Rounds of abuse and desist: the games mobile home owners play

The 165,000 UK residents who live in mobile homes are often elderly or vulnerable people in need of protection, in some cases from the site owners and in others from fellow occupiers, as they all live in close proximity to each other. The Mobile Homes Act 1983, as amended by the Mobile Homes Act 2013 (discussed further in 'More protection for the mobile home owner') gives a measure of protection. The occupier is entitled to a five-year agreement, minimum protected terms, and protection against eviction, except by order of the court if reasonable.

The occupier of a mobile home (defined as park or caravan homes that are fixed, permanent main residences, not a temporary holiday home) may be evicted if he is in breach of the rules, notice has been served on him, and, if the breach is remediable, he has been given a reasonable opportunity to comply and has failed to do so.

In Wickland (Holdings) Ltd v Telchadder [2014] UKSC 57, occupier A acted in an anti-social manner towards occupier B. B complained to the site owner, who sent A a notice warning him of eviction unless he ceased the anti-social behaviour within a reasonable time. For some years A did in fact desist. Then, much later, A again acted in an anti-social manner towards B. B again complained. The site owner, relying on the original notice, sought to terminate the contract and sought possession.

Four principle questions arose:

1. Was the anti-social behaviour remediable?

2. If so, had it been remedied?

3. What is a reasonable opportunity to comply?

4. Was the original notice still valid and operating, or should a new notice have been given in respect of the later anti-social behaviour?

Positive and negative obligations

The imposition of a positive obligation can readily be remedied. The occupier could be required to pay arrears of rent, take out a required insurance policy, keep the mobile home in repair or remove unlawful alterations, or remove persons not entitled to live on the premises.

Suppose the obligation is negative: not to annoy, be a nuisance to or assault fellow occupiers. If the anti-social occupier desists and there is no more trouble, then he has complied, the situation is remedied. But suppose that after several years A restarts his anti-social behaviour. Is the notice still running, indefinitely, for ever? Or has it expired? Their Lordships decided that the original notice had been complied with in a reasonable time and had accordingly expired. If the site owner wished to seek possession on the basis of the renewed anti-social behaviour, he would have to serve a fresh notice.

But suppose A complied with the fresh notice, all was quiet for a while, and then he started up yet again with the anti-social behaviour. Surely if this went on repeatedly, there would come a time when the site owner and the judge would be entitled to say that the anti-social behaviour had in fact become irremediable and no further opportunity need be given to comply.

What is meant by remediable? At the end of the day, it is a matter of judgement, for the site owner in serving a notice and the judge in determining whether the conduct in the particular circumstances was remediable or not.

If A criminally assaulted B, or threatened to do so, or constantly harassed or abused B, then the gravity or severity of such conduct must surely be irremediable. B could not be expected to have to live in fear, anxiety or insecurity because of A.

The classic example is the brothel: if the premises were used as a brothel, but eventually the brothel keeper was required to desist and did so, could it be said that the abuse had stopped, it had been remedied, and the notice was complied with? No, there was a continuing effect, the premises had become tainted, stigmatised, and the damage could not be put right.

Constant repetition

The problem facing the site owner seeking possession can be difficult to resolve. If the breach is remediable, a fresh notice must be served each time possession is sought, and a reasonable opportunity for remediation given. However, constant repetition, with the occupier 'playing games' of abuse and desist, abuse and desist, will eventually entitle the site owner to claim that logically the breach is no longer remediable.

The agonising decision will arise when it is none too clear whether the breach is remediable or non-remediable. If it is remediable but the site owner thinks not, the notice giving no opportunity to remedy could be invalid. If the breach is non-remediable and the site owner thinks it is (or might be) remediable, then the site owner will be giving the occupier the opportunity to remedy unnecessarily, in a situation where the judge might have taken a different view. Perhaps the site owner should serve two notices, one requiring remediation, the other seeking possession, depending upon the ultimate finding by the judge. The trouble is that the occupier could claim that if given the opportunity to remedy the situation, he should at least be allowed to try to do so. The site owner can find himself in a dilemma. Serving the wrong notice could mean an invalid notice, or a valid notice giving respite to an undeserving occupier.

If the site owner gets it wrong and his case is dismissed, he can always start again and get it right next time. However, he will not be pleased, and he will blame his solicitor for giving bad advice, and look to him for indemnity.

Alec Samuels is a barrister and former reader at Southampton University