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Angels Dancing on the Head of Anti-Social Behaviour

By D

Telchadder v Wickland Holdings Ltd [2014] UKSC 57

I will admit to being a bit cool on static caravan parks. I used to live in an area surrounded by them and could never understand why people would want to holiday in them, much less live in them permanently. I get that they appear to represent a budget option but in practice the security of tenure is poor and there is limited protection from service charges. They are in fact a rapidly growing area and now house around 85,000 households, many of which are elderly. However, this appeal is about much more than mobile homes and involves a careful analysis of common law rules on remediability of breaches in regard to anti-social behaviour.

For those of you not steeped in static caravans, they are not normally permanently affixed to the ground and so you cannot normally have a tenancy of one. More usually the caravan is in fact owned by the occupier and they then hold a tenancy of the ground on which it sits. In order to provide some security of tenure to the occupiers of static caravans a series of Mobile Homes Acts were brought into place, starting in the 1960s. These were of mixed success and led ultimately to the Mobile Homes Act 1983, with which this case was concerned.

The 1983 Act created a degree of security by providing for a minimum term for such tenancies, setting out compulsory information to be given to the tenant, and creating compulsory notice provisions before such tenancies could be terminated for breach. Those notice provisions contained more than a passing nod to those found in s146, Law of Property Act 1925, but more of that shortly. One of the implied terms created by the 1983 Act permits the agreement to be terminated if a judicial body considers, on application, that the occupier has not complied with a term of the agreement and, the owner having been served with the notice of the breach, has not remedied the situation within a reasonable time.

Wickland are the owners of a mobile home park. It is not used for holiday purposes and the 200 or so residents occupy on a permanent basis. Most of the occupiers own their own caravans. The homes are close together and so, as the Supreme Court put it, there is “a premium on good-neighbourliness.” T entered into an agreement to place his mobile home on the site for permanent residence from 1 June 2006 and this was subject to the 1983 Act. The above-mentioned implied term was therefore included along with an express term requiring T not to cause nuisance or annoyance to other park residents and a requirement to obey the annexed rules of the park. These rules included a further repetition of the enquire rent no to cause nuisance or annoyance to other residents as well as a requirement not to carry an offensive weapon.

T’s behaviour on the park and the appropriate responses to that were the key issue here. Before I describe this I should say that I make no judgement at all on his behaviour. T was found by the first instance judge to exhibit behaviour on the autistic spectrum, have a learning disability and to be eccentric and have various mental health issues. These facts were not particularly relevant to the situation other than they provide some explanation for his behaviour.
At the end of July 2006, therefore early in his residence, another resident of the park complained that T had leapt out in front of her wearing full camouflage clothing along with face veil and waved at her. This had, unsurprisingly, scared her a fair bit. In mid-August , Wickland wrote to T warning him that his behaviour was not acceptable, that he must not cover his face outside his home and that he must not approach other residents of the park.
Presumably this notice had the desired effect in that nothing much happened until 2009. Further letters had been sent to T in 2007 and 2008 but these apparently relayed to minor complaints and minor breaches and no weight was attached to them.
However in July 2009 T informed another resident that two women had reported him for jumping out at them and said he was going to kill them. In the ensuing exchange T also threatened to kill the other resident.

Wickland reacted predictably to the events of July 2009, writing to T in August 2009 that it intended to seek possession due to his behaviour. Proceedings were then issued in early September 2009. Oddly the hearing of this claim did not in fact begin until August 2011, some two years later. During this time there had been other incidents involving T and residents including incidents in which T had appeared before the Magistrate.

Key Issues
The main issue on appeal was how a breach of a term relating to anti-social behaviour and nuisance should be dealt with. The implied termination term created by the 1983 Act simply states that a notice should be served and if the breach is not remedied then proceedings can be commenced for the Court to make a possession order. It is phrased as follows:

… satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time;

However, it is not clear what should occur of this breach is not in fact capable of remedy at all. How can a notice be served and a reasonable time elapse without remedy occurring if no remedy is possible? Arguably the notice would in fact be entirely without purpose if no remedy is contemplated. The predecessor to the 1983 Act dealt with this by using the alternative wording:

…the right of the owner to determine the agreement for breach of an undertaking, subject to the requirement, in the case of a breach which is capable of being remedied, that he has served written notice of the breach upon the occupier and has given the occupier a reasonable opportunity of remedying it;

This wording seemed to have taken s146 as its model as this also talks of notices to remedy breaches requiring a remedy only “if the breach is capable of remedy”.

The Supreme Court took a coolly practical approach holding that a notice which required remedy of a breach which was not in fact capable of remedy was a nonsense and therefore that it should attach no particular weight to the wording of the precious legislation that had not been carried over into the 1983 Act.

