Is divorce reform around the corner? We take a look at this question in our latest blog and in the light of the recent Owens vs Owens case where the husband was represented by Hughes Paddison.
Taking no notice
It is not often that someone can say that they got lucky in the highest court in the land. But Mr Telchadder who was the subject of the recent Supreme Court ruling in Telchadder v Wickland Holdings Limited had a very lucky escape.
The Telchadder case concerned a mobile home site in Clacton, Essex owned by Wickland Holdings Limited. Mr Telchadder was the owner and occupier of a park home on the site.
The park had issued a standard set of rules including a rule preventing residents from doing anything which might cause a nuisance or distress to other users of the park.
In July 2006, a female resident living on the park complained to Wickland that Mr Telchadder had frightened her by jumping out at her from behind a tree on the park dressed in camouflage clothing and waving at her. Wickland therefore served a notice on Mr Telchadder stating that they regarded his behaviour as unacceptable and that if such behaviour continued, Wickland would apply to the Court to terminate his agreement and seek his removal from the park.
Having received the notice, Mr Telchadder did not commit any further serious breaches of the agreement and maintained a clean record for 3 years.
But in July 2009, Mr Telchadder threatened to kill two female residents of the park. When he was told to calm down by another resident, he then threatened to bump off that individual too.
Wickland therefore wrote to Mr Telchadder to inform him that because he had been “harassing, terrorising and threatening other residents”, it was going to apply to court to terminate his agreement and remove him from the site.
And this was where Wickland slipped up. The letter did not give Mr Telchadder an opportunity to remedy the breach; it simply told him that an application was being made to the court and that Wickland were relying upon the notice served 3 years previously when Mr Telchadder had been warned about his behaviour. Wickland’s view was that Mr Telchadder had been warned once in 2006 and that there was no need to warn him again.
The question was: had Mr Telchadder complied with the 2006 notice by behaving himself for 3 years? Mr Telchadder’s view was that he had behaved impeccably for 3 years and this latest incident needed to be treated as a new breach requiring a fresh notice.
Wickland commenced legal action in Colchester County Court to remove Mr Telchadder from the site.
The County Court judge found in favour of Wickland and granted the possession order. Mr Telchadder, feeling aggrieved, appealed to the Court of Appeal. The Court of Appeal dismissed the appeal.
Fired up and in need of a scrap, Mr Telchadder appealed to the Supreme Court. Mr Telchadder emerged a very lucky man with the Supreme Court finding in his favour.
The provisions of the Mobile Homes Act 1983 provide that a park owner shall be entitled to terminate an occupier’s agreement if the occupier does not comply with a notice of breach within a reasonable time.
What is a “reasonable time”? Mr Telchadder had behaved himself for 3 years before letting things slip once again. Could it not be said that he had complied with the 2006 notice by staying out of trouble for 3 years?
The Supreme Court reluctantly accepted that the 2006 notice had lapsed by the time of the death threat incidents in 2009. Because Wickland had not served a fresh notice in 2009, they were not entitled to a possession order. Mr Telchadder’s appeal was therefore allowed.
A lucky escape for Mr Telchadder, a large costs bill for Wickland, and a conspicuous absence of ‘Welcome Home’ banners and balloons for Mr Telchadder upon his return to the site.
The judgment contains useful guidance for park owners and for landlords generally. It emphasises the importance of proceeding with care when relying upon a notice of breach served many months or even years before the application to court. Consider whether the breach that is the subject of your application to court does in fact fall within the scope of the notice that was served on the occupier. If the occupier has remedied the breach that was the subject of your initial notice, you may need to serve a fresh notice before knocking on the court’s door.
For any advice in relation to the termination of occupancy agreements or tenancies, please contact Andrew Turner on 01242 574244 or by email at firstname.lastname@example.org.