Unlawful eviction from my plot

[mahonia]

Please would you advise us.

In previous posts, I told you that the association returned our rentals cheque after holding it for six months. We tendered the rents on July 1 2010 and the cheque was accepted and we gardened our plots as before. In December, our cheque was returned.

Now they are attacking my partner and have sent her an eviction letter saying that as she is in arrears with her rent the association are giving her 14 days notice to quit, saying 'according to association rules'.

Of course you know we have asked repeatedly for the association rules (constitution) and copy of the tenancy agreement but the association have refused to provide them.

Their letter relies on 'the rules' which we are prevented from seeing.

We are not going and definitely staying put.

Myself and the association are in dispute, but now they are attacking my partner and dragging her into it.

This association is corrupt and the situation has got out of hand.

Your advice please.

[mahonia]

[mahonia]

I forgot to mention that the letter to my partner was on new format association headed paper and the preprinted paper now shows the acting chair as chair.

So who promoted her to chair?

Surely this is misrepresentation. I would have expected any promotion of officers to be voted for democratically at the next agm in October.

Are they just taking the mickey or what?

[Unwashed]

You can't be evicted, but of course that doesn't stop you worrying, and it doesn't stop the committee harassing you like this.  It's a rotten situation because the committee don't sound like they care much whether they're acting legitimately or not.

Your rights then:

Your landlord can potentially forfeit your tenancy for two distinct reasons, a.) arrears, and b.) breach of a term of the tenancy agreement. Both are forfeiture, but the law deals with them seperately - nothing in life is simple!

a.) arrears.

Unless the tenancy agreement says otherwise your landlord can forfeit your tenancy as soon as you are one day in arrears by as little as one penny.

There is no requirement to serve notice that the tenancy is being forfeit for arrears.  As soon as you are in arrears your tenancy can be forfeit.

Under the common law the rent must first be lawfully demanded, which actually means the landlord must physically demand it at the allotment between sunrise and sun set (the law doesn't expect you to count the rent out in candle light) and the demand must state precisely how much rent is due.  However, there is no need for that formality if more than 6 months rent is owing, or if the tenancy agreement has a term that allows the landlord to forfeit for arrears "whether lawfully demanded or not".

The landlord's right to forfeit the tenancy for arrears is implicit and it is not necessary to have a term that specifically allows it.

Small Holdings and Allotments Act S.30(2) creates a statutory minimum of 40 days that the rent must be in arrears before the council can forfeit the tenancy.  It's not altogether clear whether a site leased from a council and managed by a committee comes within S.30.

If you've paid the rent but the cheque has been returned uncashed then the landlord hasn't accepted the rent, but that doesn't create arrears.

If the landlord has served notice to forfeit for arrears and subsequently accepts any money whatsoever for whatever reason then by operation of law that defeats the notice - the landlord can't accept any money if she wants to forfeit for arrears.

If you're being threatened with forfeiture for arrears and you dispute the arrears you can't apply to the court for relief from forfeiture until the lease has actually been forfeit, you can only do that after you've been evicted.

You might possibly be able to apply to the court for declaratory judgement or an injunction as a way of resolving the dispute before you actually get evicted.


b.) Breach of a term of the tenancy agreement

The process is set out in S.146 Law of Property 1925.

You must be served with a notice that says exactly what term of the tenancy agreement you are in breach of, and you must be given reasonable opportunity to put the matter right, or at least compensate the landlord for loss if the breach can't be put right.  If the landlord doesn't do all of that any forfeiture is invalid.

The term that you are supposed to be in breach of must be phrased unambiguously as a condition so that it's clear that the tenancy depends on the term not being breached, otherwise the landlord can't forfeit unless there is a catch all term of the agreement that explicitly allows the landlord to forfeit for any breach of a term of the tenancy agreement.

Any minimum notice period that the tenancy agreement gives for forfeiture for a breach of a term is a minimum because S.146 requires that you be given a "reasonable" time, and a court will decide what that means.  So for example it wouldn't be "resonable" to give someone 30 days from January 1st to dig the whole of their plot - and I've seen just that!

Terms of the tenancy agreement must be fair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 or it's as if they aren't there.  Terms are potentially unfair if they go further than is necessary in protecting the interests of the landlord or if they don't also consider the interests of the tenant.

If you weren't given the opportunity to see the terms of the tenancy agreement, and especialy if your agreement incorporates additional terms by way of a seperate set of rules that you weren't given before you signed the agreement then those terms are unfair.

In general the landlord can't change the terms of your tenancy agreement, and any term of the agreement that purports to allow the landlord to do just that is likely to be unfair, and it follows that any new rule is also unfair and unenforceable.

If you are served with notice that your tenancy is to be forfeit for a breach of a term of the agreement you can apply to the court for relief from forfeiture as soon as you are served notice.


So basically those are your rights, but asserting them is a different story.

