Allotments 4 All

Quote from: mahonia on December 16, 2010, 16:08:51
There are many people on the allotments who are very concerned that the association are acting beyond their authority and using the association's money to bring an action against a member.

The association must act within their constitutional powers but that will certainly include evicting a tenant if they are acting in good faith.  If you have evidence that the association are being malicious then you can probably bring this up in court as an abuse of process, but the court might not agree and then you'll come over as unreasonable yourself and that won't help your argument at all.  It's almost always best to assume good faith.

Before the association apply for an injunction they will need to have complied with the civil procedure rules pre-action protocol which obliges them, amoungst other things, to provide you with any documents they will be relying on and they'll need to include in that bundle their constitution, the lease, the trust document, the minute where they resolve to seek the injunction, and I would expect there to be documentary evidence to support their application for an injunction such as written complaints against you or whatever, and if any of that is missing you can ask them for it and any other documentary evidence you need to support your defence.  If they don't follow the protocol the court will likely kick them into touch before it comes to court, and if they can't provide those documents you have a strong argument to deny the injunction.  Given those documents you can prepare your defence.

As part of the pre-action protocol you are both expected to have made a serious effort to resolve the situation without litigating, and if you can't evidence that effort the judge may well send you away to try before she'll hear the application.  You would do well to make a genuine effort to negotiate with the association and resolve your issues through mediation.

Quote from: mahonia on December 16, 2010, 16:08:51
I am not sure if an Unincorporated Association can bring an action.

Yes, it can.  Well, actually it's the association's officers who bring the action personally because as you allude an unincorporated association has no legal personality of its own, but it's not a particularly important distinction.

Quote from: mahonia on December 16, 2010, 16:08:51
The association's money belongs to the members as I see it, so surely the members should have some say as to how it is being spent.

They do, though the democratic election of the association's officers at the AGM.

Quote from: mahonia on December 16, 2010, 16:08:51
There are a lot of derelict plots to clear and funds should really be used to get them cleared up by professional contractors.

For some reason there is no will to do this.

It depends on what the constitution says, but it's likely that the management committee decides association policy.  There's no reason why you shouldn't make representations to the committee, and any well managed committee will consult its membership anyway, but at the end of the day what the committee decide is the democratic will of the membership - that's how representative democracy works!  Best option is to propose a course of action at the AGM, and if the membership is in favour of it then the committee is obliged to follow.

Thank you Unwashed for your detailed advice.

The Association have refused point blank to let me have any of the documents I have asked them for in writing, which includes the Constitution. They have said that they do not see why members should see such documents which are the domain of the management committee only. I have asked other members to request the documents also and they too have been refused.

Throughout the summer I have tried very hard to persuade the association to meet and discuss the issues but they are simply not interested in facing me. Indeed the chairman, allotments manager and trustees all resigned.

After waiting several months and after my persistent demands to see the allegations, they let me have a list of 5 allegations!!! All of which were stated to be anonymous. There were no dates given, no details of plots, no names of accusers, no names of plot holders in fact no hard evidence whatsoever.

Regarding anonymous allegations, this is not new and has occurred in the past to the extent that the Association published a statement in a 2008 newsletter that anonymous calls or letters would always be ignored and would not be acted upon.

However in my situation, they seem to wish to use them.

I take the view that if they bring an action in court, that would give me the opportunity to present my side which has been ignored so far.

The Association are required, when taking adverse action, to allow you to see such evidence as they have and the opportunity to rebut it. In other words, natural justice precludes the use of evidence which cannot be challenged i.e anonymous. Unless the presenter of accusations can be questioned then their evidence is not to be considered.

The Association will need to give you the opportunity to appeal and challenge any assertions they make. Such an appeal may not be heard by the same people who made the original decision to evict.

which model of 'association rules' does your association follow?
our associations rules are based on these.
http://www.nsalg.org.uk/uploads/article459/Model%20Rules%20unregistered%20simple%202006%20A4%20format.pdf

all members are entitled to a copy on request, for a nominal sum (50p)

I can't get my head around this.

If there was an AGM in October then surely it was advertised in advance, accounts produced  and officers elected etc so everyone should know who has which job and where the money is going.

Did you attend and if so what actually happened?

In reply to jules2, there was an AGM but there is apathy amongst the membership and no new people are interested in management. There is an atmosphere of secrecy and plot holders just don't want to get involved.

Most plot holders just want to garden their plot and in this situation the status quo is maintained.

The main problem is the committee 'clique' who want to run things their way and any new committee members in the past have not stayed long.

The committee are also very secretive and do not openly give information, which could be challenged and questioned.

Anyone who challenges them, like myself, faces their persecution and they always seek to evict people they regard as trouble makers.

did you attend the AGM?

What's your latest Mahonia?

I am still on the allotments as usual but I am always there with my friend and fellow plot holder as I have had abuse over this matter and if I receive any more abuse or threats, then I have a witness.

I am determined to stand firm and if they wish to carry out their threats of an injunction, then so be it.

Apart from my own struggle, we are very concerned about the derelict plots and the building waste dumped on the site. Fires are still going on and there is always the risk that another load of harmful materials would be burned.

The asbestos issue I mentioned before, has not been resolved and the local Borough Council are being quiet about it. I have requested their report on the matter, but so far no response. I may well report the matter to the HSE.

I have also learned that another plot holder has been given an eviction notice for having a weedy plot, which seems unreasonable and unfair when next to their plot is a load of dumped rubbish which has been there for years. Naturally the plot holder is very upset and what they probably need in this situation is a little support and a helping hand. Its all so heavy handed on our site and it is all down to mismanagement and lack of respect for people.

