RESIDENTIAL PROPERTY TRIBUNAL SERVICE Page 1 of 7. Cookham Common, Thatcham, Berks. 12 Laburnum Rise RG19 8DW. 3rd August 2011

Transcription

1 RESIDENTIAL PROPERTY TRIBUNAL SERVICE Page 1 of 7 R Residential Property Tribunal case no. CAM/OOMB/PHC/2011/0003 Site Park Home address Applicant Respondent Date of Application Type of application Tribunal Date and place of hearing: Cookham Common, Thatcham, Berks. 12 Laburnum Rise RG19 8DW Marilyn Hooper represented by her husband, Michael Hooper Peter L. Pratt represented by Mr. Robin Townsend, solicitor 3rd August 2011 to determine whether there has been a breach of the express or implied terms of the Applicant's agreement with the Respondents and, if so, whether compensation should be awarded Bruce Edgington lawyer chair David Brown FRICS MCI Arb Adarsh Kapur 18th October 2011 at 10 Alfred Place, London WC1E 7LR (room 7) DECISION The correct Applicant is Marilyn Hooper and her name is substituted as Applicant. 2. It is the decision of the Tribunal that the Respondent site owner, Peter L. Pratt, is in breach of the terms of the pitch agreement, in that he agreed an increase in the pitch fee on the 5th October 1998 immediately prior to the assignment of the pitch agreement on the same date to the Applicant when the pitch fee review date specified in the agreement is 1st January in each year. 3. The Tribunal awards the Applicant compensation of which is payable by the Respondent on or before the 15th November The Tribunal also orders the Respondent to refund the fee paid to this Tribunal in the sum of 150 on or before the 15th November An application by the Applicant for the refund of expenses incurred is refused. udiciary.gov. uk/files/ /August/CAM 0 OMB PH /06/2 01 4

2 RESIDENTIAL PROPERTY TRIBUNAL SERVICE Page 2 of 7 6. For the purpose of reviewing the pitch fee at the next review on 1st January 2012, the Tribunal finds that the present pitch fee should be 1, calculated in accordance with the Schedule below. Reasons Introduction 7. Marilyn Hooper, then known as Foster, has been the owner of a park home known as 12 Laburnum Rise situated on the site since 5th October This application was made in the names of Mr. and Mrs. M. Hooper. As Mr. Hooper has never been a party to the pitch agreement, he agreed at the outset of the hearing that it was his wife who should be the correct Applicant. 9. The site owners at the time the pitch agreement was entered into were what has been described by Mr. Pratt as the Pratt family and the Passingham family. The Passinghams subsequently sold out to the Pratts. Mr. Pratt then told the Tribunal that he and his former wife divorced leaving Mr. Pratt as the sole site owner after the financial settlement between them. 10. The original application complained that the Respondent had altered the pitch fee immediately before the assignment of the pitch to the Applicant with the intention of increasing the pitch fee over and above that to which the site owner was entitled. The pitch fee review date in the pitch agreement is 1st January in each year and this increase was on the 5th October The main criteria used to increase the pitch fees is the retail prices index (RPI). By increasing the fee part way through the year, the next review on the 1st January 1999 created, so it is alleged, an artificially high fee because RPI was applied to a higher figure than the one settled in January This has then been compounded until now when, according to the Applicants' calculations, the sum of has been overpaid up to 2010 and the current pitch fee should be 1, per annum and not the 1, currently charged. 12. The Respondent's case, according to the papers and confirmed at the hearing is (a) the pitch fee increase on 5th October 1998 was agreed and the Tribunal should not therefore seek to go behind it, (b) the claim is statute barred and (c) the RPI is only one of the criteria to be used on pitch fee increases. 13. Procedural Directions from the Tribunal were given ordering the filing of evidence from both sides and timetabling the case until this hearing. As this was only an argument about the legal interpretation of the pitch agreement, the Tribunal and the parties agreed that no site inspection was necessary. The Agreement between the Parties 14.A copy of this was submitted with the application and is stated to commence on the 21st April It appears to be broadly compliant with the Mobile Homes Act 1983 ("the Act") as it was then drawn. It confirms that the pitch fee review date is the 1st January in each year and that any review shall take into account the RPI, any sums spent by the site owner for the benefit of the occupiers and any other relevant factors. 00MB PH... 17/06/2014

