My holiday occupier has broken their licence agreement.......what can I do?
Whilst most holiday occupiers are well behaved, problems can arise if an occupier breaks the terms of their licence agreement, which can cause loss of enjoyment for other holiday occupiers or adversely affect the smooth running of the Park. What should the park owner do in such a situation?
Has the occupier committed a breach of the agreement?
The starting point is always to look at the terms of the licence agreement with the occupier – which should have been provided to the occupier when they bought their caravan holiday home. The first question for the park owner is whether the alleged conduct is in breach of the agreement.
The industry model standard licence agreement contains a series of behaviour standards. If the occupier has broken any of those terms, then they are likely to be in breach of the agreement. To determine whether a breach has occurred, the park owner should look carefully at the terms of the agreement and then apply the relevant term(s) to the facts of the situation. If there is no written licence agreement, then the park owner’s potential remedies are likely to be very limited. If the breach relied on is a breach of the site rules (rather than of the agreement itself), then it is important to be able to show that the rules were drawn to the occupier’s attention before the breach took place – this can be done if a copy of the rules was attached to the licence agreement or is displayed prominently on the park notice board.
How do I prove the breach?
The burden of proof will be on the park owner to establish a breach has taken place. Some breaches are easier to prove than others e.g., missed payments. However, other breaches may be more difficult to establish e.g., accusations of verbal abuse to other residents of the park. The park owner should therefore try to obtain appropriate evidence to prove the breach as soon as possible after the event, for example by speaking to everyone involved in the incident and should always keep a written record of these discussions. Written statements from other witnesses (even if only as an email) should also be obtained where possible.
It is also important for the park owner to speak with the occupier concerned and to allow them to explain their version of events before any action is taken, to avoid any suggestion that the park has behaved unreasonably. This is especially important if the occupier who is accused of breaching the agreement is vulnerable or has any form of disability or other “protected characteristic” under the Equality Act which may be relevant to the breach,
It is vital to ensure that the park has adequate evidence to prove the purported breach before taking action, as this will be crucial if the matter is disputed and has to go to court.
Adopt a consistent approach
The licence agreement will set out the procedure that the park should follow whenever an occupier breaches the terms of the agreement. However, not all breaches are serious enough to consider terminating the licence agreement. It is important that the park adopts a consistent approach in dealing with breaches, so that an occupier cannot claim that they are being unfairly singled out. It is a good idea for the park to have an internal policy which clearly explains the procedure that the park will take to deal with certain types of breach. Such a policy will ensure that any breaches are dealt with effectively and consistently and should consider issues such as: –
I can prove the breach, what next?
Assuming that you have sufficient evidence to prove that a breach has occurred, then the first point to consider is whether or not the breach is capable of being remedied. The vast majority of breaches (such as non-payment of pitch fees) are capable of being remedied, in which case the first step is to write to the occupier at the earliest opportunity, to explain the breach and ask them to remedy it, setting out what action is needed to remedy it. The occupier must be given a reasonable length of time to put the breach right. How long is reasonable will depend on the nature of the breach, but in most cases will not be less than 28 days. The notice should warn the occupier that if they fail to remedy the breach within this timescale, the park owner may then terminate the licence agreement.
If the occupier then fails to remedy the breach within the specified timescale after the notice has been served, the park owner may then write to them a second time, formally terminating the licence agreement with immediate effect.
The letters should be sent to the occupier(s) named on the licence agreement at the address given as their permanent residential home (i.e., not at the holiday caravan), and copies should be retained by the park in case court action is necessary later.
There may however be situations where an occupier commits a breach which is so serious that it justifies the immediate termination of the licence agreement. Examples could include the occupier committing a serious criminal offence or defrauding the park. In such a case, the park should write to the occupier giving them notice that as a result of the breach the licence agreement is being terminated immediately.
Where a final notice is served on the occupier, this should also give them at least 28 days to arrange for their caravan to be removed from the park; if the occupier fails to do so, then the park may need to apply to the court to seek a possession order. If the occupier is breaching their agreement by using the holiday caravan as their main residence, then a court order will always be needed to evict them lawfully.
The area of terminating holiday caravan licence agreements can be complex, and potentially expensive (both financially and in reputational terms) for a park owner who gets it wrong. Because of this, we would always recommend that park owners seek specialist legal advice whenever they are considering terminating an occupier’s licence agreement.