The written statement

Mobile home occupiers protected under the Mobile Homes Act 1983 are entitled to a written statement. [1] The statement should include:

• the names and addresses of the parties

• details of the land on which the mobile home is to be stationed, to allow sufficient identification of the land

• any express terms of the agreement (see below)

• the terms to be implied by law (see below). [2]

The written statement is evidence of the agreement between the mobile home occupier and the site owner but it is not the agreement itself. In Scotland, many occupiers have not been given a written statement. They are nonetheless fully protected by their verbal agreement and by the terms implied by the law.

The site owner must supply the written statement at least 28 days before the agreement under the Mobile Home Act 1983 is entered into, [3] unless the proposed occupier consents in writing to a statement being provided at a later date. The written consent should give the later date. [4]

If the site owner does not provide the written statement within the required time (ie 28 days) and the proposed occupier does not consent to it being provided later, then any express terms contained in an agreement given at a later date will be unenforceable. [5]

An occupier not given a written statement may apply to the court for an order requiring one to be given. [6]

The mobile home occupier and the site owner are free to put any express terms into the agreement, so long as they do not conflict with the implied terms. The parties may agree special terms which are not related to provisions contained in the Mobile Homes Act 1983, but may also agree a number of terms set out in Part II of Schedule 1 to the Act. These terms cover:

• the right of the occupier to quiet enjoyment, ie undisturbed possession

• the sums payable by the occupier (for use of the pitch and services) and the times of payment

• the review at yearly intervals of the sums payable

• the provision or improvement and use of the site's services by the occupier

• the preservation of the amenity of the site

• the maintenance and repair of the site by the site owner and the maintenance and repair of the mobile home by the occupier

• access by the site owner to the pitch on which the occupier is entitled to station her/his mobile home

• the right for the site owner to relocate the mobile home to a new pitch (see Re-siting the mobile home, below).

• In agreeing terms, it is important that the parties are clear on the agreements, as terms that may seem neutral at the commencement of the agreement may create problems later.

Once a written statement has been issued, the occupier or the site owner can apply to the sheriff court within the relevant period (see below) to have any express terms of the agreement altered or deleted. [7] Alternatively, an application can be made to an arbiter, but only where both sides have agreed to this in writing. This right only applies to new agreements, not to those that have been passed on to the occupier by way of succession or assignation (ie through the sale or gifting of the mobile home).

The court may, on application of either party within the relevant period, make an order to vary or delete any express terms in the agreement and give effect to an unenforceable term subject to any variations it sees fit.

The term 'relevant period' means the period beginning with the date in which the agreement is made and ending six months after that date, or, if there has been a written agreement for late provision of the agreement, six months after that date.[8]

The implied terms regulate the following aspects of an agreement and are contained in section 2(1) and Part I of Schedule 1 of the Mobile Homes Act 1983:

Duration of agreement

An agreement under the Mobile Homes Act 1983 will continue indefinitely unless:

• the agreement is terminated by the occupier

• the agreement is terminated by the site owner with approval from the court or the arbiter (if both parties have agreed in writing to use an arbiter)

• the site owner's interest in the land is insufficient to enable her/him to grant the right to occupy for an indefinite period

• planning permission is time limited.

Some site owners try to create a limited interest by leasing their land to a third party for a set period. The third party may be a limited company set up by the same site owner. Such methods may deprive occupiers of long term security under the Mobile Homes Act 1983, though there is no legal authority on this and the courts may hold that such agreements are invalid. Likewise, there is no legal authority on what happens if the site is leased to a third party once agreements with occupiers have been entered into, or if an initially permanent planning permission is altered so that it becomes time limited or no longer allows the stationing of caravans. In those cases, it can be argued that occupiers should continue to enjoy their full rights under the Mobile Homes Act 1983.

Termination by mobile home occupier

The mobile home occupier must give at least four weeks' notice in writing; this applies even in a fixed term agreement.

Termination by site owner

A site owner is only able to enforce any rights to terminate a mobile home occupier's agreement by obtaining an order from the sheriff court or from an arbiter (where both sides have agreed to arbitration in writing). An agreement can be terminated by the site owner for several reasons:

• The occupier has breached a term of the agreement and, after service of a notice to remedy the breach, the occupier has not remedied it within reasonable time. The sheriff or arbiter must consider it reasonable for the agreement to be terminated. [9] Common breaches may include failure to pay pitch fees or to keep the mobile home in a decent state of repair.

• The occupier is not occupying the mobile home as her/his only or main residence. [10]

• The condition of the mobile home is such that it is having a detrimental effect on the site or is likely to do so in the next five years. The site owner can first apply for an order five years after the agreement is made and then after each further five year period. This ground is comparative and if other mobile homes on the site are in a poor condition it may be difficult for the site owner to show that the mobile home is having a detrimental effect. When an application to terminate an agreement is made on this ground, the court can adjourn proceedings to allow repairs to be carried out, provided it is feasible to carry out the repairs and the occupier agrees to do so. [11]

The site owner does not have to notify the occupier prior to applying for a court order to have the agreement terminated. Once the sheriff or arbiter has agreed to the termination of an agreement, the site owner must apply to the sheriff court for a separate eviction order under the Caravan Sites Act 1968, which can be suspended for up to 12 months.

Recovery of overpayments by occupier

Where an agreement is terminated, the mobile home occupier is entitled to recover any payments made to the site owner in respect of a period of time after the date of termination. [12]

Right to sell on the site

The mobile home occupier is entitled to sell her/his mobile home on the site (and assign the agreement) to a person approved by the site owner. [13] The occupier can serve a written request for approval to the site owner, who must reply within 28 days. Approval must not be withheld unreasonably. The site owner can approve a new owner subject to conditions, but these conditions must be able to be satisfied without having to change or remove any of the express terms in the agreement. An occupier dissatisfied with the decision can apply to the court.

The site owner is entitled to a commission, up to a maximum of 10 per cent. [14] No VAT is payable on this figure. Site owners can be obstructive about this right and the ensuing dispute may frighten off potential buyers. An aggrieved occupier can apply to the sheriff court or to an arbiter for a declaration that permission has been withheld unreasonably. An application to an arbiter is only possible if both sides have agreed to this in writing. Alternatively, the occupier can take the risk of selling the mobile home and later arguing that the agreement had been lawfully assigned. The potential buyer may not go ahead with either option. Some degree of compromise and negotiation may therefore be necessary. In England, the courts have held that an occupier cannot claim compensation for money lost where permission had been unlawfully withheld. [15] There is no relevant Scottish case law.

Gift of mobile home

The mobile home occupier is entitled to gift the mobile home and to assign the agreement to a member of her/his family. [16] An occupier can serve a written request for approval to the site owner, who must reply within 28 days. The site owner's approval must not be withheld unreasonably. The site owner can approve a new owner subject to conditions, but these conditions must be able to be satisfied without having to change or remove any of the express terms in the agreement. An occupier dissatisfied with the decision can apply to the court. No money is payable to the site owner. A 'member of the family' includes a spouse, civil partner, parent, child, grandchild, brother, sister, uncle, aunt, nephew, niece, persons living as spouses, relatives by marriage or half-blood and stepchildren, adopted children and illegitimate children. [17] Under the Human Rights Act 1998, it can be argued that same-sex partners who are not civil partners are also included in the definition.

Re-siting the mobile home

If all the following conditions are met, the site owner may be able to move the mobile home to another pitch on the site:

• There is a written statement containing an express term permitting this.

• The alternative pitch is broadly comparable to the original one.

• The site owner meets all costs and expenses incurred.