A series of articles compiled by specialist Legal Expert GRAHAM WATTS LLB (Hons) LLM, PARK HOME LEGAL SERVICES, reproduced by PHRAA, for the

(First published in the July 2009 issue of the Park Home and Holiday Caravan magazine and reproduced by PHRAA by kind permission of the author Graham Watts LLB (Hons) LLM.)

“The department of Communities and Local Government (DCLG) has now released its long overdue fact sheets relating to park homes. It will be recalled that the first fact sheet set out the new implied terms back in 2006.

In practice, the fact sheets should have been available simultaneously with the Mobile Homes Act 1983 (The Act) new implied terms, which came into force on October 1^st 2006.

I generally observe that if any person is hoping or expecting the fact sheets to put more flesh on the bones of the legislation, they will be very disappointed. The fact sheets are blandly devoid of any “flesh” and are essentially, a rewording of cherry-picked parts of the legislation. As the fact sheets will be the nearest the majority of park home occupiers will ever get to the legislation, it is regrettable that, a number of the assertions made by the DCLG in the fact sheets are simply either incorrect or highly confusing to read.

The four fact sheets cover:

* Selling a Park Home; (1)

* Pitch Fees and Other Payments; (2)

* Residents Rights and Obligations; (3)

* Qualifying Residents’ Associations. (4)

In this series of articles, I will consider each fact sheet and if there are any glaring omissions, anomalies, or, if it is plainly wrong-headed advice, I will endeavour to put it in some perspective for the reader. I must stress that it is not my intention or role to re-write the fact sheets.

The first issue of importance is toco0nsider the overall legal value of the fact sheets. As the DCLG quite rightly explains, the fact sheets constitute the DCLG view of the law. They do not, ‘…..give an authoritative interpretation of the law’ and are not legally binding in a court, although a court would be sensible not to disregard them in any issues before them, unless the fact sheets fly in the face of common sense and/or are legally perverse. I suspect that a court will, at some stage, dismiss various parts of the four fact sheets under consideration as being legally incorrect. As the government is quick to, point out, only the courts can interpret the law.

One further introductory point. The fact sheets r5egularly refer to an ’arbitrator’ but do not distinguish when an arbitrator can become involved. On my reading, it would appear by implication that the ’arbitrator’ is an equal option to the court. It is not an alternative. In my view, it should have been made clear that an arbitrator can become involved in any dispute provided either the express terms of the written agreement make it clear that an arbitrator can be appointed to resolve disputes, or if the parties agree. In this respect, the old Housing Booklet, ’Mobile Homes. A Guide for Residents and Site owners’ issued by the Office of the Deputy Prime Minister explained this rather well. For the reader with an ’old style’ written statement, appointment of an arbitrator is rarely a provision found in the express terms.

In practice, use of an arbitrator to resolve disputes is rarely encountered..

We are told on page 3, under the sub-heading, ’preparing to sell a park home’ that if the site owner unreasonably withholds their approval of a prospective purchaser,’ ….a resident can apply to the court or arbitrator for an order requiring the site owner to give approval’. This is not what the legislation provides. The legislation actually makes it clear that the occupier ’may apply to the court for an order declaring that the person is approved’. It would be for the courts to, in effect, approve the prospective purchaser by order, thus circumventing the owner entirely. I note the DCLG get this right on page 10.

The paragraph under the sub-heading, ’Does a resident have to tell the site owner that they are proposing to sell their home? ’ is quite correct, in that the occupier need not advise the owner of his/her intention to sell their mobile home. Indeed, I would recommend the occupier does not. Selling an existing park home (and in particular if it is older than say,15 years0 is probably the most difficult matter a park home owner or executor will ever encounter. When a previously happy and content park homeowner finds it necessary to sell their home, they can sometimes encounter problems with their park owner if the park owner does not want the home to be sold (at least not to anybody else but him or her). This is the perpetual tension that underlies this industry, legislation or not. The moral really is, only let the owner know you intend to sell when it becomes absolutely necessary.

