Security at last

11 March 2011
Security at last

Some 50 years after the first local authority Gypsy and Traveller sites were built, the old 28 day notice of eviction followed by a court order which would be given without any proper consideration of the facts are finally going to become things of the past. The three pieces of secondary legislation which will finally bring the terms of the Mobile Homes Act (MHA) 1983 into effect on local authority sites(as of 30th April 2011) were published at the beginning of February.[1]

Instead of the ‘landlord’ and the ‘licensee’ the MHA 1983 refers throughout to the ‘owner’ and the ‘occupier’.

The amendments to the MHA 1983 would result in the following new structure for the Act:

Main body of the Act (where one finds the terms, amongst others, as to written agreements and succession)

Part 1 of Schedule 1 (implied terms) is now split into:

Chapter One – application and interpretation;

Chapter Two – terms relating to sites other than local authority Gypsy and Traveller sites (where we say ‘local authority’ we are including ‘county council’ within that phrase);

Chapter Three – terms relating to transit pitches on local authority Gypsy and Traveller sites ( ‘transit pitch’ is defined in Chapter One as “a pitch on which a person is entitled to station a mobile home under the terms of the agreement for a fixed period of up to three months”);

Chapter Four – terms relating to permanent pitches on local authority Gypsy and Traveller sites (‘permanent pitch’ is defined in Chapter One as “a pitch which is not a transit pitch”).

Written agreements and succession

 

With regard to written agreements (MHA 1983 section 1), the only change at this stage is that the right of an occupier to apply to the court or the tribunal if the owner fails to provide a written statement and the right of either party to the agreement to apply to the court or the tribunal as to the terms of the agreement are disapplied with regard to transit pitches.

The terms as to succession ( MHA 1983 section 3) are unamended. Where an occupier dies, the following are entitled to succeed:

(a)   any person residing with that person (‘the deceased’) at that time being-

(i)                the widow, widower, or surviving civil partner of the deceased;or

(ii)             in default of a widow, widower or surviving civil partner so residing, any member of the deceased’s family;or

(b)   in default of any such person so residing, the person entitled to the deceased’s mobile home by virtue of the deceased’s will or under the law relating to intestacy...

 

If the inheritor of the mobile home under section 3(3)(b) above was not a family member residing with the deceased, the position is more complicated. Essentially the inheritor cannot move into the mobile home unless the site owner agrees (MHA 1983 s3(4)).

Permanent Pitches on local authority sites(Chapter Four)

 

Most importantly of all, occupiers of permanent pitches will have full security of tenure for the first time ever:

4. The owner is entitled to terminate the agreement forthwith if, on the application of the owner, the court-

(a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and

(b) considers it reasonable for the agreement to be terminated.

5......

(a)is satisfied that the occupier is not occupying the mobile home as the occupier’s only or main residence; and

(b)considers it reasonable for the agreement to be terminated.

6......

(a) on the application of the owner, the court has determined that, having regard to its condition, the mobile home is having a detrimental effect on the amenity of the site, and

(b)...considers it reasonable for the agreement to be terminated.

 

There are also provisions, with regard to para 6 above, for the occupier to be given further time in order to carry out repairs.

The other implied terms deal with:

  1. Duration of the agreement (i.e. subject to the owner’s interest in the land and to the terms of any planning permission);
  2. 2.     Termination by the occupier (4 weeks notice); 
  3. 3.     Recovery of overpayments by the occupier;
  4. 4.     Re-siting of mobile home ( if essential repair or emergency works to be done – can be moved temporarily to suitable pitch potentially on a different site);
  5. 5.     Quiet enjoyment of the mobile home;
  6. 6.     Owners’ right of entry to the pitch;
  7. 7.     The pitch fee (note that “[t]here is a presumption that the pitch fee will increase or decrease by a percentage which is no more than any percentage increase or decrease in the retail prices index since the last review date, unless this would be unreasonable...”);
  8. 8.     Occupier’s obligations:

(a)  to pay the pitch fee;

(b)  to pay sums due to the owner;

(c)   to keep the mobile home in a sound state of repair;

(d)  to maintain the outside of the mobile home and the pitch in a clean and tidy condition;

(e)   to provide any documentary evidence of expenses which s/he seeks reimbursement for.

  1. Owner’s obligations:

(a)  to provide written details on request of the size of the pitch and other details;

(b)  to provide on request documentary evidence of new pitch fee and other charges;

(c)   to be responsible for repairing the base on which the mobile home is stationed and for maintaining services supplied;

(d)  to be responsible for repairing any other amenities provided including any ‘outhouses’, i.e. amenity block;

(e)   to maintain in a clean and tidy condition the common parts of the site;

(f)    to consult occupiers about proposed improvements;

(g)  to consult a ‘qualifying residents’ association’ “about all matters which relate to the operation and management of, or improvements to, the protected site”;

(h)  to provide the owner’s name and address.

Transit Pitches on local authority sites (Chapter Three)

 

The following implied terms apply:

  1. The occupier can terminate the agreement before the expiry of the fixed term by giving four weeks notice or for specified reasons;
  2. Recovery of overpayments by occupier;
  3. Quiet enjoyment of the mobile home;
  4. Owner’s right of entry to pitch;
  5. Provision of owner’s name and address.

Jurisdiction

 

The current MHA 1983 allows for any disputes to be dealt with by the county court. The relevant statutory instrument[2] changes this so that all disputes (apart from possession actions – see further below) will now go to residential property tribunals (RPTs). As was pointed out by many consultees, the main relevance of this from the occupier’s point of view is that no legal aid will be available for occupiers to obtain representation before RPTs.

All possession actions will still be dealt with by county courts except in the case of actions where the owner says the mobile home is detrimental to the amenity of the site. In the latter type of case, the RPT will decide whether the mobile home is detrimental to the amenity of the site and whether it is reasonably practicable for repairs to be done. If necessary, the county court will then decide whether it is reasonable to make a possession order.

Conclusion

 

Activists and campaigners will be delighted to see that security of tenure is finally to be introduced on local authority sites over 6 years after the European Court of Human Rights in Connors v UK held that the eviction of Mr Connors without him being able, effectively, to put his case in court amounted to a breach of Article 8 of the European Convention (the right to respect for private and family life and home).

Additionally occupiers on local authority sites will at last be given the confidence to raise other issues about poor site management or failure to deal with the new obligations imposed on local authorities.

Some matters remain unclear. For example, though local authority tenants of houses and flats have the right to sign over their tenancy to spouses or family members, this right has not been extended to Gypsies and Travellers on local authority sites.

Despite this and other concerns, April 30th will be a momentous day for the residents of local authority sites and those who have fought for this outcome for many, many years.

NB It should be noted that these amendments to the MHA 1983 do not apply to Wales. We wait to see what the Welsh Assembly Government will decide to do on this issue.

 

David Watkinson, Garden Court Chambers

Chris Johnson, Community Law Partnership (CLP)

March 2011

The Travellers Advice Team at CLP runs a Community Legal Advice funded telephone helpline for Gypsies and Travellers on 0845 120 2980 which is available Monday to Friday 9.00am to 5.00pm. For an informal chat with a member of the Team phone on 0121 685 8595.

Garden Court Chambers has a specialist Gypsy and Traveller Team.

[1] The Government has confirmed that, in their opinion, county council sites are already within the provisions of the Mobile Homes Act 1983. However from 30th April 2011, new agreements on county council sites will be subject to the new provisions being introduced then for local authority sites.

[2] The Mobile Homes Act 1983 (Jurisdiction of Residential Property Tribunals) (England) Order 2011.