FIM Courts &Tribunals Service

Transcription

1 FIM Courts &Tribunals Service Residential Property Tribunal case no. CAM/00KF/PHI/ Site East Beach Park, Shoeburyness, Southend-on-Sea, Essex SS3 9SG Park Home address Pitch 43 Applicant Respondent Tingdene (East Beach) Ltd. through its agent Tingdene Parks Ltd. William James and Enid Chandler Date of Applications 23rd February 2012 Type of application The Tribunal Date and venue of hearing to determine pitch fee for the address Bruce Edgington (lawyer chair) Marina Krisko BSc (Est Man) FRICS Chris Gowman BSc MCIEH MCMI 22nd May 2012 Southend Magistrates Court, Victoria Avenue, Southend-on-Sea, Essex DECISION 1. The Tribunal determines that the pitch fee for the address shall be 1, for the year up to 31st March 2012 but payable only from 15t December As far as the Applicants' claim for legal costs is concerned, the decision of the Tribunal is the Respondents are not liable to pay anything towards such costs. Reasons Introduction 3. The Respondents are the occupiers of pitch 43 on the 1st Applicant's park home site at East Beech, Shoeburyness in Essex. The site is managed by the 2 nd Applicant. The written evidence is that the Applicants always intended to improve the site in 3 phases and some

2 of this work was being undertaken when the Respondents came on the scene. 4. The chronology is that the 1st Applicant purchased the site in The Respondents came to the site on or about the 23rtt June 2009 and paid a deposit of 1,000 for the purchase of a park home to be situated on pitch 43. The park home was ready and placed on the pitch on the 4th December 2009 and the Respondents signed the occupation agreement on the 18th December 2009 and took occupation. 5_ One of the terms of the agreement was that the Respondents would pay a pitch fee from 18th December 2009 of 1, per annum payable by 12 instalments of It was also agreed that the pitch fee would be reviewed on 1st April in each year. 6. On the 5th February 2011, a letter was written to the Respondents, explaining that as from the 1st April the pitch fees would be increased in line with the Retail Prices Index ("RPI") by 7.48 per month i.e. 4.8%. This notice was withdrawn when the Applicants wrote a further letter on the 27th October This letter explained that the 5th February letter was defective and said that the pitch fee proposed would be the same as in the 5th February letter but payable only from 1st December The letter pointed out that the relevant RPI figure in February was 4.8% whereas the September figure was 5.6%. 7. The Respondents acknowledged receipt of that letter in writing on the 18th November 2011 and the relevant part of what they said is "As previously stated by us we do not believe your letter constitutes a review of the pitch fee. We shall continue to pay your increase from December l sr under protest. We have accepted your promised cheque for the overpayments we have made". 8. On the 15th February 2012, the Respondents wrote a letter to the Applicants' solicitors saying that they did not believe that a review had been carried out within the context of the agreement. It added "We rightly beleive (sic) that we are being overcharged by some per year for identical pitch size and services supplied by your client in comparison to some of our neighbours. If Tingdene are prepared to reduce our pitch fee by the per year then we would happily agree to the increase of 4.8% for this year". 9. This application was then made on the 23rd February 2012 and the Respondent's reply said a number of things which can, perhaps, be summarised as follows:-. The park is for people over 55 and they bought their park home for 'peace and tranquillity' which they had from 2009 to 2011 When the notice of increase in pitch fee arrived in February 2011 several occupiers agreed that 4.8% was not justified because 'a continuous stream of new homes were being

3 delivered and sited from September 2010' and there was extra noise. The top road surface and signage were not finished Part 3 of the pitch agreement had been ignored At a meeting in early July 2011 they were promised extra facilities such as lighting, gate pillars, tidying up,and road repairs which were carried out Following the re-service of the notice of increase in October, all the residents except the Respondents withdrew their opposition When they signed their pitch agreement the site owner 'did not supply us with all the necessary information' and 'they have not acted morally or ethically in their business practices with us and others'. 10. A directions order was made by the tribunal chair which stated that the Tribunal considered that this matter could be dealt with on the basis of written representations but that if any party requested a hearing, one would be arranged. The Respondents asked for a hearing in a letter to the Tribunal dated 16th March A hearing bundle was lodged in good time which included copies of correspondence passing between the parties. The Applicants' case was stated to be, in essence, that they have now complied with the terms of the occupation agreement, that they have been improving the site and the Respondents were aware of this when they bought their park home and that what they may be charging for other pitches is neither here nor there. Further, they say that the Respondents' behaviour has been unreasonable and they should therefore pay the Applicants' legal costs estimated to be 7, The Applicants' solicitors also lodged what they refer to as a skeleton argument although it is, in fact, a full statement of case running to some 13 pages. It adds little to the statement of case in the bundle. The Occupation Agreement 13. The agreement produced seems to comply in all material respects with those terms imposed by the Mobile Homes Act 1983 ("the 1983 Act") as it was in December The only material amendment since then has been to give this Tribunal, rather than the court, jurisdiction to deal with the approval of pitch fees if agreement cannot be reached. 14. These terms are intended to provide protection to park home owners because the site owner is perceived to have the 'upper hand' in an unequal negotiating position. As far as pitch fees are concerned, the provisions are quite straightforward. The initial pitch fee is negotiated between the parties and there is no express or implied term in such agreement that the site owner must disclose all other pitch fees on site. However, the site owner can only increase the pitch fee with the agreement of the occupier or with the permission of this Tribunal.

