Kirstie continues her analysis of the Telchadder case, examining the grounds of appeal and the thought process adopted by the Court of Appeal.
The Court of Appeal has given useful guidance to park owners on the contents of Notices of breach. There is no requirement to give a specific time period for remedying a breach and a valid notice letter sent some time before the incident prompting the park owner to bring proceedings may be the appropriate notice to spring forward with termination proceedings.
However, park owners should remember that:
- All notices of breach should be clear and unambiguous, specifying the breach or breaches and why the resident has broken those provisions and how those breaches can be remedied;
- If a reasonable period of time can be given to remedy a breach, for example by giving a specific period of time in which to remedy a breach for non-payment of pitch fee, so the resident knows when to pay up by, then an end date should be given;
- It should state the consequences of failing to remedy the breach i.e. an application to the County for termination and possession; and
- It should give the park owner’s name and address (an address in England and Wales – not necessarily a home address).
- You should be in the position to demonstrate that the notice has been served – so be prepared to evidence how the notice was served – proof of posting, signed recorded or special delivery, a certificate that it has been hand delivered.
- Before commencing legal proceedings, you should check that the resident concerned has broken the terms of the agreement which you have warned him not to break in the notice letter.
Above all, you should have your evidence together to support your case for termination i.e. your evidence that the resident has broken the terms of the agreement and that not withstanding notice the resident has continued to break the terms of the agreement and that in all the circumstances it would be reasonable for the agreement to be terminated. In terms of bringing proceedings against a resident based on his or her behaviour, evidence should be contemporaneous letters from residents complaining about the behaviour, attendance records made by you, records when a resident has telephoned you or met with you, witness statements from residents. For an application to stand any prospect of success residents will need to be prepared to give evidence in the witness box, which is a daunting prospect and on the reasons why applications of this nature are not pursued.
In this case, it was clear that the park owner had properly documented each allegation of breach of the nuisance/annoyance clause in the agreement and the park rules. The relevant parks rules, clearly designed for the better manage of the park and recognised by the Court as necessary in view of the close proximity between homes on the park were also vital to the success of this case. There was a clear paper trail, in the form of letters, documenting the instances of breach. Not only that, he had the support of his residents, who, no doubt were concerned about possible retribution for giving evidence against Mr Telchadder, but none the less gave evidence to the Court to convey just how bad it was living in such close proximity to him. The impact on their lives and their human rights if Mr Telchadder were to remain on site was vital to the balancing act employed by the Court.
This case also gives comfort to park owners who may have served a notice of breach some time ago relating to behaviour but not acted on that notice in light of further breaches of the nuisance and annoyance provision. Sometimes, events happen when a park owner wants to apply to the Court without putting the resident on notice because what has happened is so serious. Unfortunately the Act doesn’t make provision for one off serious breaches. However, if a valid notice has been served sometime before and the behaviour complained of constitutes yet a further breach of the same provision, whilst before, our advice would have been that it is best to serve a fresh notice, now, this case serves as a useful precedent and is authority for saying that legal proceedings can be commenced straight away.
The human rights argument as to why the Court should not make an order for possession because it would constitute an unlawful interference with the residents right to a home and a private life is becoming more and more prevalent in our field. For about the past 2 years we have known about the argument being used in the public sector on applications by a local authority for possession of a tenanted property but private landlord and tenant (and by analogy cases for termination under the Act) have always been distinguished because these cases involve private bodies – not a public body and a private body. This area of law is developing all the time and we might have more news of this front by the end of the year. If the law does develop, human rights arguments are going to be more prevalent and both the residential and holiday park industry (where static caravans are being lived in) will need to be prepared.
Park owners should remember that litigation is not to be embarked upon lightly. This sort of dispute is still within the jurisdiction of the County Court (not the Residential Property Tribunal) and so the usual costs considerations should be of paramount importance. Litigation of the nature of this case is expensive and can be long drawn out, the defendant resident often being publicly funded (which means even if the park owner won, he is unlikely to get his costs back). In this case, legal proceedings were commenced in September 2009 and it wasn’t until 1 March 2012 that the Court made its final decision. Therefore residents’ expectations need to be carefully managed and park owners should be prepared for a long fight.
For more information please contact Kirstie Apps.