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Dwelling on the problems 26 February 2015

Would you recognise a “building” if you saw one ?  This turns out to be a surprisingly important question for residential tenants.

In passing, we have a definition of building in the Energy Performance of Buildings regulations: “a roofed construction having walls”.  But that is not relevant in the case of the Landlord and Tenant Act 1985 (the 1985 Act).  Perhaps surprisingly, it turns out that the Act does not contain a definition of “building”.  This matters a lot, given that in order to have the protections conferred by that Act, a person has to be the “tenant of a dwelling”, and “dwelling” is defined (in section 38) to mean “a building or part of a building occupied or intended to be occupied as a separate dwelling …”.

We all agree that a caravan is not a building.  It is a chattel (a large one, but nevertheless a chattel).  So is a garden shed.  At the other end of the scale, a house constructed in conventional manner using bricks, with foundations dug into the soil, will definitely be a building.  Somewhere along the continuum between those two, an item changes from a chattel to a building.  To enjoy the protections conferred by the 1985 Act, one needs to be on the correct side of the dividing line.

The “lodge” (to use a neutral word) that was the subject of the recent case of Caddick v Whitsand Bay Holiday Park Ltd [2015] UKUT 63 (LC) turned out to lie on the wrong side of the dividing line.  This was a “Park home” manufactured by Omar Park Homes Ltd in 2004.  It was made up of two separate timber-framed sections, each brought onto the holiday park and joined together.  It rested on timber blocks, and was chained onto a concrete base to stop it from blowing away.  Originally it had had wheels but these had been removed.  A wooden screen concealed the gap between the floor and the ground.  Mains services were connected and a wooden decking had been built around the perimeter.

Experts agreed that it would be possible to move the “lodge” without any material damage, and relocate it to a different site.  From the judge’s description, it appeared to be the sort of object that is frequently seen (in two separated halves) on the back of a lorry on a motorway.  It is large, but it does not need an escort so long as it remains on main roads.

Mr and Mrs Caddick owned a lodge on a plot on the Whitsand Bay Holiday Park near Plymouth under a 125 year lease.  They, with other leaseholders, applied to the Leasehold Valuation Tribunal for the determination of service charges payable under section 27A of the 1985 Act.  This would only be available to people who were “tenants of dwellings”.  In this decision, an appeal to the Upper Tribunal, the judge had to decide whether the lodge was a building, and hence a dwelling, within the meaning of section 38.  He decided it was not a building.  (Technically the decision is obiter for reasons that do not need to concern us, but it is still of considerable value.)  He referred to the House of Lords case of Elitestone Ltd v Morris [1997] 1 WLR 687, in which a bungalow was held to be part of the land on which it stood, principally because it could not be removed without being demolished.  This “lodge”, on the other hand, could easily be removed without being demolished.  Evidence was given to this effect from an expert whose company specialised in selling and siting new mobile homes and in relocating them.

So this was not a building, and therefore was not a dwelling, and therefore the protections for residential tenants in sections 18-30 of the 1985 Act did not apply. This is a major disadvantage for occupiers of such properties.

Two other thoughts occur to me but I have had no time to address them in detail yet.  First, perhaps the Mobile Homes legislation might provide some protection to occupiers of such constructions.  I have never looked at that legislation but I suspect that whatever protection it contains will not be as comprehensive as the protection given to tenants under the 1985 Act.  Secondly, could it be that this issue has been entirely overlooked in other cases?  In particular, could it have been overlooked in Phillips v Francis [2014] EWCA Civ 1395, which concerned the manner in which the service charge provisions in the Landlord and Tenant Act 1985 operate (see my article “Service charge consultation requirements with residential tenants: as you were” on 3 November 2014).  The properties in that case were wooden lodges that may well have been similar to the one in this case.  If so, the reasoning in this case could be the thin end of an extremely large wedge.

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