Tenant Not Entitled to Occupy Mobile Home Without Commission Payment

OUTCOME: Dismissed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : BIR/00CT/PHC/2023/0004 Property : 1 [ADDRESS], [POSTCODE] Applicant : [redacted] : n/a Respondent: [redacted] [NAME] [RESPONDENT] [COMPANY] : n/a Type of [NAME] : An [NAME] under section 4(1)(a) of the Mobile Homes Act 1983 (as amended) for the Tribunal to determine any question arising under the Act or any agreement to which it applies. Tribunal members : Tribunal Judge C Kelly Venue : Paper determination Date of decision : 17 May 2024

DECISION

This [NAME]

1. This is the determination of the Applicant’s [NAME] made pursuant to section 4(1)(a) of the Mobile Homes Act 1983 (as amended) (“the Act”), in which the Applicant seeks a determination of the following question:

“The question arises in connection with term 7A (5) was the payment required by the [NAME] and paid by me of 10% of the valuation of the home I inherited from my mother ie £14,000 taken legally as this is only payable when the home is sold. If it was not taken legally, can I have my money returned to me? All I wanted was to live in my [NAME] mother’s Park Home upon her death. I was the sole benefactor in her will of her estate. I did not reside with her nor did she gift it.”

(“the [NAME]”)

Relevant Procedural History

2. On 11 October 2023, the Tribunal issued directions for a determination of the [NAME]. In those directions, the Tribunal recorded the question to be determined and provided that the Respondent must prepare a reply and bundle of documents setting out its position.

3. On 3 January 223, [NAME] [RESPONDENT] [COMPANY] was added as the [NAME] Respondent pursuant to Rule 10 of the Tribunal Procedure (First-tier Tribunal) (Property Chambers) Rules 2013 (“the Rules”). [RESPONDENT] is a director of the company, [NAME] [RESPONDENT] [COMPANY], and appears to be the correct respondent to these proceedings. It does not appear that there was any legal basis to join in Mr [RESPONDENT] personally as Respondent.

4. The [NAME] was given permission to prepare a statement in response to the [NAME] Respondent’s position by 16 February 2024.

5. The parties agreed that this [NAME] could be dealt with on paper based the submissions made by them in writing.

Key background

6. The Applicant inherited a mobile home sited on Pitch 1, [ADDRESS], [ADDRESS], Warwick, following the death of her mother. The residential park home estate is known as “[ADDRESS]”.

7. The Applicant had the [NAME] contract in respect of the mobile home with the [NAME] Respondent. The document relied upon in the proceedings is an agreement dated 3 November 1997, which is expressed as being between “[COMPANY]” and “Mr and Mrs [NAME]” (“the [NAME]”). Mrs [NAME] was [NAME]’s mother. It would seem that the interest of [RESPONDENT] has passed to the [NAME]

Respondent and there is no dispute that the [NAME] Respondent is the owner of the [NAME].

8. The Act implies a number of terms into any [NAME] agreement of this kind. The [NAME] provides, insofar as relevant:

“Sale of Mobile Home

8.(1) [NAME] shall be entitled to sell the mobile home and to assign the agreement to a person approved of by the owner, whose approval shall not be unreasonably withheld.

(2) Where [NAME] sells the mobile home, and assigns the agreement, as mentioned in sub-paragraph (1) above, the owner shall be entitled to receive a commission on the sale of at a rate not exceeding such rate as may be specified by an order made by the Secretary of State. The maximum rate is presently fixed at 10% by the Mobile Homes (Commissions) Order 1983 (S.I 1983/748)

Gift of Mobile Home 9. [NAME] shall be entitled to give the mobile home, and to assign the agreement to a member of his family approved by the owner whose approval shall not be unreasonably withheld.”

9. On 7 January 2023, Mrs [NAME] passed away. Nobody was living with her at that time in the home. On 17 January 2023, the Applicant contacted Ms [APPELLANT], on behalf of the [NAME] Respondent, to inform it that she was the [NAME] of the home.

10. On or about 20 January 2023, there was a conversation between the Applicant and Mr [RESPONDENT], the essence of which, was that Mr [RESPONDENT]’s view was relayed that simply because the interest in the home passes via the will, does not mean the right to occupy it passes also. During the call, there was a discussion about securing a valuation of the home, and that payment of 10% of that sum would secure the Applicant the right to occupy.

11. A new agreement was reached, in writing, between the Applicant and the [NAME] Respondent on or around 5 March 2023. The new [NAME] agreement provided for a pitch fee of £163.15 per month, and permitted the Applicant to occupy the home with effect from 1 March 2023 (“the [NAME]”).

