The courts have grappled with the issue of which breaches of covenant are remediable, and which are not, for years. In Telchadder v Wickland (Holdings) Ltd [2014] UKSC 57; [2014] PLSCS 304, the Supreme Court had to decide how to classify a breach of a covenant against anti-social behaviour; is such a breach remediable or not? The question arose in the context of possession proceedings between the owner and one of the occupiers of a mobile home park and was difficult to answer due to the intermittent, but disturbing, nature of the behaviour in question.
The occupier’s anti-social behaviour, which began soon after he signed the agreement with the site owner, resulted in the service of a notice under the Mobile Homes Act 1983, which enables a site owner to seek an order terminating an agreement with a residential occupier if the court is satisfied that the occupier has breached a term of the agreement and that he or she was given a notice to remedy that breach. The court must also be satisfied that the breach was not remedied within a reasonable time and that it is reasonable that the agreement should be terminated. In this case, the occupier modified his behaviour after receiving the notice, but, three years later, threatened fellow occupiers with violence.
What then was the position? Was the breach of covenant against anti-social behaviour remediable? If not, was it really necessary to serve a notice to remedy on the occupier before seeking an order to terminate the agreement? If, on the other hand, the breach was remediable, did the original notice to remedy suffice, or should the park owner have served a fresh notice before seeking to terminate the agreement? Or, to put it another way, did compliance with the original notice mean not simply a temporary pause, but ceasing the anti-social behaviour altogether and indefinitely?
The Supreme Court agreed unanimously that a breach of covenant against anti-social behaviour is, in principle, remediable if the mischief resulting from it can be redressed – for example, by apologising and refraining from repeating the offending behaviour. However, some breaches may be so serious that they cannot be remedied. What would the position have been then? The minority believed that a notice to remedy would be required in every case. However, the majority took the view that this would be nonsensical where a breach is irremediable.
Could the site owner rely on the previous notice to remedy served on the occupier? The court agreed that it could not. The majority accepted that the occupier’s good behaviour for a reasonable time had caused the previous notice to lapse, whilst the minority thought that a further notice should have been served because there was no causal or temporal link between the previous notice to remedy and subsequent breach.
In addition to being important to the owners and occupiers of mobile home sites, the decision provides useful guidance on the effect of breaches of covenants against anti-social behaviour in general. It reminds us that fewer categories of breach are now regarded as irremediable and highlights the importance of considering what notices are required, and what they should say, when seeking to terminate any agreement conferring rights to occupy land.
Allyson Colby is a property law consultant