The 'business community' who are using their plots to store and dump building materials are getting away with it, while decent folk are being harassed and bullied.

Might be worth doing an FOI request for the report if they're being slow...that way they have to comply with the request within a certain time period.

Thanks for the advice about FOI request.

Do you know if the Allotment Association has to comply with FOI the same as councils do?

I'm not sure ....this part of FAQ on the ICO website might help:

http://www.ico.gov.uk/Global/faqs/freedom_of_information_act_for_the_public.aspx#f30AA9BF4-D650-4FD4-A101-FC4CDC431D17

I have made the FOI requests to the borough council.

I have also made a complaint directly to the Chief Executive regarding the council's lack of response to my requests and the general state of the allotments, rubbish, asbestos etc. and I told them of my intention to report the asbestos matter to the HSE.

The council have responded straightaway. So I will let you know the outcome.

I have mentioned the derelict plots before but I am particularly concerned about the large number of plastic drums with liquid in them just dumped on uncultivated plots.

As you know, I have been served an eviction notice and I am continuing to work on my plot.

I was seen on my plot by some committee members and they have sent me a letter saying I am trespassing and they will now go ahead with a court injunction.

Along with their letter they returned my cheque I sent them back in June 2010 for the rental. So they have watched me work on my plot for the past six months without comment and have waited until now to return the cheque.

Although they deliberately did not collect my rent, I paid it anyway and if they did not cash the cheque that is their problem.

There is a complication in that my partner has her own plot and the cheque was in payment for both rentals.

The association are now saying that my partner should reapply for membership.

What a mess this is turning out to be.

Now they have dragged my partner into this situation.

Help and advice please.

Had the committee accepted payment of rent after terminating your tenancy then that action would, by operation of law, void any termination and demonstrate that the tenancy does in fact continue.  On the other hand refusing to accept rent does nothing to enforce a termination.  Refusing to accept your partner's rent doesn't affect her tenancy in any way, it just gives her the plot rent-free - the tenant has an obligation to tender the rent, and the landlord has a duty to accept it (well, actually I think the landlord only has a duty to accept rent tendered in coin after sunrise and before dusk so as not to require her to count it out in candle light, but if the rent is customarily accepted by cheque I doubt there'd be a problem) so having refused to accept the rent the landlord can't then say that the rent is in arrears.

As I think has already been said, if the landlord hasn't enforced the termination through physical re-entry or court order for possession then you can't be a trespasser, and it's unlikely that the committee would even be allowed to waste the court's time under those circumstances.

It is important though that you continue to assert your tenancy, so make yourself as visible as you can on your plot.

I don't remember the details, but how is it that the committee believe they evicted you?  What did your eviction letter say?

At the end of the day I think you're going to need someone to mediate between yourself and the committee.  I'm very happy to help if I can.

The committee sent me a letter saying they had a 'hearing' at which they took a decision to evict me.
The letter also contained a threat of injunction for trespass should I remain on the site. No details of the 'hearing' were given and no minutes of the 'hearing' either.

Remember this whole situation started when I made a complaint to the local council about the state of the allotments and the asbestos in particular.

A few weeks before that I discovered that the council had been to the site and then sent a letter to the association saying they were in breach of the lease.

I have a copy of their letter which threatens termination of the lease unless the site is cleaned up.

The association have flagrantly ignored the letter and the council have not followed it up.

So I suppose the association are technically still in breach.

The association took personal exception to my complaints and since then it has been trouble for me, starting with allegations of thefts from plots, based on anonymous telephone calls they say. But they look made up to me. They do not have any hard evidence.
The association decided to use these 'anonymous allegations' as a reason to evict me.

You would imagine how damaging their allegations have been to my reputation as they made these allegations in writing and other members saw and noted them. One of the committee members is also a trustee and local councillor and so he is very much implicated in this. He suddenly resigned back in September 2010 and the Chairman resigned back in May 2010.

It has been a very sorry story and it would seem that now the remaining committee wish to target my partner also.

We are both allotmenting as normal and making ourselves clearly visible to other plot holders and committee.

I am very grateful for the support and advice you are giving.

Have you been to a council meeting and brought any of this up at all as they are the ultimate owners of the land? I found that things very much took a turn for the better for me after I went along and stated my case to the whole council rather than just writing letters. It still took some time to get things sorted for me...but it gave a bit more edge to my arguments having something formally in the council minutes about my situation.

Making a formal complaint to the council seems to get them to sit up and pay attention as well  :) ...and it means if the council involved is a district/metro/county council then you can escalate that complaint to the local authority ombudsman if you're not satisfied with their response.

TBH though if they are calling into question your character so publicly I'd be inclined to get some legal advice as well.

Quote from: sazhig on January 10, 2011, 20:38:58
Have you been to a council meeting and brought any of this up at all as they are the ultimate owners of the land? I found that things very much took a turn for the better for me after I went along and stated my case to the whole council rather than just writing letters. It still took some time to get things sorted for me...but it gave a bit more edge to my arguments having something formally in the council minutes about my situation.

Making a formal complaint to the council seems to get them to sit up and pay attention as well  :) ...and it means if the council involved is a district/metro/county council then you can escalate that complaint to the local authority ombudsman if you're not satisfied with their response.

TBH though if they are calling into question your character so publicly I'd be inclined to get some legal advice as well.

I agree that you should complain to the Council.

What do you want to achieve from this?  Not being evicted is simple - just don't leave.  If you want to be part of the site management then you need to work with the committee, so you need to build bridges.  You'll probably need some help doing that.  Do you have a stratagey?

Have you contacted your MP or the local press? If the latter sent a photographer round to get pics of the mess elsewhere on the site, that could really embarass them!