If you're served notice that your tenancy is to be forfeit you're completely within your rights to stay after the notice expires, and until you have actually been physically evicted the plot is still yours.  While the plot is yours the landlord my not interfer with your right of access or touch anything on your plot, and while landlords will bluster they're potentially guilty of criminal damage if they touch your stuff and assault if they touch you.  they may possibly be guilty of criminal trespass if they go onto your plot with an unfounded intention of physically evicting you.

The landlord can evict you in two ways.  The best way is for them to apply to the county court for a possession order.  You will get the opportunity to say why you believe the landlord shouldn't be given permission.  

The other way is peaceable re-entry.  Basically the landlord physically takes the plot back, but it's technically difficult to do on an allotment because you need to be physically excluded from every bit of the plot.  I think that there has to be a provision in the tenncy agreement to allow the landlord to re-enter, but it's also possible that you could argue tht such a term is unfair under UTCCR 1999 because the phrase is technical and unlikely to be understood by the average allotmenteer.  Physical re-entry is a high-risk strategy for the landlord as if you're there to resist - and you can use reasonable force to - they risk assulting you.

Once the landlord has re-entered the plot isn't your anymore and you can only get it back by applying to the court for releif.

Sometimes the landlord will say that they'll sell any of your stuff that you leave, but if the landlord re-enters they become an involuntary baliee and have an obligation to keep your stuff safe.  If they sell it or don't look after it you can bring an action gainst them.

It is possible when the landlord claims arrears for the landlord to distrain.  this means the landlord goes to your allotment and takes enough of your stuff to sell to recover the arrears.  I've never heard of it happening, but it's a possibility.

That, in a nutshell, is the basics.

[Unwashed]

So just to clarify:  you can be evicted for breaking the rules of your tenancy agreement, and unless you have a copy of them and the tenancy agreement that incorporates them, it's difficult to know how you're supposed to keep them.

The association rules are completely different things altogether.  Your dispute with the association, and their unwillingness to give you a copy of the constitution has nothing whatsover to do with the dispute about breaking some site rule or other.

Can you post the eviction letter?

[mahonia]

Thank you from both of us for the detailed explanation.

We are staying put and waiting for the association's next move. All of this trouble is coming from the lady acting chair who now appears to be chair.

Clearly she does not care about us or indeed others on the site who have also had problems with her.

As you say, some people give up their plots by simply allowing the rent to lapse, but we have tendered ours and the association have been happy to see us gardening our plots.

This matter is simply a personal issue and is becoming more vindictive.

Regarding the rents, my partner was sent a renewal notice in June 2010, but they deliberately did not send me a renewal. But we renewed both rentals in a single cheque which seems to have given the association a dilemma.

We are taking a stance of staying put and we feel it is in our interests to be physically evicted and then we can bring a court action for the wrongs.

Presumably they would be in trouble if they let our plots to somebody else, knowing they are rented to us at least until end of June 2011.

Did you have an opinion about the lady acting chair. who is doing this to us, self promoting to chair. Surely that is not in the rules, what about the AGM and democratic election of officers.

Regarding the letter to my partner, she is going to reply by asking for a copy of the association rules and tenancy agreement as they have mentioned 'the rules' in the letter.

We are battling on and comforted by the support from the forum. We thank you for that.

[elvis2003]

No,this woman can not promote herself to chair,how do other plotholders feel about the committee,if you get enough of you together you can call an EGM,not sure how many you need but someone else will here...I beg your pardon if someone else has already suggested this and  I missed it.

[Unwashed]

It's not enough for the committee just to say you're breaking the rules, you have to be told precisely which rule.

Do you not have a copy of your tenancy agreement?  It would be helpful if you could post it.

I still think you're confusing the association rules and the site rules.  they are two completely different things.  You can be evicted for breaking your site rules, if you've been given a copy before you signed the tenancy agreement, and if the tenancy agreement correctly incorporates the rules.  Make sure you ask clearly for the site rules thet you are supposed to be in breach of.

The association rules is another name for the constitution.

To be honest with you mahonia I'm less sympathetic about your dispute with the committee over the governance of the association.  If you didn't put yourself up for office at the AGM I'm not sure you have good grounds to complain about the legitimacy of the incumbent, albeit that she may well be running the show despotically.  Whether she can legitimately take the chair without election depends on what the constitution says, and it's quite possible she's acted correctly - though it's very poor that she can't give you a copy of the constitution.

Are you still representing yourself or do have have someone to advocate for you yet?

[mahonia]

I accept that the acting chair was democratically elected via the AGM really due to the lack of interest from other members and she became promoted from secretary to acting chair at the last AGM.

Regarding the 'rules', because nobody has a copy of these site rules, constitution or rental agreements, then it is difficult to argue.

As I said before an atmosphere of secrecy is maintained by the committee and they point blank refuse to give out any documents even though we know they should.

We have been on the allotment today in the wind, but we feel we should maintain our presence there.

We feel the committee have come to a dead end now and there are fewer options left to them to evict us without them going to court and I do not see them doing that.

They just harass us and we stay put. Then they harass us a bit more and we stay put.

[Unwashed]

They just harass us and we stay put. Then they harass us a bit more and we stay put.