4 15.There has to be a review of the pitch fee_ Notice then has to be given to the occupier of the result of that review within certain time constrains set out in the agreement prior to the 'review date'. In this case, that date is fixed by the agreement as the 1st April in each year. Although the Respondents have said, in the correspondence, that the review does not comply with the agreement, there is no point being taken about the time limits in respect of either the first or the second notices. In other words, if there has been a valid 'review' then it is accepted that the time limits have been complied with. The Tribunal agrees that the time limits have been complied with. 16. As to the pitch fee set out in the agreement, this is a contractual matter. In this case, the pitch fee was agreed at the commencement of the term, This Tribunal has no power to interfere with what was agreed. Unlike the Rent Assessment Committee in its jurisdiction to assess fair and open market rents, there is no suggestion in either the agreement or the 1983 Act that the Tribunal starts a de novo consideration of the open market position with regard to pitch fees either on the same site or other sites. 17.As to the amount of any increase or decrease in the pitch fee, the starting point is in clause 20 of the agreement i.e. a presumption that the pitch fee shall increase or decrease by no more than the RPI as from the last review date or the commencement of the agreement, whichever is the later. The wording of this provision is interesting and has a bearing on this case. It does not say that that the change shall be `up to' the level of change in the RPI. It says that a change shall be `no more than' the change in RPI. 18. This may appear to be a subtle difference, but it is significant because it says, in effect, that any change will be in line with the increase or decrease in the RPI unless there are other factors which come into play. 19. The Respondents have said in correspondence that there has been no proper 'review' of the pitch fee and they refer to guidance issued by the relevant government department which says, in effect, that a demand for a new rent is not necessarily evidence of a review. Whilst the letter of the 5th February is somewhat perfunctory, the letters of the 27th October clearly state that there has been a review. 20. Clause 16 in the agreement says that, upon application, the Tribunal has to determine 2 things. Firstly that a change in the pitch fee is reasonable and, if so, it has to determine the new pitch fee. There is no requirement to find that the level of the pitch fee is reasonable. 21 _There are other matters which may be taken into account, depending on the circumstances. Clause 18 says that when the pitch fee is determined, regard shalt be had to sums expended by the site owner on improvements which have been the subject of consultation or any

5 decrease in the amenity of the site. It also mentions any change in the law, but there has been none which is relevant to this case. Legal Costs 22.The Applicants also claim their legal costs from the Respondents in the sum of 7, The Residential Tribunal is a `no costs' regime, in general terms. The pitch agreement does not permit recovery of such costs. The basis for the claim is contained in Schedule 13 of the Housing Act 2004 ("the 2004 Act") which states that a Tribunal may order a party to pay another party's legal costs in the following circumstances which are or may be relevant to this application:- That other party has failed to comply with an order made by the Tribunal or That other party "has, in the opinion of the tribunal, acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably in connection with the proceedings". 23. The limit of such costs in the 2004 Act is 500 but this was increased to 5,000 in the Mobile Homes Act 1983 (Jurisdiction of Residential Property Tribunals) (England) Order 2011 which came into effect on the 30th April Site Inspection 24. The members of the Tribunal inspected the site on a reasonably warm, sunny morning in the presence of Mr. and Mrs. Chandler, Mr. Pearson on behalf of the Applicants and their solicitor Ms. Kirsty McLennan. The site appeared to be neat and tidy with over 40 park homes and a site office at the entrance. The Tribunal was told that 8 pitches remain to be filled with 4 reserved and 4 available. 25.The general impression given was that most, if not all, the park homes on this site were reasonably new and the homes themselves and the gardens and parking spaces were neat, tidy and gave the appearance of being well maintained. The Respondents claimed that the road surface was not as good as it should be and that there were many tripping hazards. The Applicants accepted that when the last park home is installed, the road will have a final 'top surface' placed on it. The members of the Tribunal considered that the road was in a reasonable state of repair and the drain covers etc. were reasonably flush with the road surface. They have seen far worse. 26. The Respondents clearly take great pride in the appearance of their park home and pitch. They complained of internal items in their home which need attention but this was not a matter for this Tribunal. Hearing 27. Those who attended the hearing were the same as those at the site inspection. After the members of the Tribunal were introduced, the chair asked the Respondents what their present complaint was. They said that they believed that they had been misled into paying a higher