12. On 21 June 2023, the Applicant emailed the Ms [APPELLANT], of [APPELLANT], seeking clarification of the position concerning the £14,000 she paid upon reaching the March 2023 agreement, as she now wished to sell the home on, and she was told by the [NAME] Respondent that the buyer would need to pay a further 10% of

the home’s value. The Applicant believed the home would sell for £180,000, and thus, this was a further sum of £18,000 to be paid to the [NAME] Respondent by reason of such sale. The Applicant suggested that only a further £4,000 should be payable, because £14,000 has been paid only a few months beforehand when she acquired the [NAME].

13. The [NAME] Respondent notes that the Applicant then sold her interest under the [NAME] to a third party.

14. On 28 June 2023, Mr [RESPONDENT] set out his position to the Applicant on behalf of the Respondent. He set out the position as he understood it, namely, that that:

14.1. there was no legal entitlement for the Applicant to move into the mobile home upon her mother’s death; and

14.2. that as the Applicant wished to move in, agreement was reached to pay 10% of the market value, agreed at £14,000.

15. The Applicant then made this [NAME] to the Tribunal.

The parties’ positions

16. From the documents it is apparent that the important points agreed between the parties is that:

16.1. the Applicant inherited the mobile home under the terms of her mother’s will;

16.2. the Applicant’s mother was residing in the mobile home as her sole or principal home at the time of her death;

16.3. the Applicant did not reside with her mother at the time of her death;

16.4. an agreement was reached in March 2023, by which the Applicant agreed to pay, and did pay, the sum of £14,000 to the Respondent, in return for which she had was told she could occupy the home.

17. The Applicant relies upon the content of her [NAME] notice and the correspondence lodged with it before the Tribunal and a statement provided of the relevant background. She says that:

17.1. she had confirmation from Mr [RESPONDENT]’s secretary that it would be okay for to reside in the home, but that forms would be sent out for her to sign;

17.2. that Mr [RESPONDENT] contacted her a few days after speaking to his secretary, in which he said the only way for her to reside in the home was to pay 10% of the home’s value;

17.3. that alternatively, if the 10% premium was not paid, then the alternative would to sell up; and

17.4. that she believed she acted in accordance with the Act’s requirements and that she was entitled to reside in the home as she was 67 years old.

18. The Respondent has made detailed submissions, in a document dated 2 February 2024, which was accompanies by a number of supporting documents. In essence, the Respondent’s position is that:

18.1. the Applicant does not have standing to make the present [NAME] because, at the time of [NAME] it, she was not an [NAME] of the home under the Act;

18.2. the issue before the Tribunal is about the arrangement between the Applicant and [NAME] Respondent which falls outside of the ambit of the Act because the dispute does not relate to any issue under an agreement caught by the Act;

18.3. section 3 of the Act is relevant, and in particular, sections 3(2)(b) and (4);

18.4. the effect of section 3(4) of the Act means that the [NAME] continued for her benefit, but did not permit her to take up occupation of the mobile home;

18.5. that the [NAME] excluded the right to gift the mobile home to a family member;

18.6. the Applicant’s legal entitlement was to sell the mobile home and to assign the [NAME], or to give notice to end the it;

18.7. that the Applicant was told she has no right to move into the mobile home;

18.8. the Applicant agreed to obtain a market valuation of the mobile home and that if she paid 10% of that value, she would be permitted to reside in it (she did pay that sum and she did reside in it); and

18.9. there is no liability to reimburse the sum of £14,000 to the Applicant.

19. In short the Applicant is concerned that the monies paid to the Respondent, representing 10% of the valuation of her mobile home and being £14,000, may not

have been lawfully demanded of her by the Respondent. She says she made that payment on 18 February 2023 and she says that the money was paid into the personal bank account of [RESPONDENT], who is a member of the [NAME] [RESPONDENT] [COMPANY].

20. She asks whether the payment made can be returned to her if the payment was demanded unlawfully.

The Law and the Tribunals conclusions

21. Neither party had the benefit of professional legal representation. I have sought to identify the relevant issues of law on behalf of the parties, taking account of the matters raised by them in their written submissions.

(a) Jurisdiction

22. I start with considering the jurisdictional issues raised by the Respondent. The jurisdiction of the Tribunal is conferred by section 4(1) of the Act. It is a broad jurisdiction and is stated in the following terms:

“4 Jurisdiction of a tribunal of court

(1) In relation to a protected [NAME] …, a tribunal has jurisdiction: a. To determine any question arising under this Act or any agreement to which it applies; and b. To entertain any proceedings brought under this Act or any such agreement,

subject to subsections (2) to (6).

