Mobile home — Agreement between owner and occupier to station home on site — Assignment of agreement — Implied term — Statutory requirement that occupier should occupy mobile home as only or main residence (the implied term) — Whether occupation required to exist at date of application to court for possession or at date of hearing — Whether assignment effective — County court reaching conflicting decisions — Assignment effective if approval unreasonably refused before execution — Court of Appeal holding that occupation of home judged at date on which application heard and determined — On facts approval unreasonably refused before execution
Omar Parks was the owner of Beech Park, Chesham Road, Wigginton, near Tring, Hertfordshire, which was a protected site for purposes of the Mobile Homes Act 1983. E was the owner of the mobile home stationed on pitch 8 on that site, having purchased it for £21,500 on September 10 1988. He also became the assignee of an agreement between the previous owners and the predecessors in title of Omar Parks, under which he was entitled to station it on that pitch subject to the terms of the agreement and the payment of the pitch fee. It was agreed that that was an agreement to which section 1(1) of the 1983 Act applied and that by virtue of section 2(1) there was implied in it, among others, the term set out in Schedule 1, Part I, para 5 to the Act. The home was some 14 years old and required repairs. E agreed to carry them out within 12 months but the work took three years to complete. On July 25 1991, Omar Parks issued an application in Hemel Hempstead County Court seeking possession of pitch 8 on the grounds that E was not occupying the home as his only or main residence. Judge Eric Stockdale found that E was not occupying the home as either his only residence or his main residence before September 1 1991, but that he had been occupying it as his only residence from and after that date, ie the occupation required by the implied term did not exist at the date of the application to the court but did exist at the date on which it was heard and determined. The judge then took the view that it was the date of the application to the court at which the required occupation had to exist. He made an order for possession accordingly. E appealed against that order, which was stayed by agreement in the meantime.
Ron Grundy was the owner of Woodlands Park, Wash Lane, Allstock, Cheshire, which was also a protected site for the purposes of the 1983 Act. On December 22 1985, B became the owner of the mobile home stationed on the pitch known as 22 West Site. He acquired it by way of gift from his father, who had stationed first one and then another mobile home on that pitch since 1976. B also became assignee of an agreement of January 1 1976 made between his father and the predecessors in title of Ron Grundy under which he was entitled to station a mobile home on 22 West Site, subject to the terms of the agreement and the payment of the pitch fee. Again it was agreed that that was an agreement to which the 1983 Act applied and that the implied term was implied in it. The nature of B’s occupancy of the home between December 1985 and March 1990 was unclear. However, in March 1990 he ceased to occupy it at all and between then and August 1990 it was unoccupied. On April 4 1990 the site was acquired by Grundy.
In August 1990, without the knowledge or approval of Grundy, B’s daughter, V, moved into the home. She had since occupied it as her only residence. On December 3 1990 Grundy commenced proceedings in Northwich County Court against V seeking possession of 22 West Site on the ground that she had wrongfully occupied it and was therefore a trespasser. It was agreed that Grundy was thus far correct, since V had not become the assignee of the 1976 agreement. In January 1991 having sought but not received the consent of Grundy, B gave V the mobile home and assigned to her by deed the benefit of the 1976 agreement. Grundy then issued an application in Northwich County Court against B seeking a declaration that it be at liberty to possession of 22 West Site, on the grounds that he was not occupying the home as his only or main residence. Both sets of proceedings were heard and determined by Mr Recorder Rees, who dismissed them with costs and made a declaration that the 1976 agreement enured for the benefit of B. Grundy appealed in both cases.
Schedule 1, Part I, para 5 to the 1983 Act provides that the following term is implied in any agreement to which the Act applied: “The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the court is satisfied that the occupier is not occupying the mobile home as his only or main residence” (the implied term).
Held E’s appeal was allowed and the order for possession discharged. Grundy’s appeals were both dismissed.
1. The critical words in the implied term were: “the court is satisfied that the occupier is not occupying”. If those were the only words on which the question depended, it could not be doubted that the occupation must be judged as at the date on which the application was heard and determined. Such would be the plain and ordinary meaning assigned to the words by the double use of the present tense. The court could not be presently satisfied on the present existence of a given state of facts before an application was heard.
2. The words “on the application of the owner” did not displace that plain and ordinary meaning. The site owners’ entitlement under para 5 did not arise unless and until the court was satisfied in the terms of that paragraph, a satisfaction which could be declared only if and when an application was made to it. Since the site owner would be the party who wanted the declaration to be made, it was natural to assume that the application would be made by him. The words “on the application of the owner” did no more than recognise that state of affairs. Accordingly, the occupation of the home had to be judged as at the date on which the application was heard and determined.
3. In Grundy the further question arose whether the assignment to V in January 1991 was effective so that the 1976 agreement enured for her benefit at the date of the hearing and determination of the application in November 1991. V was a member of B’s family so that he was entitled to make the gift and assignment to her and the owner’s approval was not to be unreasonably withheld: see Schedule 1, Part I, para 9.
4. The 1976 agreement was “lawfully” assigned to V under section 3(2) if Grundy’s approval were sought and unreasonably refused before the assignment was executed. The single issue was whether approval was impliedly refused before the assignment. If it was not, then notwithstanding the subsequent express refusal, the agreement was not “lawfully” assigned.
5. The question whether there was an implied refusal depended on whether Grundy was given a reasonable time to consider the matter and give or withhold consent. In all the circumstances and bearing in mind the hostile state of play between the parties at that time, the seven days specified by B’s solicitors in which a reply was expected was a reasonable period to give or refuse approval. Therefore, the 1976 agreement was lawfully assigned to V by the assignment of January 1991.
Andrew Arden QC and Julian Lynch (instructed by Lance Kent & Co, of Berkhamsted) appeared for E; Richard Quenby (instructed by Dixons, of Northwich) appeared for B; and Timothy Howard (instructed by Tozers, of Exeter) appeared for Omar and Grundy.
