GUIDANCE FOR ALLOTMENT ASSOCIATION TRUSTEES
This guidance applies to trustees of allotment associations which are Unincorporated Associations (that is, not registered charities or companies or other forms of legal trusts).
Allotment association trustees are the people who serve on the governing body of an allotment association which consists of all of the plot holders of the allotment site. There will normally be a minimum of three trustees who may be known as Managing Trustees and who may also serve as Officers or committee members of the association. The principles and main duties are the same in all cases. These trustees are Lay Trustees, not Professional Trustees who are subject to stringent legal requirements.
For a Direct Lease (Self-Managed) allotment site, the Trustees are the Lease Holders of the site and are responsible for letting plots to plot holders and for all other duties and responsibilities in accordance with the site Lease Agreement.
The trustees have and must accept ultimate responsibility for directing the affairs of the allotment association – ensure that it is solvent, well run, and operates according to its constitution (governing document).
This will generally require the establishment of a committee elected or otherwise appointed by the members of the association to manage the association’s affairs. The committee should have a Chair, a Treasurer, and a Secretary to serve as Officers of the association. These may also be trustees of the association.
Compliance – Trustees must:
1) Ensure that there is a constitution for the association and that a committee exists to manage the association’s affairs in accordance with this constitution.
2) Ensure that the allotment association complies with requirements of the allotment Lease Agreements and that the association prepares Annual Returns or Accounts as required by its constitution.
3) Ensure that the allotment association does not breach any of the requirements or rules set out in its constitution and that it remains true to the purposes and objects set out therein.
4) Comply with the requirements of other legislation and other regulators (if any) which govern the activities of the allotment association. There are special legal requirements that apply to trusts and trustees of Registered Charities, Authorised Unit Trusts, Occupational Pension Schemes, and where land is acquired or other capital investments are made. Allotment associations would not normally be involved in these activities. However, large associations may wish to consider registering as a charity with the charity commission (which in 2011 requires a turnover of at least £5,000 per annum) in which case there will be some legal requirements.
5) Act with integrity, and avoid any personal conflicts of interest or misuse of allotment association funds or assets.
Duty of Prudence – Trustees must:
6) Ensure that the allotment association is and will remain solvent.
7) Use the association funds and assets reasonably, and only in furtherance of the association’s objectives.
8) Avoid undertaking activities that might place the allotment association’s funds, assets or reputation at undue risk.
9) Take special care when investing the funds of the allotment association, or borrowing funds for the allotment association to use.
Duty of Care – Trustees must:
10) Use reasonable care and skill in their work as trustees, using their personal skills and experience as needed to ensure that the allotment association is well run and efficient.
11) Consider getting external professional advice on all matters where there may be material risk to the allotment association, or where the trustees may be in breach of their duties.
If things go wrong
Trustees may be personally liable for any debts or losses that the allotment association may face as a result of things going wrong. This will depend on the circumstances and the type of constitution for the association. However, personal liability of this kind is rare, and trustees who have followed the requirements set out below will generally be protected.
Trustees Responsibilities
Before becoming a trustee you should take all reasonable steps to find out as much as you can about the allotment association, and about what will be expected of you as a trustee. You should get a copy of the allotment association’s constitution and read it. If it isn’t clear what it means, ask one of the existing trustees or the allotment association’s Secretary to explain it.
Ineligible people: Those who have already been disqualified as company directors and those who have been convicted of an offence involving dishonesty or deception are some of the people who cannot usually become trustees. In some cases, people who receive benefits from the allotment association may also be ineligible.
Trustees are not entitled to receive any payment out of the allotment association’s funds other than reasonable and necessary out-of-pocket expenses, such as the cost of travel to attend trustee meetings. Also, they must not benefit, either directly or indirectly, from the allotment association by, for instance: taking a lease of the allotment association’s property, borrowing money from the allotment association or making contracts to do business with the allotment association unless that is explicitly allowed by the constitution and authorised by the committee.