…” 23. None of the subsections (2) to (6) are relevant in this case. The jurisdiction relates to “any question arising under this Act or any agreement to which it applies”.

24. Both parties proceed on the premise that the [NAME] is a protected [NAME] to which the Act would apply and so I do likewise. However, the Respondent’s argument is twofold: that the dispute is about a separate agreement entered into between the Applicant and the Respondent, under which, the Respondent permitted the Applicant to reside in the mobile home and (b) that the Applicant was not an [NAME] at the time of the [NAME].

25. Dealing with the latter argument first, about occupancy, I find no merit in it. Firstly, nothing in section 4 restricts applications to occupiers. The jurisdiction is broader than that, and it is to deal with any question arising under the Act or any agreement to which it applies. Further, and in any event, the [NAME] was made to the Tribunal in August 2023, at a time after which on the Respondent’s case, she has assigned her agreement to occupy the home that was reached in March 2023.

As such, the Respondent’s position clearly recognises that the Applicant is disputing an issue which arises under the Act or any agreement to which it applies and there is no dispute that the Act’s provisions applied to the agreements that existed between the parties.

26. Similarly, as to the [NAME] strand to the jurisdictional challenge, that the agreement disputed is not an agreement to which the Act applies, this is equally without foundation. The parties own documents clearly recognise that the Act applied and I have no doubt that it did so.

27. Section 1 of the Act states:

“1(1) This Act applies to any agreement under which a person (“[NAME]”) is entitled:-

(a) to station a mobile home on land forming part of a protected [NAME]; and

(b) to occupy the mobile home as his only or main residence.”

28. There is no disagreement about the fact that the purpose of the agreement reached in March 2023 was to permit the Applicant the right to occupy the mobile home as her only or main residence. I find it somewhat disingenuous on the part of the Respondent to make this assertion, given that its position throughout has been that the Act applies, and that its provisions entitle the Respondent to charge 10% of the value of the home to the [NAME] on her seeking to move into the same.

29. There could no such occupation in the home without the right to station the mobile home on the [NAME], and it follows in my judgment, that the [NAME] was a new agreement under the Act, which permitted the right to station the home on the [NAME] and to occupy it, and which itself was capable of being assignment for the benefit of the Applicant directly.

30. The Tribunal does therefore have jurisdiction to entertain the [NAME].

(b) The right to occupy the home and demand payment of £14,000

31. The Respondent’s position is that section 3 of the Act is relevant, in particular, sections 3(3)(b) and (4). I set them out as follows:

“ 3.— Successors in title.

(1) An agreement to which this Act applies shall be binding on and enure for the benefit of any successor in title of the owner and any person claiming through or under the owner or any such successor.

(2) Where an agreement to which this Act applies is lawfully assigned to any person, the agreement shall enure for the benefit of and be binding on that person.

(3) Where a person entitled to the benefit of and bound by an agreement to which this Act applies dies at a time when he is occupying the mobile home as is his only or main residence, the agreement shall enure for the benefit of and be binding on—

(a) any person residing with that person (“[NAME]”) at that time being—

(i) the widow, widower or surviving civil partner of [NAME]; or

(ii) in default of a widow, widower or surviving civil partner so residing, any member of [NAME]'s family; or

(b) in default of any such person so residing, the person entitled to the mobile home by virtue of [NAME]'s will or under the law relating to intestacy but subject to subsection (4) below.

(4) An agreement to which this Act applies shall not enure for the benefit of or be binding on a person by virtue of subsection (3)(b) above in so far as—

(a) it would, but for this subsection, enable or require that person to occupy the mobile home; or

(b) it includes terms implied by virtue of [paragraph 5 or 8A, 8B or 9 of Chapter 2, or paragraph 5 of Chapter 4, of Part I of Schedule 1] to this Act.”

32. The Respondent’s position is that section 3(4) means that “the [NAME] which continued for the Applicant’s benefit did not allow her to take up occupation of the mobile home. That Agreement excluded the entitlement to gift the mobile home to a family member as well”.

33. In [COMPANY] v [NAME] (Executors of the Estate of the Late Colin Hearne) [2020] UKUT 114 (LC), HHJ Bridge considered a succession in circumstances where a home was left to a [NAME] by reason of a variation to a will, which the FTT found did not pass, nor did the pitch agreement, by reason of the will itself by rather by reason of a subsequent deed of variation. In that appeal, which was uncontested, the appellant did not challenge the FTT’s conclusion that section 3(4) did not apply, the point being, that because the home was said not to be left pursuant to the will, the agreement would not ensure for the benefit of the owner.

