Mobile Homes Act 1983 — Owner entitled to terminate mobile home agreement where occupier not occupying the mobile home — Whether test of occupation to be judged at date when owner applied to court or date when application heard and determined
Ltd v
Elkington, Omar Parks Ltd is the owner of Beech Park, Chesham Road, Wigginton,
Tring, Hertfordshire, a protected site for the purposes of the Mobile Homes Act
1983 — Mr Victor Elkington is the owner of a mobile home on pitch 8 on the site
which he purchased for £21,500 on September 10 1988 — He also became the
assignee of an agreement between the previous owners of the home and the
predecessors in title of Omar Parks, under which he was entitled to station the
home on pitch 8; the agreement included the term implied by the 1983 Act,
Schedule 1, Part I, para 5; a term that the owner is 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 — Because the home required repair, Mr Elkington took some three
years to make the repairs at a cost of £12,500 — On July 25 1991 Omar Parks
issued an application in the county court seeking the possession of pitch 8 on
the ground that Mr Elkington was not occupying the house as his only or main
residence — In Hemel Hempstead County Court, Judge Stockdale found that Mr
Elkington had not been occupying the mobile home as his only residence at the
date of the application, but had been at the date on which the application was
heard and determined — The judge held that the date of the application to the
court was the date at which the required occupation had to exist and made an
order for possession accordingly — Mr Elkington appealed
(Melbourne) Ltd v Boneheyo, Ron Grundy was the owner of Woodlands Park, Wash Lane,
Allostock, Cheshire, a protected site under the 1983 Act — On December 22 1985
Mr Clive Boneheyo became the owner of the mobile home on pitch 22, West Site,
acquired by way of a gift from his father — Mr Boneheyo also became the
assignee of an agreement dated January 1 1976 and made between his father and
the predecessors in title of Ron Grundy — The implied term under the 1983 Act
applied to the agreement — Between March and August 1990 Mr Boneheyo’s mobile
home was unoccupied, but in August 1990, without the knowledge or approval of
Ron Grundy, Mr Boneheyo’s daughter, Miss Valerie Boneheyo moved into the home
which, she has since occupied as her only residence — On December 3 1990 Ron
Grundy commenced proceedings in Northwich County Court against Miss Boneheyo
seeking possession of the pitch on the ground that she had wrongfully occupied
it and was therefore a trespasser — On January 15 1991 solicitors acting for
the Boneheyos sought Ron Grundy’s consent to an assignment of the agreement to
Miss Valerie Boneheyo, and no reply having been received by January 24 1991 Mr
Boneheyo assigned the agreement to Valerie Boneheyo — Meanwhile on January 17
1991 Ron Grundy issued an application in Northwich County Court against Mr
Boneheyo seeking a declaration that it be at liberty to terminate the agreement
and for an order for possession on the ground that he was not occupying the
home
the applications with costs and made a declaration that the agreement enured
for the benefit of Miss Boneheyo — Ron Grundy appealed both cases
Parks Ltd v Elkington — The critical words in the term implied by
the Mobile Homes Act 1983, Schedule 1, Part I, para 5, are ‘the court is
satisfied that the occupier is not occupying’ — It is to be doubted whether
these words were intended to have any temporal significance; if they were, they
can only refer to the time when the application is heard and determined — It is
impossible to give them the much greater temporal significance of requiring
that the occupation of the home be judged as at the date on which the
application is made — The appeal was allowed and the order for possession
discharged
(Melbourne) Ltd v Boneheyo — The recorder
was entitled to find in favour of Miss Boneheyo holding that the occupation of
the home had to be judged as at the date on which the application was heard and
determined — Ron Grundy had been given a reasonable period of seven days from
January 16 1991 to consider the application for consent to the assignment of
the agreement and to give or refuse its approval — Accordingly the assignment
on January 24 1991 was effective notwithstanding that it occurred prior to Ron
Grundy’s express refusal of January 25 1991 — The appeals were dismissed
The following
cases are referred to in this report.