Any trustee who abuses their position may have to make good any loss that results to the allotment association out of their own pocket and where such abuse results in a profit then they may have to pay the amount of that profit to the allotment association.
Resignation, removal, appointment, and replacement of trustees
On the loss of a trustee, a replacement trustee will normally be appointed by the remaining trustees and the management committee, subject to the provisions and requirements of the lessors (the Council) and the association’s constitution. The Council and association members should be notified of any such change.
A trustee may resign their position by formal notice to the other trustees but will of course retain responsibility for their conduct whilst they were trustees. Where any trustee becomes ineligible or otherwise becomes incapable of fulfilling their role as a trustee, they should be removed from office and replaced. A trustee may be removed from office by the other trustees (assuming there are enough of them to make a proper decision) and the association’s management committee, in accordance with any provisions of the association’s constitution.
Acknowledgments, sources of information and further reading
The information in this document is taken from a number of sources, in particular the following who are gratefully thanked. Though their guidance is primarily for registered charities, much of the content is relevant to the trustees of unincorporated associations.
The Charity Commission (www.charity-commission.gov.uk) publish guidance on their website for trustees of charities, and although allotment associations are not normally registered as charities, there may be advantages in doing so for larger sites having a turnover of at least £5000 per annum.
Community Matters (www.communitymatters.org.uk) is the National Federation of Community Organisations. Their Fact Sheet number 70 and others give a lot of information and guidance on trustees and other matters.
National Council for Voluntary Organisations (NCVO) (www.nvco-vol.org.uk) publish information on the roles and responsibilities of trustees and have guidance on helping to find, recruit, induct and keep trustees and the recruitment of management committee members, members of the committee, etc.
Compiled September 2011
Allotments Stockport 
we are a village allotment society with three sites. Our chair has decided to poll one site with a view to that site becoming separate. Surely all plot holders should be involved in any voting.
Hi Jenny Can you email me at iangardiner@sky.com Ian
Our allotments are a charity. The chair is a trustee and until recently her son and daughter too. That has changed and two new trustees have been appointed. Unfortunately no one knows who they are and they haven’t visited to introduce themselves. The chair is so difficult to work with and regularly loses her temper if challenged about anything. Because of that we have had no secretary for some months now and her son is the treasurer. We asked for an EGM in July and she refused stating that she would organise an AGM for October but not stand for re-election. However she’s not intending to resign from her role as trustee. That will, I think, still give her some control. She sent an email recently from THE MANAGEMENT stating that one of our three sites wanted to become independent and we should ALL think about it and we would get the chance to vote. I sent an email asking why, if you’re stepping down, do you want all this extra work. Why not wait until a new committee had settled in and then look again at the option. We heard a few days later that she had set up an online voting system but only for plot holders on the site concerned. The result was a yes and our chair appointed a new manager of that site and that person wrote a new constitution and declared that they were now a separate organisation. Nobody has seen any evidence of that poll and from past behaviour of our chair we don’t trust what we are being told. Several of us have asked to have a copy of the charity’s governing document . These requests have been ignored. What can we do?
Hi Jenny It certainly sounds complicated, but as a charity you should have extra safeguards built into your constitution. Firstly, do you have a copy of your constitution? are you able to share with me? It should cover the election and removal of trustees, it is not recommended for trustees or committee officers to be family members. It will also cover the requirements for calling an EGM, and a timescale for the meeting to be held. Which area are you located? I am chair of the National Allotment Society North West Region so I can help more if you are within this area, assuming you are members of the NAS. If you are in any other area, I can put you in touch with someone near to you that can help. Kind regards Ian
Wondering if your can assist. We are an allotment association of 45 plots owned by the local parish council. We have a lease and constitution in place and committee who manage the site on behalf of the parish council.. We really don’t know if we have to register as a trust under HMRC money laundering requirements and are struggling with the legal jargon understanding what to do. Do we have to create a trust, register the trust, then the trustees or do we not have to? Google searches bring up conflicting information any guidance would be appreciated. Thank you.