Page 5 then explains that, where a single person ‘occupier’ dies testate (leaving a will), those entitled to the property under the will do not automatically have the right to take up residence of the home. ‘Automatically’? This choice of word implies that the door is ajar for any beneficiary under the will to legally take up occupation. Wrong. The law is quite clear, the agreement ( and therefore the right of occupation) does not ‘enure’ for their benefit. I acknowledge that the beneficiary and the site owner can separately agree that the beneficiary may take up occupation of the mobile home but, in all likelihood, the site owner will not entertain the proposal.

Now we come to the perverse association with a commonly used legal expression, ‘…which must not be unreasonably held,’ Note the word used in the fact sheet is ‘held’’. There is no doubt whatever, this should be, ‘withheld’. So, we learn that the beneficiary under the deceased will would, ‘….need to obtain the consent of the site owner’ if they wished to take up residence. Agreed, but then it goes on to suggest that consent from the owner, ‘…..must not be unreasonably (with)held.’ The connotation is that there is some kind of legal duty imposed on the owner to be ‘reasonable’ when considering such a request. This is simply wrong and is not the law. There is no legal obligation on the site owner to be ‘reasonable’ in these circumstances. So, anybody expecting the park owner to consent to the request by not ‘unreasonably’ withholding consent may well find themselves rudely awakened.

We are told that any commission earned by the site owner on the sale of the mobile home is, ‘….in addition to any commission….the owner is entitled to….on the sale price.’ This is where the site owner acts as a selling ‘estate agent’ in the sale of the home. In this scenario, the fact sheet advice would give the owner, in effect, two commissions on the sale of the mobile home; his/her statutory, ‘up to’ 10 per cent and whatever percentage he/she has offered his/her sales service to the occupier for. Notwithstanding that there may well be an issue of conflict of interest, if this form of ‘sales’ service is provided separately, it is imperative for both parties to enter a separate written agreement. If this does not happen, the site owner may fall foul of the provisions of Paragraph 8 (1G) (2A) of Schedule 1 to the Act.

To refresh the readers memory, Paragraph 8 (1G) (2A) provides, ’….the owner may not require any payment to be made (whether to himself or otherwise) in connection with the sale of the mobile home…’ (my emphasis).

The law seems clear enough to me and it certainly conflicts with the advice in this fact sheet. I note the DCLG’s advice later on page 6 under the sub-heading , ‘Is a solicitor needed when selling a park home?’, is that the seller should obtain legal advice. In my view, it is equally important that the buyer should take legal advice also. While it should be common sense that a seller of an existing mobile home should show (or give a copy of) their written agreement and site rules to a prospective buyer , it cannot be a foregone conclusion that it happens in practice. This would certainly be dealt with and the documents requested in any event, if the buyer was legally represented. I am glad the DCLG has made the point on page 8 that a seller not disclosing important and relevant information to the buyer may be made subject to a claim of misrepresentation under contract law. I would simply add that it may well be that a court, on the basis of misrepresentation (which can be through statements made by admission as well as omission), will be led toward considering the contract at an end under contractual mistake. This could well result in the sale being held to be void and the buyers purchase money being returned.

Page 9 covers seeking the park owners approval of a buyer. Correctly, the advice is; do it in writing. I always recommend a seller serves a proper written notice on the owner to the effect he/she is proposing to sell the home to the buyer who is named. In the absence of a formal or written notice, if the owner claims he/she was not asked to approve the buyer, what then? Start all over again? No doubt the buyer, fed up with delay and too many other homes to consider, will be long gone. The moral of the story is; create the owners worst nightmare - a paper chain of written evidence. Having said that, in my view a ‘letter’ simply containing the buyers name and address is not enough and the letter should never be sent by recorded delivery. The devious ones (site owners) claim there is no one present to sign for the letter when the postman presents it and it will invariably end up back with the seller weeks later, marked ‘undeliverable’. Simply obtain a Certificate of Posting; its free.

Park Home Legal Services. Tel. 01275 373762.