Residential Mobile Homes Stakeholder Working Group
Thistle House, Edinburgh - 27 September 2011
Minutes of Meeting
Gordon Paterson - Scottish Government (Chair)
Aileen Tinkler - Scottish Government
David Brewster - West Lothian Council
Sandy Innes - Moray Council
Beverley Green - Fife Council
Jim Haluch - Willow Wood Community Company
Jeanette Wilson - British Holiday and Home Parks Association
Colin Fraser - British Holiday and Home Parks Association
David Tweddle - Independent Park Home Advisory Service
Barry Plews - Park Home Legislation Action Group Scotland
Mike Larkman - Park Home Legislation Action Group Scotland
Ross Buchanan - Midlothian Council
Brian Doick - National Association of Park Home Residents
Ron Joyce - Park Home Residents Action Alliance
Alicia Dunn - National Park Home Council
1. Welcome, Introductions and Apologies
1.1 GP welcomed everyone to the meeting and introductions were made as there were two new members and a number of apologies.
2. Scottish Government update on progress
2.1 GP updated on progress, both in relation to the proposed SSI and the consideration that was being given to the site licensing regime.
2.2 The Mobile Homes Act 1983 also applies to Gypsies/Travellers living on local authority and privately owned sites. As such, in order to progress the SSI to update the Implied Terms in written agreements full consideration to the potential impact of the proposed changes on the gypsy/traveller side of the sector is required. Written consultation on the matter closes on 30 September and over the last month officials have been engaging with members of the G/T and Showpeople community.
2.3 The group were advised that there is potential for a Housing Bill this Parliamentary session. As improvements to the site licensing regime is an area being considered for inclusion there was much discussion on a number of elements related to the licensing of mobile home sites.
2.4 Planning permission - this is a complex area which some residents' representatives consider a key issue in relation to the re-classification of a park home, in order to distinguish the home from that of a caravan. It is likely that to progress reclassification would be too complex and far reaching for the scope of a Housing Bill, however the group agreed that consistency in relation to planning permission should be considered as part of the site licensing regime.
2.5 DT reflected that the English Tribunal system appeared to be an improvement as an avenue for dispute resolution, especially in relation to costs. Results to date have been positive although Park Owners are still using Barristers to question the jurisdiction of matters for consideration. BG highlighted the value of mediation and considered that, in Scotland, mediation services should be used more widely in relation to park home contractual disputes.
2.6 It is recognised however that in some cases criminality is the real issue. The Mobile Homes Act 1983 in particular is not the best tool to deal with "criminal" park owners. The group were referred to a useful best practice guide developed by West Mercia police who highlights the difficulties and recommendations.
2.7 The Scottish Government will invite representation from the police division to the group, to ensure full consideration is given to the difficulties in relation to criminality while developing policy and future legislation.
2.8 BP agreed to compile a list of the type of issues park home residents had raised with PHLAGS.
2.9 The group were advised that Consumer Focus is progressing research into the effectiveness of the site licensing regime. As some Scottish Local Authorities have been asked to feed in to this piece of work the evaluation will be useful in considering the implications of any prospective change in Scotland.
3. Mobile Homes Act 1983 - Updating the Implied Terms
3.1 The analysis of the consultation responses reflected many areas where there was considerable or complete agreement. However, as anticipated there was noticeable division between industry and resident group respondents in relation to the sale of a park home. The group discussed each of the implied terms, as the attached presentation was delivered, with a view to finalising the way forward. Areas where there was debate are reflected in this minute.
· Implied Term 3, Termination by Occupier
There was some discussion around the issue of what happens if a site owner no longer wants to run the site as a site and decides to sell the land. As the provision is drafted to ensure security of tenure this scenario is not reflected. However, as there appears to be a site that currently falls in to this category the issue will be given further thought.
· Implied Term 4, 5 and 6 Termination by Owner
The group discussed the value of including a list of illustrative exemptions for consideration against the only or main residence criteria, under implied term 5. Although any list would not be exhaustive and discretion would remain with the court it was thought that to include example exemptions might act as a deterrent for misuse by unscrupulous site owners.