Benninga
(Mitcham) Ltd v Bijstra [1946] KB 58
Betty’s
Cafes Ltd v Phillips Furnishing Stores Ltd [1959]
AC 20; [1958] 2 WLR 513; [1958] 1 All ER 607; [1958] EGD 92; (1958) 171 EG 319,
HL
Jessop v Hanwell Unreported, November 4 1988
Lewis
& Allenby (1909) Ltd v Pegge [1914] 1 Ch
782
Wilson
v Flynn [1948] 2 All ER 40
In Omar
Parks Ltd v Elkington the respondent, Mr Victor Elkington appealed
against the decision of Judge Stockdale in Hemel Hempstead County Court, who
had allowed an application by the applicant, Omar Parks Ltd, for an order for
possession.
In Ron
Grundy (Melbourne) Ltd v Boneheyo; Same v Boneheyo Ron Grundy
(Melbourne) Ltd appealed against the decision of Mr Recorder Rees in Northwich
County Court by which he dismissed the application of the appellant for
declarations and an order for possession of pitch 22 West Site, Woodlands Park,
Wash Lane, Allostock, Cheshire, against the respondents, Mr Clive Boneheyo and
his daughter, Valerie Boneheyo.
Andrew Arden
QC and Julian Lynch (instructed by Lance Kent & Co, of Berkhampstead)
appeared for the appellant respondent, Mr Victor Elkington; Richard Quenby
(instructed by Dixons, of Northwich) appeared for the respondents, Mr Clive
Boneheyo and Valerie Boneheyo; Timothy Howard (instructed by Tozers, of Exeter)
represented the respondent applicant, Omar Parks Ltd, and the appellant
applicant, Ron Grundy (Melbourne) Ltd.
Giving
judgment, NOURSE LJ said: By the Mobile Homes Act 1983, Schedule 1, Part
I, para 5, the following term is implied in any agreement to which the Act
applies:
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 principal
question arising on these appeals is whether that term requires the occupation
of the home to be judged as at the date on which the site owner applies to the
court or the date on which the application is heard and determined. Opposite
decisions have been given in the courts below. So now we must resolve the
conflict.
This is the
only question arising on the appeal in Omar Parks Ltd v Elkington.
It is therefore convenient to consider that case first. Omar Parks Ltd (‘Omar
Parks’) is the owner of Beech Park, Chesham Road, Wigginton, near Tring,
Hertfordshire, which is a protected site for the purposes of the 1983 Act. Mr
Victor Elkington is the owner of the mobile home stationed on pitch 8 on that
site. He purchased it for £21,500 on September 10 1988. He also became the
assignee of an agreement between the previous owners of the home 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 is agreed that that was an agreement to which the 1983 Act
applied — see section 1(1) — and that by virtue of section 2(1) there was implied
in it, among others, the term set out in para 5 of Part I of Schedule 1 (‘the
implied term’). The home was some 14 years’ old and required repairs. Mr
Elkington agreed to carry them out within 12 months. However, for reasons which
need not be explored, it took him the best part of three years to complete the
bulk of them at a cost of about £12,500.
On July 25
1991 Omar Parks issued an application in Hemel Hempstead County Court seeking
possession of pitch 8 on the ground that Mr Elkington was not occupying the
home as his only or main residence. The application was heard and determined by
Judge Stockdale on November 22 1991. The judge found that Mr Elkington was not
occupying the home either as his only residence or as his main residence before
September 1 1991, but that he had been occupying it as his only residence from
and after that date; in other words, that 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. No appeal has been
brought against that finding. However, the judge was of 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. Mr Elkington now appeals
against that order, which has been stayed by agreement in the meantime. The
outcome of the question depends on the true construction of the implied term
read with the other provisions of the 1983 Act. Part I of Schedule 1 sets out four
implied terms entitling the occupier or the site owner, as the case may be, to
terminate the agreement, the others being set out in paras 3, 4 and 6. The term
set out in para 3 entitles the occupier to terminate the agreement by not less
than four weeks’ notice in writing. Those set out in paras 4 and 6 entitle the
site owner to terminate the agreement, in the former case ‘forthwith’ and in
the latter at the end of ‘a relevant period’, if, ‘on the application of the
owner, the court is satisfied’ etc.
