Mobile Homes Act 1983 — Whether a written statement provided voluntarily by an owner after the expiration of three months from date of agreement has effect to bring into force the provisions of section 2 of the Act
second appellants, Mr and Mrs Charles Barton, are the owners of a site for
mobile homes which is protected under the Mobile Homes Act 1983 — The first and
second respondents, Mr and Mrs G Care, are occupiers of a mobile home on the site
and, since the 1983 Act came into force, they, and others with homes on the
site, entered into parol agreements in relation to their respective pitches —
Although the appellants failed to provide written statements in accordance with
section 1(2) of the Act within three months of each agreement, they voluntarily
provided written statements which included a term that the pitch fees would be
reviewed annually at a later date — In Lancaster County Court Judge Holt, in
dismissing the appellants’ applications, held that written statements which are
not provided within three months of an agreement do not bring into effect
section 2 of the Act — The appellants appealed
implied into every agreement whether or not there is a written statement —
Section 2(2) and (3) give the court power to imply additional terms, and to
vary or delete express terms, respectively, on the application of either party
within six months of the written statement — Section 1(5) gives the court power
to order an owner to provide a written statement if he has failed to do so —
The jurisdiction of the court under section 1(5) is invoked when a written
statement is provided following an order of the court under section 1(5) or given
voluntarily but late — Accordingly, the written statements given by the
applicants brought into effect section 2
No cases are
referred to in this report
This was an
appeal by Mr and Mrs Charles Barton from the decision of Judge Holt, in
Lancashire County Court, who had dismissed an appeal from a decision of
District Judge Jeffreys on the trial of a preliminary issue as to the validity
of written statements served by the appellants upon the respondents, Mr and Mrs
Care, under the Mobile Homes Act 1983.
Kim Lewison QC
(instructed by Tozers, of Exeter) appeared for the appellants; Robert Osman
(instructed by Ratcliffe & Bibby, of Heysham) represented the respondents.
Giving the
first judgment at the invitation of Parker LJ, STAUGHTON LJ said:
Mr and Mrs Barton are the owners of a caravan site at Morecambe in Lancashire.
It is a protected site within the meaning of the Mobile Homes Act 1983. Mr and
Mrs Care are occupiers of one of the caravans and other occupiers are also
respondents in these proceedings. Since the 1983 Act each of them entered into
an agreement with Mr and Mrs Barton for the right to keep a caravan on the site
in return for a periodical payment of what is called a pitch fee. The agreement
was not, it would seem, in writing. Nor do we know what the express terms of
the agreement were in the case of any of these occupiers; that does not arise
at the present stage of the proceedings. Perhaps they were merely terms that
the occupier should have the right to place a caravan on a particular pitch and
would pay a modest sum, such as £10 a week, by way of pitch fee.
Under the
Mobile Homes Act 1983 the owners ought to have given a written statement of the
terms of the agreement to each occupier, setting out certain other matters
which I shall mention in a moment, within three months after the agreement was
made. In some or all of
provided a written statement subsequently or at any rate have purported to do
so. This statement was late and whether it recorded the terms which had
actually been agreed is open to question. The statement when served included a
term that the pitch fee would be reviewed annually. The owners served their
late statements voluntarily and not because any of the occupiers had been to
the court and obtained an order that a written statement should be provided.
The question in this appeal is whether a statement provided in that way has the
effect of bringing into force certain provisions in section 2 of the Act. The
owners say that it does and the occupiers say that it does not. There was an
order in Lancaster County Court that this problem should be tried as a
preliminary issue. District Judge Jeffreys decided the issue in favour of the
occupiers and so did Judge Holt on appeal from that decision. So thus far it
has been held that a statement provided late, but without an order of the
court, does not have the effect of bringing into force section 2. The owners
now appeal to this court by leave of Beldam LJ.
I must now
refer to the relevant terms of the Mobile Homes Act 1983, Section 1(2)
provides:
Within three
months of the making of an agreement to which this Act applies, the owner of
the protected site (‘the owner’) shall give to the occupier a written statement
which —
(a) specifies the names and addresses of the
parties and the date of commencement of the agreement;
(b) includes particulars of the land on which the
occupier is entitled to station the mobile home sufficient to identify it;
(c) sets out the express terms of the agreement;
(d) sets out the terms implied by section 2(1)
below; and
(e) complies with such other requirements as may
be prescribed by regulations made by the Secretary of State.
(3) If the agreement was made before the day on
which this Act comes into force, the written statement shall be given within
six months of that day.