· Implied Term 7, Recovery of Overpayments by Occupier
It was agreed the wording should be strengthened to reflect that a site owner is under a duty to repay in these circumstances. It was highlighted that even with the inclusion of this terminology court action would still be required to enforce, if the site owner chose not to repay the overpayments.
· Implied Term 8, Sale of Mobile Home
This implied term represents the main areas of contention between residents and businesses (site owners) reflected in the consultation analysis and again throughout the discussion on this matter during the meeting. Sub-paragraph (1C) has been substituted in the draft SSI for "The owner may not give approval subject to conditions".
In relation to the park owner approval of purchasers, the presentation outlined some of the options that had been considered and the current position.
Scottish Government asked the group to consider accepting an implied term which would ensure that a site owner could not block an estate agent and/or surveyor access to the site to value and market a property. This would allow residents to market their own homes; access independent valuation should they choose; and ensure that park home purchasers are provided with accurate information. It was suggested by the group that inclusion of this provision could go further and place a mandatory obligation on all owners to instruct a formal valuation on the property for sale. This was identified as having advantages by both the residents and the industry representatives. Officials agreed to investigate the implications of such an option.
With regard to site owner approval on sale, resident's representatives continued to press for complete removal. Officials have been made aware of possible human rights issues in the removal of the land owner's right to consent, as it could be deemed an interference with his property. This is being fully investigated.
To address the difficulty that the obligation to pay commission in particular is not highlighted at the time of purchase it was agreed that additional provision should be included to make it a requirement that the resident give the prospective assignee a copy of the written statement 28 days in advance of the sale which would reflect the position as it is for a new sale.
In relation to up to 10% commission on re-sale, the option presented was to retain the payment of commission on re-sale on the basis that full consideration is being given to the viability of business while addressing the issues related to sale blocking and lack of purchaser awareness. Residents' representatives expressed dissatisfaction at this proposal although agreed that the concession would be made if they were content with the overall package of revised provision drafted in relation to the whole of implied term 8.
The Scottish Government will reconsider options on this matter in line with the policy development of the whole of implied term 8.
· Implied Term 10, Re-siting of a mobile home
There was discussion around whether in s10(4) emergency works means should be amended to read include, in order not to be too prescriptive. It was decided however that the provision should be prescriptive in order not to create loopholes and "means" should be retained. In addition, the group wished consideration to be given to additional provision which would ensure a duty of reasonable care to the assets of the occupier by the site owner if the home had to be re-sited.
· Implied Terms 16 to 20, The pitch fee
It was agreed by the group that this provision should reflect facilities and services in addition to amenity. One of the main areas where there is overarching consensus is around the importance of the criteria in relation to pitch fees being set out. It was agreed to investigate this further with the aim of reflecting that water and sewage are included in the pitch fee unless specifically excluded.
In general terms there was acceptance that the provision reflects one household one vote.
· Implied Terms 22 to 25, Owner's obligations
In relation to the provision relating to 22(a) there was agreement that this should be removed in relation to the £30 charge. The Scottish Government will aim to reflect the extended details in the provision.
The group discussed instances where either the site owner himself lives on site or an employee manager lives on site. There is some evidence to suggest that in these circumstances the site owner or manager do not always comply with the park rules. There was a preference expressed by residents' representatives that an implied term should be introduced reflecting a requirement that the site owner, the owner's family and any employees living on the site must comply with the park rules. As the Act makes provision for agreements between site owner and resident, and is not designed to apply to site owners living on their own land it may not be possible to draft such a provision. However, the Scottish Government agreed to investigate further.
· Implied Term 28, Qualifying residents' association
There was concern expressed that the provision as drafted did not prevent the site owner from not recognising a qualifying residents association. This will also be investigated further.
4. Next steps - timeline
4.1 It was recognised that there were still a number of issues to be resolved before the drafting of the final SSI could be progressed. It was agreed that work would continue largely based on the presentation but also giving full consideration to the discussion and concerns raised at the meeting.
4.2 Actions to be taken ahead of the next meeting:
- SG to prepare a summary paper of the key areas for consideration in updating site licensing as per previous made
- SG to prepare document that presents the 'full package' of proposed changes
- SG to invite police representation to the next meeting
5. Date of Next Meeting
5.1 Dependant on discussions to progress, the aim is to reconvene the group wc 28 November.