Refusal Order Granted to Block Park Home Sale Due to Pet Breach

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/43UF/PHM/2023/0002

Property

:

[ADDRESS], Chertsey, Surrey [POSTCODE]

Applicant: [redacted]

:

Respondent

:

[redacted]

:

[COUNSEL] acting as Executor

Type of Application

:

Application by owner of a Park Home site for a refusal order Paragraph 7B of Chapter 2 of Part 1 of Schedule 1 Mobile Homes Act 1983 (as amended)

Tribunal members

:

Regional Judge Whitney Deputy Regional Judge Dobson

Date of Hearing

Date of Decision

:

: 5th January 2024

8th January 2024

DECISION

2 Background

1. The Applicant seeks a refusal order preventing the [NAME] from selling the park home and assigning the agreement to the [NAME]. This application was received on 15 December 2023. The Tribunal acknowledged receipt of the application on 19 December 2023 and requested payment of the application fee. The fee was paid by the Applicant on the same day.

2. The Applicant has submitted a copy of the site rules and a copy of the Schedule 2 Notice of [NAME] sale together with copies of email correspondence between the parties. The grounds of the application at part 4 of the application form are that were the sale of the park home to go ahead, the [NAME] would be in breach of the site rules by keeping animals that are of a description specified in the rule.

3. The Applicant notified the Respondent of the Application on 19th December 2023.

4. The Tribunal issued directions on 22nd December 2023 including provision for a hearing.

5. Ms [NAME] confirmed that she authorised Mr [NAME] of [NAME] to act as her representative.

6. The Tribunal was supplied with an electronic hearing bundle and references in [ ] are to pages within that bundle. Mr [NAME] supplied a copy of an email from the [NAME] purchaser Mr and Mrs [NAME] dated 14th December 2023 which was within the bundle and on 2nd January 2024 an amended Schedule 2 Notice. On the morning of the hearing Mr [APPELLANT] on behalf of the Applicant sent what was said to be the original Schedule 2 notice dated 9th December 2023.

The Law

7. Copies of the relevant sections of The Mobile Homes (Selling and Gifting) (England) Regulations 2013 were included within the bundle [42 & 43]. The Tribunal has also had regard to paragraph 7A of Chapter 2 of Part I of the Mobile Homes Act 1983 as amended:

“7A(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2)Where the agreement is a new agreement, the [NAME] is entitled to sell the mobile home and to assign the agreement to the person to whom the mobile home is sold (referred to in this paragraph as the “[NAME]”) without the approval of the owner. (3)In this paragraph and paragraph 7B, “new agreement” means an agreement—

3 (a)which was made after the commencement of this paragraph, or (b)which was made before, but which has been assigned after, that commencement. (4)The [NAME] must, as soon as reasonably practicable, notify the owner of the completion of the sale and assignment of the agreement. (5)The [NAME] is required to pay the owner a commission on the sale of the mobile home at a rate not exceeding such rate as may be prescribed by regulations made by the Secretary of State. (6)Except to the extent mentioned in sub-paragraph (5), the owner may not require any payment to be made (whether to the owner or otherwise) in connection with the sale of the mobile home and the assignment of the agreement to the [NAME]. (7)The Secretary of State may by regulations prescribe procedural requirements to be complied with by the owner, the [NAME] or the [NAME] in connection with— (a)the sale of the mobile home and assignment of the agreement; (b)the payment of commission by virtue of sub-paragraph (5).”

The Hearing

8. The hearing took place remotely by CVP with the Tribunal sitting at Havant Justice Centre. [NAME] was in his office in Thurrock accompanied by Miss [NAME] his PA. Mr [NAME] attended by telephone only being at a location in New Haw, Surrey. The hearing was recorded.

9. We set out below the most salient parts of the hearing.

10. Mr [NAME] confirmed that Mr and Mrs [NAME] were aware of the hearing today but had chosen not to attend.

11. Mr [NAME] highlighted that no evidence had provided that Ms [NAME] was the Executor of her late father’s estate, but no issue was being taken.

12. Mr [NAME] referred to an email [24] sent by email from Mr [NAME] attaching the first Schedule 2 Notice. A copy of this

4 Notice Mr [NAME] had forwarded to the Tribunal immediately prior to the hearing. In fact three versions of the Schedule 2 Notice appeared to be in existence. In the covering email Mr [NAME] stated that the Buyers, Mr and Mrs [NAME] had confirmed they had no pets.

13. The first notice served simply crossed through reference to animals and vehicles. The other two notices in differing forms referred to three vehicles being on site and that there were no animals to be kept at the home.