Yeah, they'll do that.  Just stay put. :)

I think you should find someone to mediate for you.  I think I've suggested this before.  I don't see a successful conclusion likely until that happens.  It'll be painful because you'll need to compromise and accept the legitimacy of the current committee.

[mahonia]

We feel we have accepted the committee as they were voted in by members. We are just wanting to bring change to the allotments and we are being successful as further clearance of derelict plots has occurred. But it has been a struggle as the committee are not really interested in the allotments and their attention is focussed on the allotments shop.

The clearances are due to pressure from the borough council forcing them to do it.

What we are wanting is a site manager but nobody wants to do the job. This is our basic problem .

I did put myself forward in 2009, but they did not like the changes I had in mind and you know what happened after that. Theft allegations, eviction attempts etc. etc.

We have tried to resolve this matter over many months but the association have rejected our attempts every time. We would welcome mediation or arbitration but both sides have to agree to it.

We don't want to see the committee behaving shabbily especially in their senior years and it cannot be much fun for them, but the one individual is persisting unchecked and we are not convinced that the other committee members are comfortable with what is happening. They are behaving like sheep.

All we want to do is enjoy our allotment but the acting chair lady is clearly upset and resents what she may feel is interference and she is behaving like a woman scorned.

My partner has made a complaint to the borough council CEO regarding the action against her.

[pigeonseed]

It all sounds very stressful. I hope you manage to sort it out in time to enjoy your summer on the plot. The allotment is meant to be a peaceful place. I really feel for you.

[mahonia]

Thank you for the kind words of support. We love our allotment gardening and have no intention of leaving.

It is very sad that my partner is now being harassed and threatened but we have done nothing wrong and we paid our rent so thats it really. My partner is a very sweet Thai lady who is also retired like myself and she would not harm a fly.

Yes, we could just walk away but why should we. There are others on the allotments who are and have been badly treated and we are making a stand for them as well as ourselves.

We have friends on the allotments supporting us and slowly we are making a difference.

Most of the old committee have gone and only the acting chair and a few of her clique remain.

The best outcome of this situation we feel, is to wind up the association and return the site to the borough council. The council run 12 other allotments in the borough so they could do it quite easily.

I think if you google 'Poole Dorset Allotments' you should find their website in which there is an article about the Poole council taking back an allotment site due to mismanagement. It is worth reading.

Of course there are hundreds of well run self managed allotments, but ours has had its time and I don't see it lasting much longer.

[Robert_Brenchley]

I did put myself forward in 2009, but they did not like the changes I had in mind and you know what happened after that. Theft allegations, eviction attempts etc. etc.

Is this a case of someone lashing out because they didn't like what you were saying? If so, I know what it feels like!

[mahonia]

The lady acting chair wants her own way and resents anyone who speaks out. That is why there are so few committee members and nobody wants to be on the committee.

We are staying put and letting the lady dig herself into a deeper hole.

Unwashed has helped us put this sad story into some perspective and we remain confident in our rights to stay and at the moment we are enjoying the gardening rent free.

This week we are planting our broad bean seeds and doing more digging as the beds are quite well drained.

We mowed the grass paths and our picnic area this week and now my partner's plot looks very good for February.

My own plot needs more digging and I should have this done by the end of February.

[Robert_Brenchley]

That's very much the same situation as we had some years ago.

[macmac]

It all sounds very stressful. I hope you manage to sort it out in time to enjoy your summer on the plot. The allotment is meant to be a peaceful place. I really feel for you.

my thoughts exactly,sadly allotments are not exempt from people being power hungry :(
most of us just want to grow stuff  :)
I wish you well  :) :)

[mahonia]

We have decided to stay put and enjoy the gardening and let the lady enjoy her 'power'.

It is a sad story which can only hurt her in the end and it must be spoiling her retirement, after all she is age 74, 75 this year.

There is a lot to do on our site and sadly she seems so bitter and twisted and unable to focus on the wider picture and all this shabby behaviour turns plot holders away from helping.

We wish her peace as life is very short and soon it is all over.

Of course myself and my partner are not going to sit back and suffer this harassment but as Unwashed has said we just stay put and be on the allotments and let the lady tangle herself in her mess.

We have other interests and I do much local voluntary work and last year I helped to establish a large allotment at a home for adults with learning difficulties. I will be continuing with the project this year.

[Borlotti]

That is a very sad situation, I enjoy my allotment and growing but it wouldn't be the same without the good chats and the good friends I have made.  Ours is Council and with a site sec. and I can't complain about either.

[mahonia]

Thank you Borlotti, we still have friends around us on the allotments to chat to and put the world to rights.

The lady causing the trouble only has a few supporters and two of them are the business people who are abusing the site with dumping and burning. They are the heavy boys but they don't give me any trouble and I don't think they will.

They are under the cosh from the council at the moment.

[Borlotti]

The leaflet that I got with my invoice from the Council (which I recycled) said that on one of the allotment sites someone got fined a large amount for dumping rubbish, so the Council do have powers to deal with that kind of thing. Hope you get it sorted out soon.