Decision Nº LRX 47 2015. Upper Tribunal (Lands Chamber), 16-12-2015
| Jurisdiction | UK Non-devolved |
| Judge | His Honour Nicholas Huskinson |
| Date | 16 December 2015 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 47 2015 |
|
UPPER TRIBUNAL (LANDS CHAMBER)
|
|
|
UT Neutral citation number: [2015] UKUT 0686 (LC)
UTLC Case Number: LRX/47/2015
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
MOBILE HOMES –construction of agreements -- costs -- application by occupiers to First-tier Tribunal for determination whether certain sewerage charges were payable pursuant to their agreements -- F-tT finding in favour of site owners -- question arising as to whether the agreements on their proper construction entitled site owners to recover from occupiers the costs incurred in relation to the proceedings before F-tT
IN THE MATTER OF AN APPEAL FROM A DECISION
OF THE FIRST TIER TRIBUNAL (PROPERTY CHAMBER)
(RESIDENTIAL PROPERTY)
BETWEEN:
(1) SILK TREE PROPERTIES LIMITED
(2) SUSSEX MOBILE HOMES LIMITED
(3) WEST SUSSEX MOBILE HOMES LIMITED
Appellants
and
MR & MRS C GRANT & OTHERS Respondents
Re: Mobile Homes at The Willows,
Ford House,
Arundel,
West Sussex
BN18 0BU
Decision on Written Representations
© CROWN COPYRIGHT 2015
The following cases are referred to in this decision:
Canary Riverside Property Limited v Schilling (LRX/65/2005)
Conway v Jam Factory Limited (2013) UKUT 592 (LC)
Iperion Investments v The Broadwalk House Residents Limited (1995) 27 HLR 196
Realreed Limited v Cussens [2013] EWHC 1229 (QB)
Arnold v Britton [2013] EWCA Civ 902
The following additional cases were referred to in the written representations:
Union Pension Trustees Ltd v Slavin [2015] UKUT 103(LC)
Stroud v Weir Associates Ltd [1987] EGLR 190
Telchadder v Wickland (Holdings) Ltd [2014] UKSC 57
DECISION
Introduction
-
This is an appeal from the decision of the First-tier Tribunal Property Chamber (Residential Property) (“the F-tT”) dated 31 March 2015 whereby the F-tT decided that the appellants were entitled to recover from the respondents a reasonable sum in respect of the appellants’ costs of maintaining the sewerage services at the relevant site and maintaining the common areas of the site. There is no appeal against the foregoing aspects of the F-tT’s decision. However the F-tT also decided that, upon the proper construction of the relevant express provisions in the respondents’ agreements, the appellants were not entitled as a matter of contract to recover from the respondents their costs (including legal costs) in respect of the proceedings before the F-tT. It is against that aspect of the F-tT’s decision that this appeal is brought.
-
The respondents are all occupiers of mobile homes situated on the Willows Mobile Home Park, Ford Road, Arundel. The first respondent owns the pitches upon which most of these mobile homes are situated; the second respondent owns one pitch (No.9); and the third respondent owns four pitches (Nos. 39, 41, 42 and 43). The Willows Mobile Home Park is a protected site within the Mobile Homes Act 1983 as amended. Pursuant to section 4 of the Act the F-tT has jurisdiction to determine any question arising under the Act or any agreement to which it applies and has jurisdiction to entertain any proceedings brought under the Act or any such agreement.
-
In October 2014 the respondents applied to the F-tT for a determination of certain matters including in particular the recoverability of certain sewerage charges and also some other maintenance charges at the site. The issues raised in that application were determined by the F-tT in favour of the appellants and, as already stated above, no issue arises in relation to that aspect of the F-tT’s decision in the present appeal.
-
The question regarding the recoverability of costs by the appellants from the respondents arose in relation to the costs of what the F-tT described as “the current application to the Tribunal”, see paragraph 34 of its decision.
-
Some of the respondents hold their respective pitches from the relevant appellant pursuant to an earlier form of agreement which was described by the F-tT as the pre-2006 agreement. The remainder of the respondents hold their respective pitches from the relevant appellant pursuant to a later agreement described by the F-tT as the post-2006 agreement.