14. Mr [NAME] clarified in an email dated 14th December 2023 sent to the Applicant’s [29] which stated “We contacted [NAME] again to clarify the situation. After a discussion and in accordance with the site rules stating that no dog must RESIDE at the site, [NAME] has confirmed that in respect of the legal defination [sic]of RESIDE, there will be no dog that will reside on the site and he has comfirmed [sic] compliance with the site rules displayed with Runnymede Borough Council.” 15. Mr [NAME] referred to the original notice and the amended notice served [13 and 14] which indicated “No dogs and no other animals” with the amendment signed by Mr [NAME].

16. Mr [NAME] relied on his statement [40 & 41].

17. On cross examination by Mr [NAME] Mr [NAME] confirmed the site rules say no dogs are allowed on the site. He was not aware of any other dogs being on the site.

18. Upon being questioned by the Tribunal Mr [NAME] said he was not aware of the date of the agreement as the Applicant did not have a copy on file. The Applicant took over the site in 2015 and Mr [APPELLANT] was already an [NAME]. Given the notice had been served he was satisfied the agreement related to one in existence prior to 26th May 2013 the date upon which the amendment to the Act came into force.

19. Mr [NAME] explained his reference in paragraph 7 & 8 of his statement [41] to a Mr [NAME] were to the [NAME] [NAME] of another home on the site which had been subject to a refusal order application CHI/43UF/PHM/2023/0001. [NAME] had been acting for the home owner in respect of the sale of

5 that home as well. As a result, he stated he had suspicions that they were manipulating sales to ensure they progressed and that the information contained within a Schedule 2 notice being served was inaccurate.

20. Mr [NAME] confirmed he personally had not spoken to Mr [NAME] or attempted to make contact to avoid any allegation of sale blocking being levelled against him.

21. Mr [NAME] explained he had not served the application until after the Tribunal acknowledged safe receipt on 19th December 2023 due to issues in the matter of [ADDRESS] [2014] UKUT 0351 (LC). As a result, it was his practice to not serve the application until the same had been received by the Tribunal and he stated this was in accordance with the Practice Direction of Sir [NAME] of September 2013. Notice was given on 19th December 2023 [10].

22. Miss [NAME] then confirmed her witness statement was true and accurate [37-39].

23. Mr [NAME] had no questions for her.

24. The Tribunal questioned [NAME] as to her conversation with Mr [NAME]. She had not kept any contemporaneous note but believed she had the conversation on 14th December 2023. She explained who she was and that she was telephoning from the Applicants, and it was in connection with the Schedule 2 Notice received. She stated that she told him they had a record he had previously enquired about a home at another park [23] when he had stated he had a dog and a cat as well as having his son living with him.

25. Miss [NAME] stated that Mr [NAME] told her he did have a cat but the dog belonged to his son. His son would mainly live with his girlfriend although he would have a bedroom at the property.

26. Miss [NAME] explained she simply listened to the explanation given, asked no follow up questions and ended the call. She said she did not challenge Mr [NAME] in order to avoid accusations of sale blocking.

27. She stated she reported her concerns to Mr [NAME] as she was not happy with the explanation given the amended Schedule 2 Notice indicated that 3 cars would be parked on the site. She

6 stated they would have had no issue over the cat (a single cat is allowed under the Site Rules [12]) but even this had not been disclosed which led her to believe the information contained on the Schedule 2 Notice [13 & 14] was untrue.

28. In summing up Mr [NAME] stated it was for the Tribunal to determine whether or not a refusal order should be made. In his submission the issues over the Schedule 2 Notice give reasonable grounds to suspect that if the sale is allowed to proceed a dog will be bought onto the site. In his submission it is the agents manipulating the process to ensure the sales proceed.

29. Mr [NAME] stated he does not believe the dog will be kept off the site. He suggests that the dog is in fact a family pet and not that simply of the son. Further he suggests on the basis of the evidence that the son will be living on the site for at least part of the time. He suggests the fact that 3 cars are referenced on the amended Schedule 2 notice is because at least one belongs to the son. The Respondent has put forward no evidence to rebut this belief.

30. Mr [NAME] in reply explained he had a copy of the original agreement given to Mr and Mrs [NAME] being dated 6th April 1993. Mrs [NAME] had pre-deceased her husband. He was satisfied it was an old agreement and hence the need to serve a Schedule 2 Notice.

31. Mr [NAME] believes Miss [NAME] should not have contacted Mr [NAME] directly. He asserted that Mr [NAME] feels intimidated.

32. He explained neither he nor his office complete the Schedule 2 notices. [NAME] and [NAME] complete although his office then forward them on as the [NAME] agent.

33. Mr [NAME] explained he was told by Mr [NAME] he had no dog. His son has a dog and the dog might visit with him. After Mr and Mrs [NAME] had viewed and made an offer which was accepted, they had been given a Schedule 1 Notice together with a copy of the site rules [11 & 12].

