Mobile Homes Act Frequently Asked Questions
Mobile Homes Act Frequently Asked Questions
Both the Mobile Homes Act itself, and park home law in general, can be something of a minefield for the unwary. What is more, most solicitors have little specialist knowledge of this important area of the law.
1. “I have recently bought a mobile home park, and none of the residents have written statements. What should I do?”
The statutory position
Every site owner has a statutory duty to provide every occupier with a written statement of terms. For agreements which started after 18 January 2005, this statement should have been provided to the occupier at least 28 days before they moved in. For agreements which started before that, the statement should have been provided within 3 months of the agreement starting.
If the park owner fails to provide a written statement, none of the terms of that statement are enforceable against the occupier. Because of this, it is essential that if a site owner becomes aware that any occupier does not have a written statement, he should supply the occupier with one as soon as possible. We would recommend that the new industry standard form of written statement, approved by both the NPHC and BH&HPA, be used.
If the occupier fails to abide by the terms of the written statement once it has been handed over, the site owner may apply to the Court for an Order requiring the occupier to do so. It is important that the owner acts quickly, though, as this application can only be made within 6 months from the date when the written statement is handed over. If the occupier is unhappy with any of the terms of the written statement, they can also apply to the Court within the 6 months to challenge them.
Finally, a resident can apply to the County Court at any time to force the owner to give them a written statement.
What if the terms are inadequate?
The 1983 Mobile Homes Act (as amended) set out a large number of statutory implied terms that will apply to all agreements, whether or not a written statement has been provided. But what if the parties have agreed no further terms?
Either party may apply to a Court at any time for a declaration as to the terms under which the occupier is entitled to station his park home, either where no formal agreement exists, or where the written statement is silent on a particular point. Generally speaking, the Court will be prepared to imply additional terms into the agreement where it is satisfied that all of the following conditions are met:-
- Where the term is “reasonable and equitable”;
- Where its inclusion is necessary in order to give “business efficacy” to the agreement; i.e. that without it, the agreement would not work properly;
- Where its inclusion is so obvious that it goes without saying;
- Where it is capable of clear expression; and
- Where it does not contradict any express term of the agreement.
What terms is the Court likely to imply into a Mobile Homes Act Agreement?
The case of Michael Wenman Ltd v McNeice & Elkin (2002, unreported) provided some helpful guidance as to which of the terms contained in the industry standard Mobile Homes Act Agreement the Court is likely to imply in a case where no written statement exists. The Court held in that case that the following terms were, and had always been, terms of the occupiers’ Agreement, even though they had never had a written statement:-
- A term that they must not do anything which would breach the terms of the owner’s Site Licence (normally Clause 3(h));
- A term that they must comply with the Park Rules from time to time in force (normally Clause 3(j));
- A term that they must not do anything which might cause a nuisance to the owner or other occupiers of the park (normally Clause 3(k)):
- A term that the owner may amend the Park Rules from time to time (normally Clause 4(b));
- A term that the owner must permit the occupiers quiet enjoyment on the pitch, provided they are not in breach of their Agreement (normally Clause 4(e)); and
- A term that the owner may increase the pitch fees from time to time (normally Clause 7).
Those are the minimum terms that the Court decided ought to be implied into every resident’s Mobile Homes Act agreement, and will apply even if there is no written statement.
2. “A resident’s home is in a poor condition. What can I do?”
The industry standard form of written statement contains an express term that a resident must keep his mobile home “in a sound state of repair and condition” at all times (normally Clause 3(e)). Most site licences and park rules also contain a condition that homes on the park must be kept in a reasonable state of repair.
- First, obtain a report from an independent expert surveyor, which will deal with the condition of the exterior of the home. It is important to remember that it is only the external appearance of the home that matters. The condition of the interior of the home is irrelevant. You should of course seek the resident’s permission before instructing the surveyor. The standard written statement allows the park owner access to the pitch (provided the owner has given at least 14 clear days’ written notice) to establish whether the occupier is in breach of the agreement.
- Once you have received your surveyor’s report, write to the resident to identify what repairs may be necessary to bring the home up to a satisfactory condition.
- You should also inform the resident that the condition of the home means that he is in breach of the terms of his written statement, and give him a reasonable period of time to carry out any necessary repairs.
- It is often helpful to ask your surveyor, when he prepares his report, what he would consider to be a “reasonable time” for the repairs to be carried out.
If the resident the fails to carry out the necessary repairs to the home within the reasonable timescale which you have set out, you would then be entitled to issue proceedings in the County Court to seek to terminate the resident’s Agreement on the ground that he is in breach of the covenant to repair. It is possible that the resident may then carry out the repairs before the hearing date. In that case, you would probably not be able to terminate the Agreement, but the later a resident leaves the repairs, the more likely it is that he will have to pay the Court costs.
