By Nicholas Dyson, Blacks Solicitors and Ibraheem Dulmeer, LEASE adviser
This article will appear in the February 2015 edition of Park Homes Magazine.
On 5 November 2014 the Supreme Court handed down judgment in the case of Telchadder v Wickland Holdings Limited [2014] UKSC 57.
In its judgment the Supreme Court considered the steps that a site owner should take in seeking to end an agreement between the site owner and the resident when the reason for doing so is the anti-social behaviour of the resident.
This case involved a park home resident, Mr Telchadder (“Resident”), who appealed a decision reached by Southend County Court on 17th August 2011 in which the Court granted the site owners, (Wickland Holdings Limited (“Wickland”) application to terminate the Resident’s Written Statement on the grounds of anti-social behaviour.
This case is the first Supreme Court decision that deals with park homes matters and may have far reaching consequences when it comes to a site owner’s applications to terminate park home agreements.
The facts
The Resident moved onto Meadowview Park (which was owned by Wickland) in 2006 and entered into an agreement with Wickland on 1st June 2006. The Resident did suffer from certain mental problems, had a mild learning disability and exhibited some autistic traits. However that was not held by the court to be significant.
On 31st July 2006, the Resident startled another resident on the site by jumping out at her from behind a tree, sporting camouflage and military combat clothing. In doing so, he breached the express terms in the Written Statement and also broke the park rules both of which stated the Resident could not be a nuisance or cause annoyance, inconvenience or disturbance to the site owner or other occupiers on the park. Following this incident, a notice was served on the Resident on 15th August 2006 by Wickland requiring the Resident to remedy the breach of the Written Statement and the rules by refraining from any further anti-social behaviour.
From mid-2006 to mid-2009 Mr Telchadder largely complied with the notice and although minor incidents occurred on the park during that time the court did not attach any significance to those incidents.
However, on 15th July 2009, the Resident told another resident on the site that two women had reported him for jumping out on them in the woods and that he was going to kill them. When this resident told the Resident to calm down he said he would kill him as well. This incident prompted Wickland to send a further letter to the Resident in which it stated that as a result of him harassing and intimidating other residents it would be applying to court to terminate the Resident’s Written Statement.
In September 2009 Wickland issued proceedings against the Resident seeking a termination of the Written Statement and possession of the pitch. The County Court held that the letter sent to the Resident in 2006 was a notice requiring him to remedy his breach of the Written Statement and that his behaviour in 2009 demonstrated non compliance with that notice. The County Court therefore terminated the Written Statement and evicted the Resident from the pitch.
The law
A site owner can only terminate a Written Statement in limited circumstances. Paragraph 4 of Chapter 2 of Part 1 of Schedule 1 to the Mobile Homes Act 1983 (“paragraph 4”) entitles a site owner to terminate a Written Statement if the County Court or First-tier Tribunal (Property Chamber) is:
- satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and
- it considers it reasonable for the agreement to be terminated.
The Court of Appeal decision
The Court of Appeal decision; Telchadder v Wickland (Holdings) Limited [2012] EWCA Civ 635, upheld the decision of the County Court by confirming that the letter of 15th August 2006 was a notice to remedy within the meaning of paragraph 4(a), above.
Notwithstanding the fact that the further breach of the Written Statement did not occur until 3 years later on 31st July 2009, the Court of Appeal held that the notice was continuing and that Wickland was not required to serve a new notice before issuing proceedings in September 2009.
It was held by the court that paragraph 4 required an initial breach, then a notice to remedy that breach and a failure to comply with the notice within a reasonable time. It was said that the notice served in 2006 was adequate and reasonable as the notice was seeking to achieve future compliance of continuing obligations where certain breaches had already occurred. The court also held that it was reasonable to terminate the agreement taking into account the Resident’s disability even though no disability discrimination was alleged.
The Supreme Court decision
The Supreme Court unanimously allowed the Resident’s appeal against the order to terminate his Written Statement.
It was held by the Supreme Court that paragraph 4 applies only to a breach that is possible of being resolved. The court determined that it would not make sense to require service of a notice to resolve a breach which it is not possible to resolve.
Therefore it was clear that the behaviour and conduct of the Resident could be resolved by him ie, by him refraining from committing any further anti social acts. The Court said, in order to decide if a breach can be resolved, a practical enquiry is required into whether the breach can be resolved. It may be in some circumstances that a breach is far too serious to be resolved. For those instances, notice of the breach would not be necessary.
Lord Wilson provides the leading judgment in the Supreme Court. Lord Wilson explains that in cases involving a negative obligation, the words “within a reasonable time” in paragraph 4, above, must be read as meaning “for a reasonable time”.
It was held in this particular case that the Resident had complied with the 2006 notice within a reasonable time through committing no further breach until July 2009, and that following that breach, a further notice should have been served on or after 15th July 2009. The site owner should therefore have served a fresh notice or in the alternative alleged that this breach was not possible of being resolved.
Implications of the judgment
Of course each application for the termination of a Written Statement will be looked at on its own merits. However, this landmark decision may have several implications:
- It is often difficult to ascertain what is possible or not possible of being resolved, but a site owner must do this before deciding to give notice to remedy under paragraph 4.
- For each and every breach that is possible of being resolved, this still may mean that this may lead to an application to terminate a park home owner’s agreement, if this is within a reasonable amount of time between breaches of the same nature.
- To err on the side of caution a site owner may wish to follow up with another notice, if a significant time has elapsed between the first notice and next breach.
This article is not meant to describe or give a full interpretation of the law; only the courts can do that. If you are in any doubt about your rights and duties then seek specific advice.