The critical
words in the implied term are ‘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 is 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
cannot be presently satisfied of the present existence of a given state of
facts before an application is heard. But it is argued that the words ‘on the
application of the owner’, coupled with the absurdities flowing from the
contrary view, displace this plain and ordinary meaning. That argument was
accepted by Judge Stockdale, the essence of whose decision was expressed thus:
Mr Blohm says
it must relate to the date of the application, otherwise all the site owner can
do is come to the court and say: ‘I’ve no idea if I will succeed on the day of
the hearing, but will the court please fix a date’. No one will know until the
evidence is given on the day of the hearing whether the respondent is occupying
or not. It doesn’t matter if he moved in on the day of the hearing. There would
be chaos. I find this interpretation offensive — it is a strange way for the
court to proceed. It would be strange if the court had to deal with tentative
applications — ‘fix a date, we will then see if we have a case or not’.
Generally speaking, the courts determine disputes in existence on the day
proceedings are commenced.
In my judgment
these considerations are not sufficient to displace the plain and ordinary
meaning of the critical words. In contrast with the occupier’s entitlement
under para 3 to terminate the agreement by notice, the site owner’s entitlement
under para 5 does not arise unless and until the court is satisfied in the
terms of that paragraph, a satisfaction which can only be declared if and when
an application is made to it. Since the site owner will be the party who wants
the declaration to be made, it is natural to assume that the application will
be made by him. In my view the words ‘on the application of the owner’ do no
more than recognise that state of affairs.
It is
perfectly true, as was pointed out by Mr Howard, on behalf of Omar Parks (he
also appeared for the site owner in the other appeals), that if that is the
only function of the words ‘on the application of the owner’, they could just
as well have been omitted. If a long experience of legislative drafting had
brought with it a conviction that an Act of Parliament never included words of
surplusage, that would no doubt have been a persuasive point. But that is not
our experience and I for one do not complain of it. An emphasis of the obvious,
unnecessary to a judge who has had the benefit of argument, may yet be welcome
to a busy practitioner, who has not. Moreover, as was pointed out by Mr Arden
QC, on behalf of Mr Elkington, there are other provisions of the 1983 Act of a
like
occupier to apply to the court if the site owner fails to comply with that
section. More significantly, subsections (2) and (3) of section 2 each provide
for the court to make an order ‘on the application of either party’. I think
that the wording of paras 4, 5 and 6 was intended to achieve consistency with
these other provisions. I doubt whether the words ‘on the application of the
owner’ were intended to have any temporal significance. If they were, they can
only refer to the time when the application is heard and determined. It is
impossible to give them the much greater temporal significance of requiring
that the occupation of the home be judged as at the date on which the
application is made.
I am also
unconvinced that any absurdity flows from giving the critical words their plain
and ordinary meaning. Indeed, as Mr Arden observed, if the contrary view were
correct, a site owner, simply by issuing an application and without prior
notice, could seemingly establish his entitlement to terminate an agreement
against an occupier who, in circumstances such as those experienced by Mr
Elkington, had been unable to move into his home and was still living
elsewhere. Such a provision would be most unusual and in stark contrast with
para 4, which requires notice to remedy to be given to the occupier before an
application to terminate the agreement can be brought on the ground of a breach
of one of its terms. If you were looking for an absurdity flowing from an Act
whose purpose is to protect the occupation of residential premises, you would
hardly need to look further than that. Moreover, there have long been similar
provisions in other legislation; for example in the Rent Acts, where the date
on which it had to be determined whether the landlord reasonably required the
premises for his own occupation was the date of the hearing: see Benninga
(Mitcham) Ltd v Bijstra [1946] KB 58. A similar rule applies to the
date on which a landlord must establish his intention to demolish or
reconstruct the premises, or to occupy them for the purposes of a business to
be carried on by him, within section 30(1)(f) or (g) respectively
of the Landlord and Tenant Act 1954: see Betty’s Cafes Ltd v Phillips
Furnishing Stores Ltd [1959] AC 20. I, therefore, see no reason why
Parliament should not have intended a similar rule to apply to the implied term
under the 1983 Act.