You should note that the Court now has the power to adjourn any proceedings to allow an occupier to undertake repairs to the home, where it appears practical to do so and where the occupier genuinely intends undertake the repairs.
Finally, If the condition of the resident’s home is significantly worse than the general standard of other homes on the park, you might also be able to ask the Court to terminate the Agreement on the statutory ground that the condition of the mobile home means that it “is having a detrimental effect on the amenity of the site”.
To succeed, you would have to persuade the Court that the condition of the home in question is significantly worse than that of the majority of the other park homes on the site. This will be a question of fact for the Judge to consider in every case. This is normally shown by evidence comparing the condition of the home with that of other homes on the site, and the state of the site as a whole.
3. “A resident has sold his home without telling me. What can I do?”
Whenever a resident sells their park home, there are in fact 2 transactions that should take place at the same time. The first of these is the sale and purchase of the mobile home itself, which is a contract between the seller and the buyer. The second is the assignment of the occupier’s Mobile Homes Act Agreement, which is of course the document which entitles the resident to keep the home on the park. This is a 3-way transaction involving the seller, the buyer and the site owner.
What happens, though, if the resident sells his home without informing the site owner first?
Schedule I, Part I of the Act contains statutory implied terms, which apply to every Mobile Homes Act Agreement. Section 8 of the Schedule states that an occupier “shall be entitled to sell the mobile home and to assign the agreement to a person approved of by the [site] owner, whose approval shall not be unreasonably withheld” and “Where the occupier sells the mobile home, and assigns the agreement … the owner shall be entitled to receive a commission on the sale at a rate not exceeding such rate as may be specified by an order made by the Secretary of State”.
In the case of Michael Wenman Limited –v- Forsyth and Toby, the Court held that a number of principles emerge from the relevant case law. These are as follows:-
- where the written statement requires the prior approval of the site owner, there can be no lawful
- assignment of the agreement unless such approval was sought in advance;
- the site owner should be given a proper opportunity of considering his position; in other words, he must be given a reasonable time to consider the assignment and the prospective purchaser; and
- the site owner’s consent cannot be given retrospectively, even if he has no objection to the proposed buyer.
This case emphasises the importance of residents keeping site owners informed of prospective sales, and provides a warning to unwary purchasers, as if the site owner has not been given adequate notice, he can recover possession of the pitch, even where the buyer is an innocent party.
The 2004 Housing Act altered the procedure that both sides must follow whenever a sale/assignment of a park home takes place. The occupier must now give the site owner at least 28 days’ written notice of the details of the prospective buyer(s) and seek the park owner’s written consent to the sale/assignment taking place. This period of 28 days is intended to allow the site owner the opportunity to meet with the buyer and take references, before deciding whether to accept them.
If the seller fails to follow this procedure and sells the home without notifying the site owner, or fails to give at least 28 days’ notice, it is likely that the assignment to the buyer will be invalid.
It is vital that if confronted with this situation, the site owner should not do anything to indicate that he has accepted the new buyer as lawful assignee. In particular, no pitch fees, commission or other charges should be accepted.
4. “A resident has died, and his son/daughter wants to move in. Do I have to let them?”
The position where an occupier of a mobile home dies is covered by section 3 of the Act. If the resident was married, or had a member of their family living with them at the time of their death, that person automatically takes over the right to live in the home, whether or not they previously shared that right with the deceased or were named on the written statement.
Where a resident living on their own dies and has left a Will, the Will may specify what is to happen to the mobile home on the resident’s death. If there is no Will, the usual intestacy provisions will apply.
The deceased resident’s Mobile Homes Act agreement will not come to an end on their death, and the benefit of the agreement will pass to their executors, who have the same powers to sell the mobile home as the deceased had. However, they also take on the deceased’s responsibilities for the home, including paying the pitch fees and other charges, and keeping it in good repair. A site owner cannot seek to remove a home from the site simply because the owner has died.
The Act does not give either the executors or any of the beneficiaries any right to move into the mobile home or to live there, unless the site owner expressly agrees to this. The beneficiary also cannot give the home, or transfer the agreement, to a member of his family without the site owner’s consent.
5. “I have a difficult resident who refuses to pay his pitch fees. Can I cut off his water to force him?”
The short answer is – No!
