16/05/2011
With effect from 30 April 2011, new laws came into force which will change the legal relationship between local authorities and occupiers of pitches on permanent and temporary gypsy and traveller sites. As well as changing the underlying legal basis of occupation of gypsy and traveller pitches for the future, a specific statutory duty requires positive action to be taken before 28 May 2011. In this update, we summarise the new changes.
Mobile Homes Act 1983
The Mobile Homes Act has applied to gypsy and traveller pitch agreements granted by county councils since 2005. The new changes mean that certain significant provisions in the 1983 Act now also apply to gypsy and traveller occupiers on borough and district council sites with effect from 30 April 2011 onwards.
From 30 April, all pitch agreements will now automatically include an additional set of implied terms, which are contained in Schedule 1 of the Act. The main changes are increased protection against eviction to occupiers and the fact that pitch fees will only be able to be increased by using a prescribed procedure.
In relation to termination rights, an authority will need a court order to terminate a pitch agreement and retake possession of a pitch. The court will only sanction termination if:
- the occupier has stopped living on the pitch
- the court is satisfied that the occupier is in breach of the agreement and has not put the breach right after being given notice to do so and it is reasonable to order possession, or
- the state of the home is having a detrimental impact on the rest of the site.
Existing occupiers
The new law imposes a statutory duty on authorities to provide all existing pitch occupiers (on both permanent and transit sites) with a “written statement” by 28 May 2011 setting out the terms of the occupier’s pitch agreement. Until written statements are provided, the express terms of the pitch agreement will be unenforceable, which means occupiers cannot be required to pay their pitch fees or comply with their other obligations until statements are provided to them.
Authorities do not comply with this duty simply by having a written pitch agreement already in place. The written statement required at law needs to record both the express written terms of the agreement plus a number of additional implied terms which will apply by virtue of Schedule 1 of the 1983 Act.
There is a prescribed form for the written statement, which is set out in the schedule to the Housing and Regeneration Act 2008 (Commencement Order No. 8 and Transitional, Transitory and Savings Provision) Order 2011 which can be accessed at www.legislation.gov.uk. The Schedule also details which implied terms apply to agreements between borough, district and county councils and travellers.
New occupiers
Pitch agreements for all occupiers moving onto borough, district and county council sites after 30 April 2011 will include the implied terms in Schedule 1 to the Mobile Homes Act 1983 as well as the existing express terms between the occupier and the site owner.
Transit pitches
The new legislation makes specific allowance for transit pitches to reflect their temporary nature. Authorities will have the right to terminate a pitch agreement and obtain possession on not less than 4 weeks’ notice. However, Government guidance states that in the Government’s view it would not be reasonable or proportionate for authorities to recover possession of pitches using this power unless the occupier was not paying his/her pitch fee or committing another breach or the authority urgently required the pitch for someone else.
Transitional provisions
Specific transitional arrangements are put in place. The most noteworthy is that the implied terms in the 1983 Act will not apply to agreements where termination proceedings have been commenced prior to 28 May 2011. In appropriate cases, authorities may need to consider whether such proceedings should be commenced before that date.
Resolution of disputes
Although possession cases will continue to be dealt with by the county courts, the legislation transfers the jurisdiction for resolving most other types of dispute under the 1983 Act to the Residential Property Tribunal.
How can Bevan Brittan help?
Our specialist team has considerable experience in advising local authorities on the full range of legal issues relating to gypsy and traveller sites.