6 pitch fee than was reasonable when they purchased their park home. They had no idea that other occupiers were paying less in pitch fees. 28. They believe that if they had been given full details of who was paying what at the outset, they would have been able to negotiate less. They also believe that because the road does not have its final surface, the pitch fee should be reduced accordingly. 29. They believed that the Tribunal could force the Applicants to 'negotiate' with them and dictate a 'reasonable' pitch fee. The Tribunal had to inform them that this was not the case. The Tribunal has no such power. They accepted that when they first occupied their pitch, they were fully aware of the plan to develop the site and had no objection to this. They agreed to pay the pitch fee in their agreement knowing that this development would be going on. 30. Finally, in terms of their current position, they said that they had no evidence that a proper 'review' of the pitch fee had taken place e.g. had there been a minuted company meeting or anything of that nature. Mr. and Mrs. Chandler accepted that if their pitch fee was reduced to the level requested, then they would agree to the RPI increase as claimed. 31. The Applicants, through Mr. Pearson, said that the pitch fee was less for the first phase of occupiers because it was an empty site when they took occupation and they had to offer an incentive. He gave no indication that they were prepared to reduce the Respondents' pitch fee. 32. As to costs, it was put to the Claimants that with such a relatively simple point of law and process, it may be considered to be an extravagance to employ solicitors throughout. The response was that the Applicants were entitled to take such advice and have such representation as they thought fit_ This is obviously a true statement of fact but did not answer the question raised. Conclusions 33.As to whether a change in the pitch fee is reasonable, the Tribunal is conscious of the wording of clause 20 i.e. that the starting point is a change in accordance with RPI. Where, as in this case, there has been a change in RPI, one is almost bound to conclude that a change is reasonable. The Tribunal does so find in this case. 34.As to the actual amount of that change, it is accepted that it is in line with the RPI and that the time limits imposed by the 1983 Act have been complied with. The Tribunal considered that the pitch fee should be as claimed. Whilst it is not actually relevant to the issue, the Respondents should know that the members of the Tribunal found the site to be generally well maintained and considerably better than many. The pitch fees are generally in line with other sites.

7 35. There is no fixed process of pitch fee review. A director or employee with delegated responsibility could undertake a review by themselves. The Tribunal was satisfied that the pitch fee had been reviewed for the purpose of the 1983 Act. 36.0n the question of costs, the starting point is that this Tribunal is not a court and there is always a presumption that there will be no costs orders. The question which the Applicants ask is, in effect, because the Respondents' case has no merit, then they have acted unreasonably and therefore the threshold in Schedule 13 of the 2004 Act has surely been crossed? 37. With respect to them, that cannot be right as a proposition. The Respondents were entitled to ask the Tribunal to say what the pitch fee should be. That is engrained into the 1983 Act. If the occupier does not agree the pitch fee then an application has to be made to this Tribunal and it would be iniquitous for there to be a general proposition that if there was no agreement, the occupier would have to pay the site owners' legal costs for an application. 38.The unreasonable behaviour referred to in the 2004 Act has to relate to conduct in the proceedings themselves, not just the simple proposition that because they have no case, they have acted unreasonably. In this case, it cannot be said that the Respondents have acted unreasonably 'in connection with the proceedings'. The Applicants may consider them to have acted unreasonably generally in connection with this dispute, but that is not the same thing. 39. Parties are always encouraged to seek legal advice. If the Respondents had done so, then this case may well not have reached a hearing. The Applicants did. This case was straightforward for an experienced site owner. The restrictions on who can represent a limited company do not apply in Tribunals. If the Applicants were concerned about legal costs then they were able to represent themselves. 40.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. Bruce Edgington Chair 25th May 2012