Under Section 210 of the 2004 Housing Act, a site owner commits a criminal offence if:-
“(a) he does acts likely to interfere with the peace or comfort of the occupier or persons residing with him, or
(b) he persistently withdraws or withholds services or facilities reasonable required for the occupation of the caravan as a residence on the site
and (in either case) he knows, or has reasonable cause to believe, that his conduct is likely to cause the occupier to abandon the occupation of the caravan or to remove it from the site, or to refrain from exercising any right or pursuing any remedy in respect thereof”.
This section is designed to prevent harassment by a site owner who might try to cut off a resident’s services with a view to forcing them to sell their home to him, or to make the resident leave the site. It does not just cover the removal of services, but is wide enough to cover any act which may be intended to interfere with the occupier’s right to quiet enjoyment of their mobile home. When residents accuse site owners of “harassment” this is most commonly what they have in mind.
6. “I want to move a resident’s home to another pitch. How do I do this?”
The procedure for moving a resident’s home has been completely changed by the new Implied Terms. Paragraph 10 of the Implied Terms allows a park owner to re-site an occupier’s home to another pitch on the site, but only if:-
i. “the court is satisfied that the other pitch is broadly comparable to the occupier’s original pitch and that it is reasonable for the mobile home to be stationed on the other pitch for that period”. This means that in almost every case, the park owner must apply to the Court for permission to move the resident’s home to another pitch, apparently even if the occupier does not object. There is no guidance as to what the Court may regard as a “reasonable” basis for moving a home.
ii. The only exception to the above rule is where the site owner needs to move the home “to carry out essential repair or emergency works that can only be carried out if the mobile home is moved to the other pitch”. These are defined in the Act as:
“(a) repairs to the base on which the mobile home is stationed;
(b) works or repairs needed to comply with any relevant legal requirements; or
(c) works or repairs in connection with restoration following flood, landslide or natural disaster”.
If the site owner can prove that one or more of these reasons applies, he may move the home without a Court Order, and in fact need only give the occupier “as much notice (whether in writing or otherwise) as is reasonably practical in the circumstances” (paragraph 13).
iii. In both cases, the site owner must move the home to a “broadly comparable” pitch. There is no guidance in the Act of what this means. However, the clear sense is that the alternative pitch must be at least as large as the old pitch, and must be comparable in its facilities and amenities. Effectively, the proposed new pitch must, taking all things into account, be at least as good as the old one.
iv. The Act also provides that before a site owner can lawfully re-site a resident’s home, he must undertake to pay “all costs and expenses incurred in consequence of the requirement” to move the home. This does not just mean the costs involved in physically moving the home itself; it also covers incidental expenses that the resident may reasonably incur, such as removal and storage costs, overnight accommodation, and the cost of digging up and replanting shrubs and plants.
v. Finally, please note that if you are moving the home to carry out repairs to, or replacement of, the base on which the home is sited, the Court may order you to move the home back to the original pitch once the repairs have been completed.
7. “I have just tried to increase the pitch fees on my site. My residents are refusing to pay. What should I do?”
The procedure for dealing with annual pitch fee reviews has now been clarified by the new Implied Terms introduced from 1 October 2006.
The relevant sections appear at paragraphs 16-20 of the Implied Terms. First of all, paragraph 16 clarifies that a site owner cannot impose a pitch fee increase on his residents – if the residents do not accept the increase, then either side may apply to the Court to decide whether the proposed increase is fair.
Paragraph 17 sets out the procedure which must be followed each year, which is as follows:
- The site owner must write to every resident on the park, not less than 28 days before the date on which the increase is due to start, setting out the details of the proposed new pitch fee;
- If the occupiers agree the new fee within the 28 day period, it will come into force from the review date onwards;
- If the occupiers do not agree the new pitch fee, the old pitch fee will continue to apply until there is an agreement, or the Court makes an order changing it. Any application to the Court must be made by the site owner.
Paragraph 18 explains that the Court should have regard to certain factors when considering whether, and by how much, the annual pitch fee should change. These factors include:
- money spent by the site owner since the last review which has benefited residents of the site as a whole (provided (i) the site owner consulted the residents about the improvements in advance, and (ii) a majority of residents did not object to them);
- whether the condition of the site as a whole has deteriorated since the last review date; and
- The effect on the park of any legislation which has been passed since the last review date (except any legislation which may reduce the level of commission a park owner may charge on a sale).
Paragraph 19 says that the park owner may not pass on any costs which have resulted from an expansion of the park – it is assumed that this means a literal expansion, such as the park being extended or modified to take a larger number of homes.
Finally, Paragraph 20 says that where there is a dispute, the normal presumption that the Court will apply is that pitch fees should be increased by RPI, unless either party is able to show that they should be increased by a different amount, or reduced. This will be a question of fact in each case.