(4) Any reference in subsection (2) or (3) above
to the making of an agreement to which this Act applies includes a reference to
any variation of an agreement by virtue of which the agreement becomes one to
which this Act applies.
(5) If the owner fails to comply with this
section, the occupier may apply to the court for an order requiring the owner
so to comply.
Section 2(1)
provides:
(1) In any agreement to which this Act applies
there shall be implied the terms set out in Part I of Schedule 1 to this Act;
and this subsection shall have effect notwithstanding any express term of the
agreement.
(2) The court may, on the application of either
party made within six months of the giving of the statement under section 1(2)
above, order that there shall be implied in the agreement terms concerning the
matters mentioned in Part II of Schedule 1 to this Act.
(3) The court may, on the application of either
party made within the said period of six months, by order vary or delete any
express term of the agreement.
(4) On an application under this section, the
court shall make such provision as the court considers just and equitable in
the circumstances.
I should also
mention section 4:
The court
shall have jurisdiction to determine any question arising under this Act or any
agreement to which it applies, and to entertain any proceedings brought under
this Act or any such agreement.
In section
5(1) the court, for the purposes of England and Wales, is the relevant county
court.
Part I of
Schedule 1 sets out terms which are to be implied in every agreement within the
scope of the Act. Those terms deal with the following matters, which I take from
the cross-headings in the schedule: (1) duration of the agreement; (2)
termination by the occupier; (3) termination by the owner (that subheading is
for some reason omitted by the editor of Halsbury’s Statutes but it is
to be found in the Queen’s printer’s copy); (4) recovery of overpayments by the
occupier; (5) sale of mobile home; (6) gift of mobile home; and (7) resiting of
mobile home. Those are the topics upon which the Act lays down compulsory
implied terms.
Part II of the
schedule lists the topics upon which terms may be implied by the court under
the power in section 2(2) if the court considers it just and equitable to do
so. They are as follows:
1. The right
of the occupier to quiet enjoyment . . .
2. The sums
payable by the occupier in pursuance of the agreement and the times at which
they are to be paid.
3. The review
at yearly intervals of the sums so payable.
4. The
provision or improvement of services available on the protected site, and the
use by the occupier of such services.
5. The preservation
of the amenity of the protected site.
6. The
maintenance and repair of the protected site by the owner, and the maintenance
and repair of the mobile home by the occupier.
7. Access by
the owner to the land on which the occupier is entitled to station the mobile
home.
There are thus
three important provisions for present purposes in section 2. Section 2(1)
provides that the terms in Part I of the schedule shall be implied in every
agreement for stationing a mobile home on a protected site. There can be no
argument about that. It does not depend upon there being a written statement
and it overrides anything which the parties have agreed. Section 2(2) gives the
court power to imply additional terms on the topics mentioned in Part II of the
Schedule. But it can only be exercised:
on the
application of either party made within six months of the giving of the
statement under section 1(2).
The court has
no power to imply any terms under the Act and Part II of the schedule, save as
provided by that subsection.
The third
important provision is in section 2(3). The court may vary or delete any
express terms of the agreement. That power likewise can only be exercised:
on the
application of either party made within the said period of six months.
The question
for us to decide, as I see it, is whether the late provision of a statement,
more than three months after the making of the agreement, can be described in
the terms of section 2(2) as the giving of a statement under section 1(2). If
it can, the period of six months for either party to make an application under
section 2(2) or 2(3) begins to run when the late statement is given. If it
cannot, that period never begins to run and neither party can apply to the
court under those subsections.
One should, I
suppose, pause to look at the purpose of the Act to see if one can derive some
help on the point. In the ordinary way, one would not expect the owner of a
site to need to rely on the powers of the court under section 2. The owner
would generally be able to impose such express terms as he wishes when the
agreement is first made. I do not see at first sight why, within a period of
three months plus six months, he should wish to go to court to have further
terms implied or some of the existing terms varied or deleted. He should have
imposed the right terms in the first place. But it is possible, I suppose, that
circumstances may have changed even in the short period of nine months or that
the bargaining power was not wholly on the owner’s side. It is also distinctly
possible that the owner of a caravan site may not have known about, or may have
overlooked, the mandatory implied terms in Part I of the schedule. He may not
have taken legal advice. He may not have realised that the occupier was going
to obtain security of tenure. Only when that came to his attention may he have
realised that he ought to have provided for periodical review of pitch fees.
Indeed, it is possible that when the agreement was made, if it was before the
Act came into force, those implied terms would not have been applicable,
although there were earlier provisions in the Mobile Homes Act 1975. So one has
no clear guidance from the purpose of the Act as to whether the owner was to be
free to produce a voluntary statement at a late stage in order to trigger the
powers of the court in section 2.