We were
referred to only one authority under the 1983 Act, the decision of this court
in Jessop v Hanwell November 4 1988, unreported), where Fox LJ
said:
. . . the
court has no alternative but to remit the issue of whether the mobile home was
the main residence of the respondent at the date of the originating application
to the county court.
The making of
an order in that form would appear to give strong support to the contention of Omar
Parks. However, it is clear, both from the judgments and from information given
to us by Omar Parks’ solicitors, who acted for the site owner in that case
also, that the date at which the occupation had to be judged was not there in
issue. No argument was heard on that point. So that decision does not bind us
to arrive at a conclusion contrary to that which, after hearing full argument,
I believe to be correct. In Omar Parks Ltd v Elkington I would
therefore allow the appeal and discharge the order for possession.
I now turn to Ron
Grundy (Melbourne) Ltd v Boneheyo, in which the material facts are
these. Ron Grundy (Melbourne) Ltd (‘Ron Grundy’) is the owner of Woodlands
Park, Wash Lane, Allostock, Cheshire, which is also a protected site for the
purposes of the 1983 Act. On December 22 1985 Mr Clive Boneheyo 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. Mr Boneheyo also became the
assignee of an agreement (‘the 1976 agreement’) dated January 1 1976 and 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 is agreed that that
was an agreement to which the 1983 Act applied and that the implied term was
implied in it. The nature of Mr Boneheyo’s occupancy of the home between December
1985 and March 1990 is unclear. What is clear is that in the latter month he
ceased to occupy it at all and that between then and August 1990 it was
unoccupied. On April 4 1990 the site was acquired by Ron Grundy. In August
1990, without the knowledge or approval of Ron Grundy, Mr Boneheyo’s daughter,
Miss Valerie Boneheyo, moved into the home. She has since occupied it as her
only residence.
On December 3
1990 Ron Grundy commenced proceedings in Northwich County Court against Miss
Boneheyo seeking possession of 22 West Site on the ground that she had
wrongfully occupied it and was therefore a trespasser. It is agreed that at
that stage Ron Grundy’s contention was correct. Although Miss Boneheyo had
taken occupation of the home with the knowledge and approval of Mr Boneheyo,
there had been no assignment to her of the 1976 agreement.
No further
step was taken in the proceedings against Miss Boneheyo at that stage. No doubt
it was realised that the 1976 agreement could only be terminated in proceedings
against Mr Boneheyo. In any event, on January 14 1991 Ron Grundy’s solicitors
wrote to the Boneheyos’ solicitors stating that they were commencing
proceedings against Mr Boneheyo for leave to terminate the 1976 agreement under
the 1983 Act. On January 15 the Boneheyos’ solicitors wrote to Ron Grundy’s
solicitors as follows:
. . . we
hereby give you formal notice on behalf of our clients of their request that
your client consent to an assignment of the Agreement dated 1st January 1976,
to which the Mobile Homes Act 1983 applies, to Miss Valerie Boneheyo.
If we do not
hear from you within the next seven days we shall assume that such consent is
withheld.
That letter
was received by Ron Grundy’s solicitors on the following day, January 16. No
reply having been received, on January 24 Mr Boneheyo gave Miss Boneheyo the
mobile home and assigned to her by deed the benefit of the 1976 agreement. On
the following day, January 25, Ron Grundy’s solicitors wrote to the Boneheyos’
solicitors as follows:
. . . our
client does not consent to an assignment of the Agreement dated the 1st January
1976 to Miss V Boneheyo. It is clearly inappropriate for such consent to be
given, or indeed sought, in view of the two actions that have been started,
quite apart from the other factors such as Miss Boneheyo’s behaviour since she
started living on the Park and the fact that a section has been built onto the
front of the Mobile Home so as to make it non-mobile.
Meanwhile, on
January 17 1991 Ron Grundy had issued an application in Northwich County Court
against Mr Boneheyo seeking a declaration that it be at liberty to terminate
the 1976 agreement and an order for possession of 22 West Site, on the ground
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 on November 7 and 8
1991. He dismissed them with costs and made a declaration that the 1976
agreement enured for the benefit of Miss Boneheyo. Ron Grundy now appeals in
both cases.