3 RESIDENTIAL PROPERTY TRIBUNAL SERVICE Page 3 of 7 The Law 15. The main Statutory authority is the Act as amended. As from the 30th April 2011, much of the jurisdiction relating to park homes previously exercised by the court was transferred to the Residential Property Tribunal. 16. The main function of the Act is to protect park home owners. There are certain minimum clauses in any agreement between a site owner and a park home owner which must be included. If they are not there, they will be deemed to apply. 17. Of relevance to this particular case are paragraphs 16 and 17 of Part 1, Chapter 2 of the 1st Schedule the relevant parts of which say:- /6. The pitch fee can only be changed in accordance with paragraph 17, either-- (a) with the agreement of the occupier, or (b) if the (Residential Property Tribunal) on the application of the owner or the occupier, considers it reasonable for the pitch fee to be changed and makes an order determining the amount of the pitch fee. 17(1) The pitch fee shall be reviewed annually as at the review date. (2) At least 28 clear days before the review date the owner shall serve on the occupier a written notice setting out his proposals in respect of the new pitch fee. (3) If the occupier agrees to the proposed new pitch fee, it shall be payable as from the review date (4) If the occupier does not agree to the proposed new pitch fee--- (a) the owner may apply to (the Residential Property Tribunal) for an order under paragraph 16(b) determining the amount of the new pitch fee; 18. Paragraph 18 sets out those matters to which particular regard must be had which include money spent by the site owner on improvements or any decrease in the amenity of the site. Paragraph 20 says that there is a rebuttable presumption that the pitch fee shall increase or decrease in line with RPI. 19. The Mobile Homes Act 1983 (Jurisdiction of Residential Property Tribunals) (England) Order 2011 amends the Housing Act 2004 by extending the powers of a Residential Property Tribunal as follows:- "(5A) When exercising jurisdiction under the Mobile Homes Act 1983, the directions which may be given by a tribunal under its general power include (where appropriate)--- (a) Directions requiring the payment of money by one party to the proceedings to another by way of compensation, damages or otherwise; (b) (d) (inapplicable)" 20. The Residential Property Tribunal Procedures and Fees (England) Regulations 2011 provide, in Regulation 50, a power to order one party to reimburse any fee paid by an applicant. No criteria are set out but it is clear that such an order should not be made unless a Tribunal considers it to be just and equitable. 21. Paragraph 12 of Schedule 13 of the Housing Act 2004 enables a Tribunal to reimburse costs and expenses incurred by one party as a result of another party behaving vexatiously, frivolously or otherwise unreasonably in connect with the proceedings themselves. 17/06/2014

4 RESIDENTIAL PROPERTY TRIBUNAL SERVICE Page 4 of 7 The Hearing 22. Those attending the hearing were Mr. and Mrs. Hooper, Mr. Pratt and his son and Mr. Robin Townsend, a partner in the solicitors' firm Saulet Ashworth, who represent the Respondent. 23. As the issue was a narrow one, the Tribunal chair went through each element of the Respondent's case and heard from the parties as appropriate. 24. As to whether the pitch fee was agreed, Mr. Pratt said that he had witnessed the agreement and it was his signature on the endorsement reflecting the agreement. He had to concede that this was not on the agreed review date and that there was another increase as from the 1st January 1999 i.e. less than 3 months' later. He agreed that this was a breach of the statutory provisions although he later expressed the opinion that the October agreement was based on the RPI pertaining on 1st January He could not produce any evidence to confirm this. He also had some difficulty in accepting that as this 'agreement' was reached immediately prior to the assignment by a personal representative of a deceased pitch occupier who would not be affected by the pitch fee increase, it could not really be described as an 'agreement' in the accepted sense of the word. Furthermore, he was not clear about whether there had been increases in the pitch fee during the years which were not recorded on the endorsements. 26. The Tribunal only had evidence of pitch fee increases on the 1st January and then on the 5th October 1998 followed by increases on 1st January Mr. Pratt said that the evidence of these increases is only kept for a short time after the increase and he had no evidence as to increases in the intervening years. 27. The next part of the Respondent's case was that the application was statute barred. The Tribunal chair discussed this issue with Mr. Townsend, on behalf of the Respondent. It was put to him that the statutory regime set out the calculation of the pitch fee. The limitation period simply affected enforceability. Thus, even accepting the limitation period, the Tribunal had to look at whether the agreement had been complied with so that the 'starting point' within the limitation period could be ascertained. 28. In other words, if the period for which the Applicant could recover overpaid rent was inclusive, then the Tribunal would have the ability to look back to 1998 and before to ascertain whether the pitch fee had been increased lawfully so that the correct starting point in 2006 could be ascertained. Mr. Townsend did not seek to argue against this analysis. 29. When asked about whether all increases in pitch fees on his site had been just in line with RPI, the Respondent confirmed that all increases were 'predominantly' in line with RPI save for individual cases where increases may have taken account of arrears. He did not seek to suggest that there had been years when increases had been more than the RPI because of increases in services or any other reason. 30. When the question was put to him, Mr. Pratt denied that he increased pitch fees immediately prior to assignments as a general rule. It is also significant to note that throughout the written evidence and the hearing, Mr. Pratt did not seek to suggest that the figures and calculations prepared by Mr. Hooper were wrong. He simply /August/CAM 0 OMB PH... 17/06/2014