But there is
one ground which leads me clearly to the conclusion that that is the effect of
the statute. The court has power in section 1(5) to require the owner to
provide a written statement if he has failed to do so in accordance with
section 1(2) or section 1(3). What was the purpose of that power? Mr. Osman, for the respondents, submits that
the only purpose of it was to enable the occupier to obtain a written document stating
what the owner alleged the agreed terms to be; or possibly, he says, there was
another purpose — to enable the occupier to come to court under section 4 for
the determination of a dispute as to what the agreed terms actually were. For
my part it seems to me that the occupier would have that power anyway, if there
was a dispute as to what the terms were, and that section 4 is not needed to
confer it.
In my
judgment, Mr Osman’s arguments on the effect of section 1(5) cannot be right.
That subsection must also bring into operation section 2, once the owner has
been ordered to provide a statement late and has done so. Otherwise, as Woolf
LJ pointed out in the course of the argument, the owner, by failing to serve a
statement initially, would deprive the occupier of the chance of coming to court
under section 2. That, in my judgment, cannot be right.
Before the
judge it was argued that if a late statement did not bring section 2 into
operation, it would be necessary for an application under section 1(5) to be
pursued to judgment, even when the owner was at that time willing to give a
statement. I am not sure that I am
to give a statement, there could be a consent order. But what does impress me
is that, once a statement has been provided pursuant to a court order, that
must surely enable the jurisdiction of the court to be invoked under section 2.
If that be right, as I hold it is, then the wording in section 2(2):
within six
months of the giving of a statement under section 1(2)
cannot be
limited to cases where a statement is given punctually in accordance with the
provisions of section 1(2). It must include a statement which in other respects
is the sort of statement referred to in section 1(2) but has been provided, not
within the time-limit, but pursuant to an order of the court. Those words must
also refer to a statement provided under section 1(3), which has a different
time-limit where the agreement was made before the Act came into force. So what
those words in section 2(2) evidently mean is, within six months of the giving
of the kind of statement which is referred to in section 1(2).
That being so,
a statement given voluntarily but late also brings section 2(2) and (3) into
operation. I would make a declaration to that effect in substitution for that
made by the district judge and the circuit judge. I am not happy merely to say
that the statement is valid, because I am not sure what is meant by saying
that, nor how far that may go. It seems to me that a statement certainly does
not conclusively determine between the parties what the express terms of the agreement
are; it merely asserts on the part of the owner what the owner says they are.
But for present purposes all we have to decide is whether a late statement
voluntarily given brings section 2(2) and (3) into operation.
I would
declare that it does and accordingly allow this appeal.
Agreeing, WOOLF
LJ said: In my view, the learned district judge and the judge were misled
as to the reason why the word ‘shall’ appears in section 1(2). The word ‘shall’
had to appear in section 1(2) so as to make it clear that the owner was under
the obligation to give a statement in accordance with that subsection. It was
not Parliament’s intention that he should have a discretion in the matter. It
would therefore have been wholly inappropriate to use the word ‘may’ and once
that is appreciated it is then clear as to what is the meaning of section 1(2).
The only problem is what is the consequence of non-compliance with section
1(2).
For the
reasons that Staughton LJ has indicated, when the Act is looked at as a whole
only one possible conclusion can be reached as to the effect of non-compliance
in relation to the time-limit. A notice which is served outside the time-limit
is effective for, in particular, triggering the relevant parts of section 2.
Any other result would mean, as Staughton LJ has indicated, that section 1(2)
could be used by an owner so as to prevent an occupier from having the rights
which Parliament intended him to have and in particular the right to go before
the court and obtain the additional benefits to which he would not otherwise be
entitled.
Also agreeing,
PARKER LJ said: The matter appears to me to be covered amply by the very
simple provision in section 1(5) that if the owner fails to comply with the
section the occupier may apply to the court for an order requiring the owner so
to comply. That envisages plainly that if the owner does not give his statement
within the period he can be ordered to comply. Having failed to provide it
within the period he cannot be ordered to provide it within the period.
Compliance must therefore mean delivery of a statement which substantially
contains the particulars which are set out in subsection (2) and no more. If,
therefore, the service of a statement pursuant to an order of the court is
sufficient to trigger the provisions of section 2, it is impossible to suppose
that Parliament intended that an owner who, being reminded that he had failed
to comply with the time-limit, promptly gave the statement which he ought to
have given the week before, should be precluded from proceeding under section
2.
I agree that
this appeal should be allowed and with the declaration proposed by Staughton
LJ.
Declaration
accordingly.
