Take no notice

Thursday 27 November 2014

In the recent judgment in Telchadder –v- Wickland Holdings Limited [2014] UKSC57 the Supreme Court provided important guidance on the steps site owners should take before issuing court proceedings against a resident to gain possession of a pitch. The principal point to be taken from this case is that a site owner should serve a notice upon a resident where there is a breach of the Written Statement and that notice should, where possible, provide the resident with a reasonable time in which to remedy the breach.

Facts

Mr Telchadder was the occupier of a mobile home on Meadowview Park, a residential park in Essex, owned by Wickland Holdings Limited (“Wickland”). Meadowview Park has around 200 pitches and the majority of its residents are elderly. Mr Telchadder moved onto the site in 2006 and a Written Statement was entered into between Mr Telchadder and Wickland on 1 June 2006.

In accordance with the Mobile Homes Act 1983 certain terms were implied into the Agreement. The relevant implied term in this case is the implied term which allows a site owner to terminate an agreement with an occupier only if a Court is satisfied that:

1. The occupier has breached a term of the agreement and after service of a notice to remedy the breach, has failed to do so in a reasonable time frame; and
3. It is reasonable to terminate the agreement.

In addition the Agreement contained certain express terms. Under those express terms Mr Telchadder agreed not to act in a way which was an annoyance or would disturb other residents on the site.

Meadowview Park is also governed by a set of site rules as is common on residential sites. Those rules stated that residents were not permitted to have offensive weapons on site or to carry other objects on site which may cause offence.

In mid 2006 Mr Telchadder, who was described by the Court as an eccentric man, had startled a resident when he jumped out at her from behind a tree on site whilst dressed in camouflage clothing. That resident complained to Wickland who sent Mr Telchadder a letter on 15 August 2006 explaining that he must not engage in behaviour like that on the Park. The letter stated that if Mr Telchadder ignored the letter Wickland would have no alternative but to apply to Court to terminate the Agreement.

From 2006 to 2009 Mr Telchadder largely complied with the terms of the Agreement and although a small amount of letters were sent to him by Wickland in connection with minor incidents the Court attached no significance to them.

However in mid 2009 an incident occurred on the park in which Mr Telchadder was alleged to have threatened to kill three residents and brandished a stick in a threatening manner. This behaviour prompted Wickland to write to Mr Telchadder on 12 August 2009 to inform him that because he had been harassing other residents it would now be making an Application to Court to terminate the Agreement. Crucially that letter did not:

1. Provide Mr Telchadder with an opportunity to remedy the breach of the Agreement within a reasonable period of time; or
3. Explain to Mr Telchadder that Wickland considered the recent incident (in which Mr Telchadder threatened to kill other residents) to be sufficiently serious that it was irremediable.

Decision

The Court at first instance found that the letter sent in 2006 was a notice requiring Mr Telchadder to remedy his breach of the Agreement by refraining from anti-social behaviour on the site. Mr Telchadder had failed to comply with that notice (as he had committed a further act of anti-social behaviour in 2009) and in the circumstances it was reasonable to terminate the Agreement.

Mr Telchadder appealed that judgment on the basis that he had complied with the 2006 notice by not committing any anti-social acts on the Park for a period of three years. It was his position that Wickland should have served another notice on him in 2009 requiring him to remedy his latest breach of the Agreement and providing him with a reasonable time in which to do so before Court proceedings were issued. The Court of Appeal disagreed with Mr Telchadder and held that the 2006 notice was continuing and there was no requirement for Wickland to serve a further notice before issuing proceedings.

However the majority of the Supreme Court disagreed and held that a further notice should have been served. In its judgment the Supreme Court came to the following conclusion:

1. It is possible for a resident to remedy the breach of a Written Statement where the breach in question considers anti social behaviour (which requires someone to refrain from doing something as opposed to requiring them to do something such as pay a pitch fee). However some breaches of that nature may be sufficiently serious to be incapable of remedy.
3. If a resident is served with a notice by a site owner requiring him to remedy a breach of the Written Statement in circumstances of anti-social behaviour that notice is complied with by the resident not committing any further breaches for a reasonable time.
5. What constitutes a reasonable time will depend on the facts of the case.

Comment

Mr Telchadder was therefore successful in his appeal and remains a resident on the Meadowview Park. Practically speaking the relations between Mr Telchadder and Wickland are likely to be considerably strained and throughout its judgment the Court emphasised the need for good neighbourly conduct on mobile home sites where the proximity of living is closer than usual.

The important point to take from this case is that as a site owner you should always serve a notice upon a resident in the event of a breach of the Written Statement. In that notice you should clearly state what the resident has done that is in breach of the Written Statement and you should refer to the specific term of the agreement. That notice should clearly state that the resident is required to remedy the breach within a reasonable period of time, failing which you will be left with no alternative but to issue proceedings to terminate the Written Statement.

If a notice has already been served but a further incident occurs it would be wise to serve a further notice.

Unfortunately the position remains unclear as to what would constitute a sufficiently serious breach permitting a site owner to launch into legal proceedings without serving a notice on the resident. A site owner would therefore be best placed to always serve a notice on a resident and if it considers that the breach in question is irremediable to say so in the notice.
Blacks Solicitors LLP has also prepared a joint article with the Leasehold Advisory Service on the importance of this decision. The joint article can be found here.