34. Mr [NAME] relied on a definition of the word “reside”. He stated that it meant someone was living permanently at the property. In this case there was no intention for the son to live permanently.

7 35. Mr [NAME] upon questioning by the Tribunal stated he had been on annual leave when asked why there were no statements or the like from any person. He stated that he just relies with what is on the Schedule 2 notice and [NAME] confirmed.

36. In response to the Applicants request for reimbursement of their Tribunal fees he stated that the Respondent was not in a position to pay the same.

37. Mr [RESPONDENT] replied briefly taking issue as to the fact there was no evidence as to how frequently Mr and Mrs [NAME] son would visit and stay. Further the Schedule 2 notice served contained false information in that the existence of the cat had not been disclosed. He stated this gave the Applicant a reasonable suspicion which could have been rebutted by evidence which the Respondent had failed to provide.

38. Mr [RESPONDENT] confirmed he was making no application for costs pursuant to Rule 13 of the Tribunal Procedure Rules but sought the reimbursement of the fees paid totalling £300. In his submission given the inconsistencies they had no choice but to make the application. Decision

39. We considered carefully all the written and oral evidence together with the parties’ submissions.

40. Essentially it was conceded by Mr [NAME] that this was an “old agreement” for the purposes of the Act being one granted prior to 2013. As a result, prior to any sale a Schedule 2 notice must be served.

41. The first notice was served on 13th December 2023 bearing signature of the [NAME] dated 5th December 2023 and [NAME] dated 9th December 2023. The Application is dated 15th December 2023 and a copy was given to the Respondents on 19th December 2023. We are satisfied that the application for a refusal order was made within the statutory period of 21 days and notice was given to the Respondent.

8 42. The Buyers details were obtained, and they were also made aware of the application. Save for the email which Mr [NAME] forwarded and what he says as to the conversation he had with Mr [NAME] we have nothing further from them.

43. On the face of the Schedule 2 notice there are no grounds for granting a refusal order. However, Mr [NAME] points out that it must be a presumption that such notice is filled in truthfully and to the best of the parties’ knowledge who are completing the same. Mr [NAME] states it was not himself or his agency but the [NAME] and the Buyers who completed the relevant sections. It is they who have signed the same.

44. We are satisfied that Mr [NAME] submission is correct. We do not accept that it is for a site owner to simply receive a Schedule 2 notice and be unable to apply for a refusal order even if they know the notice to be untrue and to not provide complete and proper disclosure. To find otherwise would in our judgment be perverse.

45. We are satisfied on the evidence that the Applicant raised a query as to the notice and then received the amended form within the bundle [13 & 14]. This notice referred to [NAME] having three vehicles and stated, “No dogs and no other animals”. This later statement is untrue. Mr [APPELLANT] relies on the email from Mr [APPELLANT] to the Applicant dated 14th December 2023 in support of the case in which Mr [NAME] admits to his intention to have a cat residing but denies a dog.

46. It is clear all versions of the notice 9and we had sight of three different notices at the hearing) do not provide full disclosure in relation to the pets that will be residing at the home. Mr and Mrs [NAME] have a cat and that cat will live with them. In none of the forms provided was this mentioned. We do not understand why, given under the site rules a single cat would be allowed. On balance we are satisfied that doubt has been cast as to whether or not a dog would be living at the home if [NAME] purchased the same.

47. The evidence as to the dog is inconclusive. The arguments about whether or not someone would “reside” smacks of semantics although the Tribunal is satisfied that in fact someone can reside in two places. Plainly if son and the dog are spending significant part of each week at the home it may be said they are residing there and

9 could also be residing for the remainder of the time with the son’s girlfriend.

48. We were surprised no further evidence was adduced by the Respondent including evidence directly from Mr and Mrs [RESPONDENT]. Without that, on a balance of probabilities we are satisfied that the dog will be residing on the site.

49. In conclusion we are satisfied that we should grant to the Applicants a Refusal Order preventing the assignment of the pitch fee agreement from the Respondent to Mr and Mrs [RESPONDENT].

50. Turning now to the question of reimbursement of fees. There is no presumption that simply because an order is made that an order requiring a party to pay the fees will be made. However, taking account of our findings and all the circumstances of the case we are satisfied that the Applicants had no choice but to bring the application and it is reasonable for these fees to be reimbursed. We order that the Respondent shall repay the fees totalling £300 within 28 days of the issue of this Decision.

RIGHTS OF APPEAL 1. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application by email to [EMAIL]

2. The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.

3. If the person wishing to appeal does not comply with the 28 day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.