Legal Beagle Question

[davyw1]

On our site rules it states
All new allotment plot holder will only be allowed one name on the tenancy. this rule also applies to original plot holders,allotments that have more than one name on at this present time will be allowed to keep them.

Something is niggling about this rule not being legal, possably under some discrimination act or other

Any suggestions.

Davy

[davyw1]

[grawrc]

Good question Davy. We only have one name on the missive of let but not infrequently folk ask to sign up for a plot in joint names.

[Unwashed]

grawrc, Scotland and England don't share the same law of property.

davyw1, whatever your rules say, they can't affect who already owns what.  You can't for example just remove one of the names, because you have no power to deprive that person of their property.  However, I can't think of any particular reason why you can't decide that you won't allow any new joint ownership.

Why would you want to prohibit joint ownership?

[grawrc]

Yes I know that but sometimes the discussion around something like this helps clarify.

[davyw1]

The reason is to stop list jumping so all control  of who gets the garden is run through the association IE i put your name on my allotment then sell it onto you without giving whoever is at the top of the list first choice

Davy

[tonybloke]

what's wrong with a couple having a plot in joint names?v  ???

[Unwashed]

Ah, that's a different kettle of fish.

A tenant's allotment is her property and the general principle is that people are entitled to sell what's theirs, and a contractural term that tries to limit that right is open to challenge under the Unfair Terms in Consumer Contracts Regulations 1999.  See for example the OFT's Unfair Contract Terms Guidance, 18.4.1

Contract law ordinarily allows purchasers to sell on (or 'assign') to someone
else what they bought. Terms which seek to restrict this right are
considered to be open to scrutiny as regards fairness.

It might take a bit of time to get your head around the idea of an allotment being property you can sell, but that's largely because there shouldn't be a market; there should be an unlimited supply of unlet allotments to lease.  But selling a commercial lease is completely normal, and there really is little difference between the two.  The shortage of allotments has created a legitimate market to trade allotment tenancies.

Time was when the Allotments Acts (if they apply to you) put a statutory restriction on assignment, but that was ammended so that it needed the authority's permission, and UTCCR will further imply that permission can't be unreasonably withheld.

Of course, it's legitimate that the landlord can restrict who you sell the lease to in exactly the same way that the landlord can restrict who she lets an allotment to, but the landlord has no right to restrict the tenant disposing of her property per se.

So as the tenant can't legitimately be prevented from selling (or for that matter giving) the tenancy of her allotment to someone else, there's no point trying to prevent the tenant adding another tenant to the tenancy, because it can't be used as a back-door way of achieving what you can't directly achieve, and it opens up a whole can of worms involving joint property ownership that you'd be happiest ignoring.

[davyw1]

UNWASHED, So does this apply to private allotments, as well as council.
As the land is owned by the landlord the tenent must only be allowed to sell what is hers/his on the property and must hand the allotment back to the owner surely.
Its the name adding or not being allowed to add that is bugging me, but if you sign an agreement saying you will abide by the rules not much one can realy do is there

Davy

[tonybloke]

also, does this mean that a council house tenant can sell their tenancy? I THINK NOT !!

[Unwashed]

Davy, like I say, it takes a bit of getting your head around.  What do you suppose the landlord actually owns when they own the freehold?  In English law the Crown has owned pretty much every piece of land since William's conquest in 1066.  What the freeholder owns is a right to occupy that land, and when you sell a piece of land that you own you're not actually selling the land itself (it doesn't belong to you, it belong's to the Crown), you're selling that right to occupy it.  And just as you can sell land (ie, sell your exclusive right to occupy it), so you can lease that right, and just as if I sold you my shoes I wouldn't have a right to wear them anymore, when a freeholder leases land she doesn't have any right to accupy it any more - exclusive posession is a fundamental element of a lease, and if you don't have that you don't have a lease.  So if you lease a bit of land - like an allotment - it's your property, and you can sell it or lease it just like your landlord did.  And yes, it doesn't matter whether it's the council that owns the land or not, and in fact you can see how it works when the council isn't the freeholder - the council lease plots just the same because it doesn't matter whether the council owns the freehold or leasehold, they have just the same rights that they can sell on.

also, does this mean that a council house tenant can sell their tenancy? I THINK NOT !!