5 RESIDENTIAL PROPERTY TRIBUNAL SERVICE Page 5 of 7 said, in effect, that they were irrelevant because the increase in 1998 was lawful. 31. At the end of the hearing, the Applicant applied for an order that the fee paid to the Tribunal should be refunded and that she should be refunded copying expenses of 60 and train fares of for the hearing bundles and attending the hearing respectively. She did not proffer any grounds for the making of the order relating to reimbursement of expenses other than the fact that the Respondent had, overall, acted unreasonably. Conclusions 32. Based on the facts either agreed or found by the Tribunal, it concluded that:- Despite the lack of records, it is likely, on the balance of probabilities, that there were pitch fee increases during the years and from 2003 onwards. That these increases were in line with increases or decreases in RPI and they should have been as at October in each year which is probably the last RPI figure published before the notice of increase is served on the mobile home owner 'at least 28 days before' the review date on the 1st January. That the increase on the 5th October 1998 was unlawful because (a) it was not on a review date and (b) it was not an 'agreement' in the accepted sense of the word because the person agreeing on behalf of the mobile home owner would not be bound by it. It was simply a 'device' to ensure that the Applicant paid more than the previous owner. That the correct pitch fee should now be 1, as set out in the Schedule. The Tribunal has no power within the present application to fix the pitch fee but no doubt when the next review comes about either the parties or an RPT will take this into account. 33. In view of the circumstances and facts found by the Tribunal, it considers that the Applicant should be compensated. The Tribunal has been able to calculate what the current pitch fee should be from the figures set out in the Schedule to this decision. However, the Tribunal has little information about how much the pitch fee has actually been in the intervening period apart from the endorsements which ceased in As the figures put forward by the Applicant for the losses sustained have not been challenged by the Respondent, the Tribunal adopts those figures and orders the Respondent to pay the Applicant for the 6 year period inclusive made up as follows:- Year Amount(E) The Tribunal considered whether it was in fact bound by the statutory limitation period which, for breach of a contract not under seal, would be 6 years. There has been much debate about whether a Leasehold Valuation Tribunal is bound by the limitation period. It concluded that this Tribunal was probably not so bound. Its function was (a) to determine whether there had been a breach of contract which would amount to a breach of a statutory provision and (b) to consider an award of money which could gov.uk/files/2011/august/cam_0 OMB PH... 17/06/2014

6 RESIDENTIAL PROPERTY TRIBUNAL SERVICE Page 6 of 7 be "compensation, damages or otherwise". In other words it was not simply concerned with compensation or damages. 35. Nevertheless, it did consider that in this particular case, the award it was making was purely a damages award for breach of contract and that this should amount to no more than 6 years' loss. However, it considered that it could go back more than 6 years to determine what the starting point should be in that calculation. It would be wrong and against public policy for a party in breach of contract to benefit from a breach started many years ago which had distorted the figures over those years with the result of potentially depriving the innocent party of damages properly payable. 36. As to the Applicant's claims for a refund of the fee paid to the Tribunal for this application and for expenses, the Tribunal finds that in view of the Respondent's behaviour and refusal to discuss matters with the Applicant, it would be just and equitable to order that the fee be reimbursed. The result of the application is also taken into account. 37. With regard to other expenses, no order is made. For the Tribunal to make such an order, it is necessary for the Applicant to cross a very high threshold in terms of unreasonable behaviour in connection with the proceedings themselves, and such threshold has not been crossed by the Respondent in this case. One may have an opinion about behaviour before the application was made but in order to make such an order, the Tribunal has to find that the behaviour complained about relates to the conduct of the application itself. The Respondent has not behaved in an unreasonable way as far as this application is concerned. 38. As to compliance, it is hoped that the Respondent will comply with the terms of this decision as ordered. If he fails to do this then the Applicant will be able to apply to the county court for an order enforcing the order for payment of money. The reason why an application to the court would be necessary is that although Parliament has given the decision making process to this Tribunal for many matters under the Act, enforcement remains with the county court. 39. Any appeal against this decision must be made to the Upper Tribunal (Lands Chamber). Prior to making such an appeal you must apply, in writing, to this Tribunal for permission to appeal within 21 days of the date specified below stating the grounds on which you intend to rely in the appeal. SCHEDULE Year Previous October RPI Maximum rent recoverable http ://www. residential-property udiciary gov. uk/files/2011/august/cam 0 OMB PH... 17/06/2014

7 RESIDENTIAL PROPERTY TRIBUNAL SERVICE Page 7 of Bruce Edgington Chair 20th October 2011 http :// erty judiciary. gov. uk/files/2011/august/cam_oomb PH... 17/06/2014