Government guidance on the new Implied Terms

2006-10-01  

Introduction

An Order has recently been debated in Parliament that has changed the implied terms section of the written agreement between residents and park owners. This Order came into force on 1st October 2006 and applies to all written agreements under the Mobile Homes Act 1983, both current and new. Implied terms are the contractual terms which the 1983 Act (as amended) implies automatically into agreements between residents and owners.

The amendments and new implied terms can be annexed to the existing agreement, or a new one can be given to the resident. It is not an opportunity for new express terms to be added. This factsheet takes you through the changes to the existing implied terms, and introduces the new implied terms.

Amendments to the Existing Implied Terms

The existing implied terms form Part 3 of your written agreement. These changes build on the amendments put in place by the Housing Act 2004. Where express terms are inconsistent with the new implied terms the implied terms will override the express ones.

Termination of agreement by owner

Where the owner wishes to end the agreement under the only or main residence clause, (paragraph 5 of Schedule 1) the Order includes a requirement that the court must now also consider it reasonable for the agreement to be terminated.

Paragraph 6 of Schedule 1, which relates to the ending of the agreement on the basis of the condition of the mobile home, has been amended removing the reference to a 5 year relevant period.

Sale of mobile home by the resident

Paragraph 8, which concerns the sale of the mobile home, has been amended so as to remove the owner's right to attach conditions to their approval of the purchaser and so that the only factor they can take into account is the suitability of the incoming resident. This has also been amended to make it clear that only commission is payable on the sale and that they cannot claim any other payment.

Gift of the mobile home

Paragraph 9, which concerns the gift of a mobile home, has been amended by the addition of a provision, which clarifies that the park owner cannot claim any payment, including commission, on the gift of a home.

Re-siting of the mobile home

The provision in paragraph 10 in respect of the re-siting of the home has been strengthened so that, except for essential or emergency works, if the park owner wishes to move the home, they must make an application to the court. The court must be satisfied that the move is reasonable in all cases. In addition:

* The new pitch must be broadly comparable to the original pitch.
* The park owner is liable for any costs incurred during the movement of the home.

Additionally, if the home is to be moved for repairs to the base, the park owner must return the home to its original pitch on completion of the repairs, if the resident requires or the court orders.

Insertion of New Implied Terms

Quiet enjoyment of the mobile home

This new provision entitles the resident to the quiet enjoyment of the home and the pitch. The only exceptions relate to the park owner's right to enter the pitch, and the re-siting of the home.

Owner's right of entry to the pitch

The rights in these new provisions apply to the pitch only, and not to the home itself. The owner can enter the pitch:

* Between 9 am and 6pm to deliver written communications, including post and notices, or to read meters for services which they supply.
* To carry out essential or emergency works, but giving as much notice to the resident as is practical.
* For any other reason, with 14 days written notice of the date, time and reason for their visit, unless agreed otherwise.

The pitch fee review

This new section outlines the procedure for reviewing the pitch fee.

The pitch fee can only be changed with the agreement of the resident, or if the court considers it reasonable for it to be changed and makes an order determining the new amount.

Points to note are:

* The pitch fee can only be reviewed annually.
* A notice must be served on the resident at least 28 days before the review date outlining any proposed increase and the reasons for it, along with any relevant documents.
* The pitch fee is open to negotiation.

In reviewing the pitch fee the owner must have regard to:

* Any sums expended for the benefit of the residents and on which they have been consulted.
* The effect of any new government legislation.
* Any decrease in the amenity of the site.

A presumption has been introduced that the pitch fee will only be changed by a percentage equivalent to any change in the Retail Price Index (RPI) since the last review date.

If the pitch fee increase is not agreed, please see the flowchart on page 4.
Resident's obligations

This provision outlines that the resident must:

* Pay the pitch fee and any sums due under the written agreement.
* Keep the mobile home in a sound state of repair.
* Maintain the outside of the mobile home and all areas of the pitch for which they are responsible.
* On request of the owner, provide evidence of expenditure for which they are seeking reimbursement.

Owner's obligations

This provision outlines that the park owner must:

* On request, provide accurate written details of the pitch. These details must be from fixed points. The park owner can charge up to £30 for this to existing residents.
* On request, at no cost, provide documentary evidence in support of any charge.
* Repair the base for the mobile home if necessary.
* Maintain any services which they supply to the mobile home.
* Maintain and keep clean and tidy parts of the park which are not the responsibility of a resident.
* Consult on any improvements to the park.
* When consulting, give at least 28 days notice in writing, outlining how it will affect the park and how representations can be made. These must be taken into account.

Owner's name and address

This section requires that the park owner must inform the resident or the resident's association of an address in England or Wales at which any notices can be served on them.

If the park owner serves a notice for any reason, it must contain:

* The owners name and an address in England or Wales where papers can be served.

If the notice does not contain that information:

* Then the notice or charge is not deemed payable, or served, until the information is supplied.

Qualifying resident's association

This section states that the park owner must acknowledge the resident's association if the criteria is met. A resident's association is regarded as being qualifying if:

* It represents the residents on the park who own their home.
* At least 50% of residents are members.
* It has a chairman, secretary and treasurer.
* Decisions of the association are taken by vote, with one vote per home.
* It is independent from the park owner, whose agents and employees are excluded from membership, even if they are park residents.

In calculating the percentage of residents, each home is considered as having 1 occupant. If there is more than one occupant then the first name on the written agreement is used.