-
The present appeal depends upon the proper construction of the charging provisions in these two agreements. It is therefore necessary, separately, to set out the relevant terms relied upon by the appellants as justifying the recovery by them from the respondents of the costs of the application to the F-tT.
-
As regards the pre-2006 agreement there is a specimen such agreement before me dated 21 September 1993. The relevant words relied upon by the appellants are contained within clause 3 of the agreement which states that the relevant respondent (referred to as the Occupier) undertakes with the relevant appellant (referred to as the Owner) to comply with various obligations including, in paragraph (b) the following:
“(b) To pay to the Owner an ‘equal amount’ of the cost’s (costs divided by number of homes on the park) of:-
-
the charges for the supply of water, sewage, electricity, gas and telephone and other services to the mobile home and pitch, inc maintenance and repair.
-
all sums reasonable expended by the owner in respect of keeping the park in good repair and condition and making capital improvements to the Park including management charges and compliance with such legislation as may be applicable to the operation of the park including insurance.
-
any monies not received within 7 days of invoice will be charged interest at 3% per month or part thereof. This applies to all clauses in this agreement.”
It is upon sub-paragraph (b)(ii) that the appellants rely.
-
As regards the post-2006 agreements there is before me a copy of an agreement dated 30 September 2006 (under which Mr and Mrs Grant are the occupiers) which refers to the site owner as “Us/We” and to the occupier as “You”. The words relied upon by the appellants as justifying the recovery of the costs of the proceedings before the F-tT are contained within clause 4 which is introduced by the words “You undertake with Us as follows….” And paragraph (d) of which is in the following terms:
“(d) To pay all reasonable costs charges and expenses (including legal costs and surveyors’ fees) incurred by Us in relation to:
-
Any process or proceedings in respect of termination of this agreement (including our disconnection charge);
-
The assignment of the agreement (including our administration fee);
-
in respect of giving effect to or requiring the performance of any of the provisions of this agreement (including legal proceedings); and
-
Every application made by You for a consent or licence required by the provision of this agreement, whether it is granted, refused or offered subject to any lawful qualification or condition, or the application is withdrawn.
This obligation is subject to your rights under CPR Rule 48.3.”
-
The F-tT decided that in respect of both the pre-2006 agreement and the post-2006 agreement the appellants did not have the right to recover the costs of the proceedings before the F-tT from the respondents. F-tT’s reasons for its conclusions on this point are contained in paragraph 34 of its decision in the following terms:
“34. With regard to whether the site owner is entitled under the express terms of the agreement to recover, as a matter of contract, the costs of the current application to the Tribunal, the Tribunal finds in favour of the Applicants. The pre-2006 agreement has no provision for the recovery of site owner’s costs of proceedings. With regard to the post-2006 agreement the Tribunal finds that the Respondent’s costs of responding to an application under section 4 of the Act for the determination of a question or questions such as those posed by the Applicants in this case do not come within clause 4(d). The Tribunal construes “To pay all reasonable cost charges and expenses (including legal costs and surveyors’ fees) incurred by us in relation to any process or proceedings in respect of termination of the agreement as meaning positive steps taken by the site owner towards terminating the agreement. Here, the site owner has simply been required to respond to a request for clarification of the home owners’ liabilities and to the home owners’ challenge as to the reasonableness of the sewerage charges. The Tribunal does not consider that there is a sufficient nexus between that situation and the site owner taking proceedings to terminate the agreement to bring these proceedings within the ambit of clause 4(d). The County Court proceedings which have apparently been commenced against two home owners for termination of their agreements is another matter. Any costs incurred in those proceedings will be directly in connection with action brought by the site owner to terminate the agreement. If the site owner is unsuccessful in those proceedings there may be arguments that it is unable to recover its costs under the contractual terms but that is not a matter for the Tribunal to decide under this application. In respect of the obligation to pay the site owner’s costs “in respect of...
To continue reading
Request your trial