As I have
said, it is agreed that Miss Boneheyo was not entitled to the protection of the
1983 Act when proceedings were commenced against her on December 3 1990. At
that stage the 1976 agreement had not been assigned to her. It did not
therefore enure for her benefit under section 3(2): see below. Her case is that
the 1976 agreement was lawfully assigned to her on January 24 1991, from which
date she was, by virtue of her occupation of the home as her only residence,
within the protection of the implied term. So the first question which the
learned recorder had to decide was the same as that which arose in Omar
Parks Ltd v Elkington. He decided it in favour of Miss Boneheyo,
holding that the occupation of the home had to be judged as at the date on
which the application was heard and determined. For the reasons already given,
his decision of that question was correct.
The second
question which the recorder had to decide was whether the assignment of January
24 1991 was effective, so that the 1976 agreement did indeed enure for the benefit
of Miss Boneheyo at the date of the hearing and determination of the
application in November 1991. In order that that question may be considered,
reference must be made to two further provisions of the 1983 Act. Section 3(2)
provides:
Where an
agreement to which this Act applies is lawfully assigned to any person, the
agreement shall enure for the benefit of and be binding on that person.
Para 9 of Part
I of Schedule 1 sets out another implied term:
The occupier
shall be entitled to give the mobile home, and to assign the agreement, to a
member of his family approved by the owner, whose approval shall not be
unreasonably withheld.
As to those
provisions, it is clear, first, that Miss Boneheyo was a member of Mr
Boneheyo’s family for the purposes of para 9: see section 5(3). Second, it was
accepted by Mr Howard on behalf of Ron Grundy that the 1976 agreement was
‘lawfully’ assigned to Miss Boneheyo within section 3(2) if Ron Grundy’s
approval was both sought and unreasonably refused before the assignment was
executed. There can be no doubt that approval was sought by the Boneheyos’
solicitors’ letter of January 15 1991 and Ron Grundy does not impugn the
recorder’s finding that, if it was refused, it was
the single issue which remains in dispute is whether approval was impliedly
refused before January 24 when the assignment was executed. If it was not,
then, notwithstanding the subsequent express refusal, the 1976 agreement was not
‘lawfully’ assigned and Ron Grundy is entitled to succeed on its appeals.
Although the
recorder’s decision necessarily imported a holding that Ron Grundy’s approval
had been impliedly refused, he did not discuss that point. He rather assumed
the refusal and concentrated on its unreasonableness. However, both sides are
agreed that the question whether there was an implied refusal or not depends on
whether Ron Grundy was given a reasonable time to consider the matter and to
give or withhold its consent: see Wilson v Flynn [1948] 2 All ER
40 at p 42F per Denning J.
The question
is agreed to depend on the inferences which should be drawn from the
contemporaneous correspondence between the parties and the surrounding
circumstances of the case. The Boneheyos’ solicitors’ letter of January 15
requesting approval was received by Ron Grundy’s solicitors on January 16. Two
days earlier the latter had written to the former stating that they were
commencing proceedings against Mr Boneheyo. Those proceedings were not commenced
until January 17 and it may be assumed that the instructions to commence them
could still have been countermanded on January 16. The letter of January 15
stated that if nothing was heard from Ron Grundy’s solicitors within the next
seven days it would be assumed that consent was withheld. The instructions to
commence proceedings were not countermanded and nothing further was heard from
Ron Grundy’s solicitors within seven days from January 16, ie before the close
of business on January 23. In all the circumstances and bearing in mind the
hostile state of play between the parties at that time, I think that those
seven days were a reasonable period for Ron Grundy to consider the matter and
to give or refuse its approval. The facts of the case are broadly comparable
with those of Lewis & Allenby (1909) Ltd v Pegge [1914]
1 Ch 782, on which Mr Quenby, for the Boneheyos, relied.
For these
reasons I am of the opinion that Ron Grundy’s approval was impliedly refused.
The 1976 agreement was lawfully assigned to Miss Boneheyo by the assignment of
January 24 1991. In Ron Grundy (Melbourne) Ltd v Boneheyo I would
therefore dismiss the appeals.
STOCKER and BELDAM LJJ agreed and did not add anything.
Appeals
dismissed with costs.