Gail Wears
Hi Gail, This is something we are currently looking into as the advice we have received is quite vague. Once we have clear information for allotment sites, I will post it on this website.
Hi Gail
As the current new chairperson of our allotment and following questions from committee members of other local allotment sites, I have also had to look into these matters. The jargon is not only confusing to committee members, it also is to the council green team members who liaise with the committee members of the allotments. You are rightly referring to legal jargon in my view and I assume that your allotment association is also an unregistered association, which is not recognised as a legal entity as such in the legal system, as ours is.
I will also presume that your lease agreement between your Council and your allotment association may also refer to the acting officers of the Association, as they are the authorised representatives of the association. The authority of the voluntary management committee flows from the constitution and rules because every member agrees to those when they sign up as a member. This leaves the office holders as agents (and not trustees) for all the members.
To clarify further, trustees hold legal title to trust property and the answer to the question whether a lease agreement can be considered legal title is no – again in my view after having studied this extensively and the help of AI in answering some of my questions, because:
A lease agreement is a temporary arrangement that grants the tenant the right to occupy and use the property for a specific period, usually in exchange for rent. The landlord, however, retains ownership of the property, and the tenant does not acquire any ownership rights. The lease agreement is a contractual agreement that can be terminated or modified by either party, whereas legal title to the property is a permanent and transferable right.
Key differences:
With regards the need to register the lease agreement with The Land Registry, there should be no need for registration, for two reasons:
1. This is only a requirement if the lease agreement between an association and the council were a commercial lease, which it is not. The reason that a lease agreement between an allotment and the council is not typically considered a commercial lease is that:
In contrast, commercial leases are typically used for business purposes, such as renting commercial property for office or retail space and are governed by different laws and regulations than allotment letting agreements.
Such a Lease Agreement with the Council is therefore an Equitable Lease created under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 and not a Legal Lease created under section 54(2) of the Law of Property Act 1925.
2. Whilst the Land Registration Act 2002 sets out the requirements for registration of leases {Practice guide 25: leases – when to register – GOV.UK}, it explains that only a lease for a term of more than 7 years must be registered with The Land Registry. Even if a lease is not registered with The Land Registry and therefore may not be a valid legal lease, it would still take effect as an equitable lease.
Usually, if there are specific periods mentioned in a lease with the Council, for example a lease of 21 years, then there would be a break clause stating something like “The tenant may determine the lease on the 7th or 14th anniversaries of commencement of the Lease”. This being the case, the length of the lease would not exceed 7 years and a lease of 7 years and less does not need to be registered with The Land Registry in any case.
Therefore, there does not seem to be a legal requirement for such a lease to be registered. The Land Registration Act 2002, however, does provide a framework for the registration of an interest in registered land. The Act allows for the creation of a notice in the register to protect a person’s interest in a property, in this case the interest of the association.
Therefore, if an allotment association would like to protect their beneficial interest in the land, then they can send the required forms (including the “Notice of Claim to a Beneficial Interest” (Form AN1) and the “List of Documents” (Form AP1), to the Land Registry asking that a notice be entered on the Title Register of the property, preventing the loss of interest in case the property is sold or transferred without their knowledge or consent.
With regards the said request for Trustees to register with HMRC, as you mentioned, as a Trust or as Trustees of the Association, it is my view, that that there is no such lawful requirement. This may be a legal requirement, but an unincorporated association is not considered to be a legal entity, it is a family of members, who have agreed rules between themselves and have appointed representatives to speak and act on their behalf.
Also based on the clear definition of what a Trustee is, an unincorporated association does not have any Trustees, as there is no property, for which they hold legal title.
