in and drowns in waterbutt, etc etc) ;)
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There is an on going misunderstanding about people signing a work contract. When they start a new job. This comes under Industrial Law.
You do not sign a work contract.
What you do is sign a form which says that you have received a copy of the contract from the employer. The employer is obliged by law to give you a copy of this within so many weeks of you starting employment with them.
It probably does not apply to Allotments in the same way.
My suggestion with the allotments is that a copy of the contract is displayed in a prominent place so that every one can see it. Tell every one that by paying their rent each year they are agreeing to abide by the rules/terms and conditions of tenancy.
It is all a bit silly really, as citizens we do not sign up to say we agree with the law of the land do we? If we go on to a public park and there is a sign up to say 'dogs must be kept on a lead' or 'do not walk on the grass', don't we accept that by being there we are subject to these rules?