Housing is a bit more complicated.  For example, S.15(2) of the Housing Act 1988 allows landlords in assured periodic tenancies to refuse the tenant a right to assign (and it's possible that would be open to challenge under the Human Rights Act), but in general, yes, your right to sell your property extends to the lease on your house.  See for example, OFT guidance on Unfair Terms in Tenancy Agreements:

4.22 The law ordinarily allows purchasers to sell on (or 'assign') to someone else what they have bought and this applies to tenancies as to other property.

Just because the council say something can't be done, doesn't make it so.  It could be challenged.

[Old bird]

I think that there is nothing wrong with a Mr & Mrs/partner but as has been said this is to stop people abusing the list system and jumping queues. 

I can't see why anyone would get hot headed about it I am sure that it infringes many laws human rights etc but - give it a rest - what is the problem?  Either you are an allotment tenant or not.  Why do you need any more than one name on the tenancy unless you are trying to bend the rules.  If it is a shared plot then I suppose that is different but how many allotments are "shared" and if they are they should have the names registered at the outset.

Old Bird

[Chrispy]

If you have a lease, you can sell that lease, but as an allotment holder, you don't have a lease, you are a tenant, with tenancy agreement, which you can not sell.

[Chrispy]

Here in Guildford, they have actually gone the other way.
They made a point that if you give up your allotment, it can only be transferred to the other person named on the tenancy, and encouraged you to add names to the agreement.
You do have to pay an admin charge for each person.

[Unwashed]

Old Bird, I'm answering davyw1's question as best I can, I'm sure there's no need to be so unpleasant.

Conthehill, this has come up before.  An allotment tenancy is ordinarily a lease.  The only other thing it could possibly be is a license, such as under LandShare, but if you have exclusive possession of your plot and don't share a communal bed you have a lease.  See Law of Allotments 5th edition by Paul Clayden.

[RW]

For the past 5 years I have shared the allotment with my daughter. Never thought of adding her name to the lease but this would probably make sense if it is possible to do it.

[Old bird]

Unwashed

I didn't set out to be unpleasant - I am sorry if you think I was - I speak as I feel - I call a spade a spade and I - unless I direct an answer to you - am only generalising.

You will get used to my plain speaking - but I repeat - I do not mean to cause offence, and I was not directing any bile in your direction!

O B :D

[davyw1]

  Unwashed
        At the end of the day it is a soliciter and a an eviction order to remove some one from an allotment regardless of any rules they have broken.
The first step being to refuse to renue their lease then the above if the do not get off

Davy

[Unwashed]

Hope my point of view was helpful Davy. 

[davyw1]

Hope my point of view was helpful Davy. 

Its was spot on my friend and thank you very much, our secretary just will not be told you just cany throw people off the allotments although i want these particular people off just as much as her,(4 horses,uncultivated and we know they are into tea leafing) but cant be proved people will not come forward and actually point a finger.
all i have to do now is draft a letter to inform them that they have 30 days to remove all that belongs to them or an eviction notice will be applied for and served

Once again thanks very much

Davy

[Unwashed]

Cheers Davy.  The bluff might work, but have you followed the correct procedure for evicting your problem tenants?  You won't get a possession order unless you have terminated their tenancy correctly - so that's either a correctly served notice to quit in accordance with a term in the tenancy agreement (and that's probably 1 year's notice expiring 1st April), or else re-entry for a serious breach of the tenancy agreement having correctly served notice under S.146 Law of Property 1925 and given the tenant reasonable opportunity to remedy the breach.