The argument being made is that the representatives of an association are ‘holding’ money for the association. However, everything an association owns, this includes the funds paid to the association is owned by all members jointly and all the members jointly are responsible for the actions of the Association as well. No funds can or should be spent without prior agreement obtained from the membership at an annual AGM, at which stage a budget should be presented, spending made accounted for and a forecast prepared and shared as well, on which basis the annual plot fees and any larger amount of spending is to be agreed in advance as well. It should further also be made clear in the Constitution, what would happen to the funds jointly owned by the Association, in case the Association would cease the exist, for example if the Council were to give notice and sell the land. The Constitution and rules of the Association are critically important to the running of the Association and should be read and acknowledged by any new member joining and should also be sent to each member again at time the invitation for the annual AGM Meeting is sent out.
The below may also be helpful:
As there was previously no statutory definition of an unincorporated association, it has fallen on judges to define them. In the leading case, Conservative and Unionist Central Office v Burrell, Lord Justice Lawton defined an unincorporated association as:
“Two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and upon what terms, and which can be joined or left at will.
The essential elements are thus (i) that there exist members of the association; (ii) that there is a contract binding them inter se (i.e., multilaterally, binding each one of the members to every one of the other members); (iii) that they have a common purpose which is not business; and that (iv) there must have been a moment in time when a number of persons came together to form the association (although those persons need not be the present members).”
It is therefore important to realise, that the assets, belonging to the association as a whole would, in case the association ceases to exist, need to be distributed according to the rules and constitution of the allotment association. It is for this same reason, that any spending by the committee is also to take place in accordance with the rules and constitution of the association, as these are funds, that belong to the members jointly.
I have therefore recently informed our Council that, in my view, their assumption, that all allotment sites have trustees who sign the lease on behalf of the association, is incorrect, as it is the authorised representative of the association, who signs the lease in his / her position as acting officer. Our allotment association, being a private membership association, is owned and controlled by our members and does not have any trustees.
A response, which is a bit longer than I had planned, but hopefully there is some information in there that will assist you (and others with similar queries perhaps) in your research and your own decision making process.
we are a small allotment association do we have to register trustees and who to
It depends on how the site is managed, do you have a lease? if you do, it should state if you need trustees.
We own our land is it necessary to register trustees with authorities or can we just appoint them and put it up as a notice
You may not need trustees, how is your allotment association set up?
Just a committee chairvice chair secretary treasurer and a few members that help out
You say you own the land, in whose name is it registered, the groups or an individual? It would be easier if you email me directly, iangardiner@sky.com
Can a trustee who has left the allotment still continue with his duties?
Yes they can, if they want to. They can be asked to step down if that is what the committee wishes. When a trustee steps down, they must do so in writing as they have signed the lease on behalf of the association.
Our Committee as requested a allotment holder to leave due to harassing other allotment holders. Despite this request he refuses to leave. The Committee changed the gates closed but he as cut the chain and lock off. Is there anything we can do?
Thanks
Hi Susan, Can you email me at iangardiner@sky. com
Hi Sylvia, Can you tell me where you allotment is?
Our allotment was gifted over a hundred years ago from a lady farmer for the good of local people to use as an allotment. Our trustees have registered the land in their names and believe that they own the land and say if compulsory purchased they and only they would benefit. Can this be correct.
Hi Silvia, I cannot comment without knowing more about the situation. If you would like to email me with more information, my email is iangardiner@sky.com
Thanks for your reply. I have been an allotment holder for nearly 20 yrs and consider it an asset for the community. The allotment is well run by the committee and I have no complaints in that department. When I first joined I was told that all allotment holders were share holders therefore if sold for any reason all would get a share. It is only recently that I have found out that three allotment holders have made themselves Trustees and have put their names on the land register and was told by one of them that (hopefully in the unlikely event) that the land was sold they would be the beneficiaries. The Trustee said that the money would be turned over the the society but I don’t think there is any documentation to back this up. I will make enquiries and let you know what I can find out. Sylvia Sanderson