Legal notes James Driscoll asks whether an occupier can remedy a breach of an antisocial behaviour covenant?
Key points
- Breaches of negative as well as positive obligation may be remedied
- But there is no obligation for the site owner to give notice under the Act in the case of an irremediable breach
In Telchadder v Wickland (Holdings) Ltd [2014] UKSC 57; [2014] PLSCS 304 the Supreme Court considered an appeal on issues relating to antisocial behaviour in the context of occupancy agreements under the Mobile Homes Act 1983 (“the 1983 Act”). Since the issues include whether there are certain breaches of an obligation that are incapable of remedy and whether an owner should give notice in all cases (including irredeemable breaches), the reasoning and the conclusions may have a wider relevance beyond mobile homes to property law generally.
Mobile homes
In England alone, it has been estimated that there are some 85,000 “park homes” located on 2,000 sites. This is the modern term for a caravan or mobile home that is placed on a residential site and used as the home owner’s main or only residence. There are also many households that use their homes for travel as well as a residence (gypsies and travellers). What all these residents have in common is that they usually own their home and they purchase the right to keep it on a pitch on a site. The owner of a mobile home pays for the hire or rent of the pitch on which the home rests and they will usually have access to other facilities provided by the site owner.
The legal position of park home owners is unusual. They own their home, though it is not physically attached to the pitch (ground) on which it stands. In other words, the resident owns the home as a chattel and pays the site owner a “pitch fee” for the right to station the home on that particular pitch.
In some respects this form of housing resembles a landlord and tenant relationship. In other respects it is a type of owner-occupation. The relationship between site owners and those who park their homes used to be unregulated. Now, under the 1983 Act, various rights have been accorded to the occupiers and some restrictions have been placed on site owners.
One of the effects of the Act is that certain terms are to be implied into agreements, including a term that the site owner may terminate the agreement if: (a) the occupier has broken a term in the agreement and having been given a notice to remedy the breach, fails to do so within a reasonable time; and (b) it is reasonable to make a possession order (schedule 1 to the Act, paragraphs 4, 5 and 5A).
In the event of disputes, some issues fall within the jurisdiction of the county court; others now fall within the jurisdiction of the First-tier Tribunal (Property Chamber).
Telchadder
In this case, Mr Telchadder had an agreement to park his home on a site that was subject to the 1983 Act. One of the terms of the agreement was that the occupier would not act in such a way that would disturb other occupiers on the site.
Following an incident in July 2006, the site owners wrote to Mr Telchadder complaining of his misbehaviour and warning that any further occurrences would lead to a court claim for possession. More than three years later there was a further incident that led the owners to seek to terminate the agreement and to seek possession. They did not serve a further notice.
There were other incidents too that led the county court, which decided that the occupier had broken the agreement, to find that it was reasonable to order possession.
Appeal against the possession order
Mr Telchadder’s appeal against the order was dismissed by the Court of Appeal, but the Supreme Court allowed it. The Justices reached their decision unanimously but differed on some aspects of the decision. Lord Wilson delivered an opinion that was supported unanimously by Lady Hale and Lord Toulson. Lord Carnwath (supported by Lord Reed) supported the result but differed on some issues.
One issue that divided the Justices was over the correct interpretation of paragraph 4(a) of the 1983 Act, which, as noted above, refers to the court being satisfied that the occupier has breached a term and after service of a notice to remedy the breach does not do so within a reasonable time. It does not refer to the breach being capable of being remedied (unlike the provision in the Mobile Homes Act 1957, which the 1983 Act replaces, or the well-known forfeiture notice provision in section 146 of the Law of Property Act 1925). Lord Wilson concluded that the absence of these words did not mean that a notice needed to be given for a breach that was incapable of remedy: to do so “would be nonsensical” [20]. In other words, the notice requirements in paragraph 4 of the 1983 Act apply only to breaches that are capable of remedy.
He went on to consider what types of breaches could in principle be capable of remedy. A breach of a positive obligation, such as to insure the mobile home, would ordinarily be capable of being remedied. But what of a breach of a negative obligation? Lord Wilson concluded that such a breach could be remedied if the mischief resulting from the breach had been redressed. As three years had elapsed since the notice given, it was reasonable to conclude that the occupier had remedied the breach in this case. Lord Wilson concluded that an occupier could in principle remedy a breach of a covenant against antisocial behaviour, though some such breaches may be so serious as to be irremediable.
A divided decision
Lord Wilson helpfully summarised the effects of the decision. First, three of the Justices (Lord Wilson, Lady Hale and Lord Toulson) concluded that in the case of a breach of an agreement that cannot be remedied there is no requirement to serve a notice to remedy it. Second, all seven of the justices agreed that the occupier’s appeal against the possession order should be allowed; third, three of the justices (Lord Wilson, Lady Hale and Lord Toulson) concluded that breach of a negative covenant, such as a covenant against antisocial behaviour, may be remedied if the mischief that resulted from it can be redressed.
They concluded that the occupier remedied the 2006 breach by not committing any more breaches until July 2009. (In contrast, Lord Carnwath concluded that compliance with a notice to remedy antisocial behaviour continues indefinitely, so there must be a causal remedy between the notice and the subsequent breach).
Professor James Driscoll is a solicitor and a writer