34. This case is different, because in my judgment, the Applicant did indeed become entitled to the home by reason of her mother’s will. There is no concession in this case that section 3(4) does not apply and indeed, it is the Respondent’s case that it does. In my judgment, it does apply. Fundamentally, the source of the Applicant’s interest in the home is by reason of the will itself, the Applicant is the sole [NAME] under the will and whilst there was no specific legacy, identifying the home as being left to the Applicant, there was no need to do so in circumstances where she was the sole [NAME].

35. [NAME] decision is helpful to an FTT Judge determining an [NAME] of this kind on paper, without detailed submissions on relevant legal principles. In that case, the Upper Tribunal concluded that the combined effects of sections 3(3) and 3(4) of the Act was as follows:

“31. The [NAME] under [NAME]’s will (or on [NAME]’s intestacy) may succeed to the mobile home itself. But if the [NAME] has not hitherto been occupying the mobile home, he may not then go into occupation of the mobile home pursuant to its pitch agreement. Not may have given the mobile home, with the benefit of that agreement, to members of his family as an [NAME] is generally entitled to do (subject to [NAME] serving notice on the [NAME] and thereby permitting the [NAME] to apply for an order- a ‘refusal order’-preventing the gift going ahead). What the beneficial is entitled to do is to sell the mobile home, and to assist with it the benefit of the pitch agreement. This is permitted by the terms contained in paras 7A and 7B of Schedule 1: which paragraph applies depends on the date the pitch agreement was entered into.”

36. There is no express term in the [NAME] that conferred a right to occupy upon the death of the [NAME] [NAME] without such person being in occupation at the same time.

37. Therefore, in my judgment, the Applicant, having acquired title the home by reason of her mother’s will, but not being in occupation at the time of her death, was not entitled as a matter of legal right to occupy the home.

38. There is then the question of whether some other agreement or principle gives rise to the right to occupy. To the extent that the Applicant relies upon the agreement reached with Mr [RESPONDENT]’s secretary, the details of that agreement are not entirely clear, and indeed, the Applicant’s position is that documents would need to be sent out for her to sign. There is no suggestion that these documents were ever signed, or indeed, that there was any form of consideration given in respect of the any agreement, if it can properly be called that, to occupy, that might be said to have arisen through Mr [RESPONDENT]’s secretary.

39. The Applicant has not satisfied me that there was a legally binding agreement entered into with the [NAME] Respondent by Mr [RESPONDENT]’s secretary.

40. What is apparent, however, is that there was an agreement, and there seems no real dispute about his, in March 2003, the essence of which was to permit the Applicant to reside in the home. I am satisfied that there was such an agreement and indeed, that its effect was to permit the Applicant to reside in the home. There was a price to pay, however, for entering into the [NAME], and it was the sum of £14,000, being 10% of the value of the home. I find that the [NAME] Respondent was entitled to demand the payment of £14,000 as consideration for that agreement in the absence of the Applicant having any right to occupy the home on the [NAME].

41. The other ground of resistance, that the right to gift the home was prevented by the [NAME], is not something that technically needs be to decided, albeit, it would seem that there is nothing in the [NAME] that expressly forbids gifts, and indeed, there is an statutory implied term, at para 9 which states “9. [NAME] shall be entitled to give the mobile home, and to assign the agreement to a member of his family approved by the owner whose approval shall not be unreasonably withheld”. This term, however, is a term which applies during the lifetime of the [NAME] and has no relevance where the home is inherited by a [NAME] through a will or upon intestacy.

42. Accordingly, for the reasons set out, the [NAME] is dismissed.

APPEALS 1. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) then a written [NAME] for permission to appeal must be made to the First- tier Tribunal at the Regional Office which has been dealing with this case.

2. The [NAME] for permission to appeal must arrive at the Regional Office within 28-days after the Tribunal sends written reasons for the Decision to the [NAME].

3. If the [NAME] is not made within the 28-day time limit, such [NAME] must include a request for an extension of time and the reasons for not complying with the 28-day time limit; the Tribunal will then look at such reasons and decide whether to allow the [NAME] for permission to appeal to proceed despite not being within the time limit.

4. [NAME] for permission to appeal must identify the decision of the Tribunal to which it relates (i.e. provide the date, the property and case number) and set out the grounds of appeal and state the result the party [NAME] the [NAME] is seeking.

TRIBUNAL JUDGE KELLY