Remediability of Anti-Social Behaviour
As the Supreme Court noted, it is easy to fix a breach of a positive covenant to do some act. The act should simply be done belatedly and any compensation paid. There may be some positive covenants that cannot be so easily remedied, such as a massive breach of a repairing covenant that causes a property to collapse.
Negative covenants are less easy to remedy. The deed is done, the forbidden act already committed. In some cases simply stopping doing that which is forbidden may be enough. However, some breaches, use of a property as a brothel for example, will carry a lasting taint which cannot be undone.
So what of anti-social behaviour. The obvious cure is to cease the behaviour. However, some anti social behaviour may be so serious that merely stopping it may not be enough. There is also the question as to how long it might take before a specific piece of anti-social behaviour might be said to have been remedied.
The Supreme Court found that a value judgement had to be made as between the nature of the behaviour and the length of time without recurrences. It suggested that if T had caused injury during the first incident in 2006 then that would quite probably been a breach incapable of remedy and, based on its previous conclusions, Wickland would not have been required to serve a notice of remedy but could simply have informed T that it was seeking possession and proceeded to Court to do so.
However, the 2006 breach was not that serious and the Supreme Court found that a notice should be served on T, as it was, requiring him to remedy the breach within a reasonable period. The Supreme Court held that in the case of a negative covenant such as this the proper reading of the the Act was that T should be required not to commit a further breach for a reasonable period of time. The Supreme Court differed from the Court of Appeal by holding that the “reasonable period of time” for such a notice was not the rest of T’s occupation. It was not prepared to set a specific “tariff” for a breach and considers the concept of “expiration” of notices and offences unhelpful. To conclude as the Court of Appeal did, that the notice once served lasted forever, was to permit the eviction of persons for behaviour committed many years in the past. The counter-argument of Wickland that the allowance of remedy for poor behaviour potentially allowed a malicious resident to play “cat and mouse” with park owners by behaving badly, being served with a notice, waiting for a reasonable period to elapse so that the breach was remedied, and then doing it again, was dismissed as unrealistic.

The Supreme Court noted that this was the first detailed analysis of anti-social behaviour. The upshot is as follows:
Some anti-social behaviour of a serious character is irremediable;
Less serious anti-social behaviour is remediable;
The remedy for less serious breaches is to cease the behaviour and not repeat it within a reasonable period, the length of which will depend on the behaviour;
Under the Mobile Homes Act 1983, notice of breach is only required for remediable breaches. Irremediable breaches allow notice to be given of proceedings and for those proceedings to be commenced forthwith.
For T, this meant that the considerable period which had elapsed between the 2006 notice and his breach in 2009 meant that he had remedied the breach. The proper course in 2009 was for Wickland to serve another notice specifying a breach and allowing for it to be remedied, absent which they could have proceeded to Court. As they had not done this, t’s appeal would succeed and the possession order granted against him would be set aside.

Minority Views
This appeal was a unanimous decision in the sense that all members of the Court agreed that T’s appeal should be allowed. Lord Wilson (who gave the leading decision that forms the basis of the report above) was agreed with by Lady Hale and Lord Toulson. The minority opinion of Lord Carnwarth (Lord Reed agreeing) was that once a notice was served the obligation not to commit the same breach by way of anti-social behaviour continues indefinitely (to that extent echoing the Court of Appeal) but that there must be a causal or temporal link between the original breach and the breach which gives rise to possession which they did not find in this case.

I am not sure the minority opinion is terribly helpful. The minority felt that Lord Wilson’s interpretation did “unnecessary violence” to the language of the statute. Their solution was to hold that a the obligation continued forever but that there must be an implied nexus in time between the original breach and subsequent breaches such that the breach of covenant giving rise to the notice can be said to be ongoing and therefore not remedied. I am not convinced this is markedly less violent to the statute and does not create a more confused result. In practice, I doubt there is a vast difference between the two positions. To that extent there is a certain amount of angels dancing on the head of a pin, or the roof of a mobile home.

Posted in: Possession
D is a solicitor specialising in landlord and tenant matters with a London firm.

1 Comment

  1. CJ

    On the contrary, the security of tenure provided by the MHA 1983 is excellent and, in some aspects, better (from the point of view of the occupier) than that provided by the Housing Act 1985.
    There have been problems caused by ‘rogue park owners’ ( ‘rogues’ because they tend not to take any notice of legislation) but the 2013 Acts in England and Wales are designed to address those problems.
    This decision is, of course, now important to Gypsies and Travellers on local authority sites who were finally brought within the provisions of the MHA in England in 2011 and in Wales in 2013.


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