It only seems like yesterday I was revising for my Land Law examination (it's actually 32 years ago!) and trying to get to grips with some difficult concepts and terminology. I wrestled with the difficulties in trying to differentiate between Freehold, Fee Simple, Fee Farm Grant, Leasehold, Periodical Tenancies, Tenancies at Will, Licence and Possessory Title. These terms have been enshrined in our Land Law & Conveyancing for hundreds of years but there may be a new term inadvertently emerging.
I was recently asked to comment on some new legislation that has been introduced by way of a Private Members Bill that relates to caravans. My first concern in connection with this legislation is in respect of the manner in which some new property legislation is being created. I am very in favour of the transfer of power to Stormont and for local legislation to be enacted which should be more in tune and relevant to Northern Ireland, than legislation being forced upon us from London. Approximately eighteen months ago I was asked to comment on a Private Members Bill that related to Multiple Unit Developments. From my initial investigation of the Bill, I could quickly see that it appeared to have been drafted by English Draughtsmen as there was reference to Land Law concepts that don't apply in Northern Ireland. It was quickly agreed that the proposed Bill would not be enacted. However as a result of this development the Law Society of Northern Ireland investigated this difficult area and produced a proposal paper on Multi Unit Developments. With the new Caravan (Northern Ireland) Act again the legislation has also evolved from a Private Members Bill and also there appears to be a similarity to legislation that was introduced in England & Wales. The Bill is very similar to the English legislation with the one main exception which is Part 2 which relates to agreements for occupiers on seasonal sites.
The rational behind the Caravan Act (NI) 2011 is commendable. This is an area that has caused a lot of difficulties over a long period of time and it is an area where these difficulties need to be addressed and resolved. I totally approve of legislation that tries to regulate an area open to abuse and the concept of having written residential agreements being prepared at the inception of the relationship between a caravan site owner and the caravan occupier is commendable. I also find it interesting that the Trading Standards service have become so closely involved with the introduction to this legislation and in a very constructive manner have written to a number of the holiday caravan park owners to provide seminars to alert the park owners of the legislation. Trading Standards went even further than this in that they give clear indications as to how they interpreted the legislation. Interestingly they made reference to other legislation in interpreting the legislation and in particular the unfair Terms in the Consumer Contract Regulations of 1999. This in itself is an interesting act that enshrines the concept of the test of fairness in respect of terms of Contract. The documentation issued by Trading Standards is clear and precise and gives constructive advice as to what trading standards would hope to see in the residential caravan agreements.
Despite my favourable sentiments towards the rationale of the legislation and the involvement of Trading Standards when you actually examine Part 2 of the legislation, which only contains Sections 7 & 8, there is very little substance to the legislation in respect of seasonal sites and seasonal agreements. The English legislation primarily dealt with the difficulties regarding residential caravan parks where the owners resided in their caravans on a permanent basis. In respect of the seasonal caravaner, all the legislation appears to grant is it there to receive a seasonal agreement from the site owner. It doesn't stipulate exactly what express terms should be contained in this agreement apart from the name and address of the parties and the particulars of the actual site.
Therefore inadvertently this Act may have created a new form of title which I have suggested could be called "Caravan Hold".
So what is a caravan hold? Certainly the legislation doesn't define this concept but if the Trading Standards' recommendations in connection with the expressed terms required to be given to the caravan holder under their residential or seasonal agreements, requires the site owner to specify a duration of the agreement, then is this creating a tenure in favour of the caravan owner which would allow them to defend proceedings being taken by the caravan site owner to have their caravan removed from the site? Previously caravan owners were at the mercy of the site owner who could threaten to remove them from the site at any time if there was no agreement or after a year if there was an annual agreement and they did not offer a future annual agreement. I do believe that there was consultation prior to this Act being introduced but I am unsure as to whether or not due thought was given to the various rights of the caravan owner and the caravan site owner in respect of this tenure issue. As the legislation itself appears to be silent in respect of this matter, it looks as if any future disputes in relation to this matter may have to be dealt with by the Trading Standards Services interpretation of the agreement and the fairness of the agreement in light of the unfair terms in Consumer Contract Regulations 1999.
As a caravan holder myself who has not yet received his first seasonal agreement, I await with anticipation as to what will unfold over the next number of years. I suspect Trading Standards may be a lot more busier in this area that they will have anticipated and I hope that they have put aside sufficient resources to deal with the number of disputes I think will arise in connection with this area over the next number of years. In the meantime after a considerable gap a new form of tenure may have evolved caravan hold!