Mobile Homes Citation, commencement, application and interpretation 1 1 This Order may be cited as the Mobile Homes Act 1983 (Amendment of Schedule 1) (Scotland) Order 2013 and comes into force on 1st September 2013. 2 The amendments made by this Order to Schedule 1 to the 1983 Act apply in relation to any agreement to which that Act applies and which relates to the stationing of a mobile home in Scotland. 3 Subject to article 4, those amendments apply in relation to any such agreement made at any time before 1st September 2013 as well as in relation to such agreements made on or after that date. 4 In this Order “the 1983 Act” means the Mobile Homes Act 1983. Amendment of Part 1 of Schedule 1 to the 1983 Act 2 1 Part 1 of Schedule 1 to the 1983 Act (terms implied by Act) is amended as follows. 2 In paragraph 4 (termination by the owner because term of agreement has been breached), for “forthwith” substitute “at a date to be determined by the court”. 3 In paragraph 5 (termination by the owner because mobile home is not being occupied as only or main residence)— a for “forthwith” substitute “at a date to be determined by the court”; and b from the existing “the court” to the end, substitute— the court— i is satisfied that the occupier is not occupying the mobile home as the occupier’s only or main residence; and ii considers it reasonable for the agreement to be terminated. . 4 In paragraph 6 (termination by the owner because of mobile home’s detrimental effect on amenity of the site due to its condition)— a in sub-paragraph (1)— i for “the end of a relevant period” substitute “a date to be determined by the court”; ii at the end of Paragraph (a) for “; or” substitute “; and”; and iii for Paragraph (b) substitute— b the court considers it reasonable for the agreement to be terminated. ; b omit sub-paragraph (2); and c in sub-paragraph (3)— i in Paragraph (a)(i) omit “or (b)”; and ii in Paragraph (a)(ii) for “neither of those paragraphs” substitute “sub-paragraph (1)(a) not”. 5 For paragraph 7 (recovery of overpayments by occupier) substitute— Repayment of sums paid by occupier on termination of agreement 7 Where the agreement is terminated as mentioned in paragraph 3, 4, 5 or 6, the owner must, within 2 months of the date of the termination, repay to the occupier so much of any payment made by the occupier in pursuance of the agreement as is attributable to a period beginning after the date of termination. . 6 in paragraph 8 (sale of mobile home)— a before sub-paragraph (1) insert— A1 This paragraph applies to an agreement which relates to a pitch other than a pitch on— a a local authority gypsy and traveller site; or b a registered social landlord gypsy and traveller site. ; b in sub-paragraph (1)— i after “occupier shall” insert “, subject to sub-paragraph (2A),”; and ii omit from “, to a person” to the end; c for sub-paragraphs (1A) to (1I) substitute— 1A The occupier is entitled to— a market the occupier’s mobile home using the services of an agent; and b display appropriate marking signs in, or on, the mobile home for these purposes. 1B The owner must allow any agent appointed by the occupier such reasonable access to the pitch as may be required for the purposes of— a preparing a valuation of the mobile home and b preparing or displaying marketing particulars. 1C Where the occupier intends to sell the mobile home and assign the agreement as mentioned in sub-paragraph (1), the occupier must, no later than 28 days before the date of the sale of the mobile home and assignation of the agreement, provide the purchaser with— a a copy of the agreement; b a copy of any site rules for the protected site on which the mobile home is stationed; and c a forwarding address for the occupier. 1D But if the purchaser consents in writing to the documents and address being provided by a date (“the agreed date”) which is less than 28 days before the date of the sale and assignation of the agreement, the occupier must provide the documents and address to the purchaser no later than the agreed date. ; and d after sub-paragraph (2) at the end insert— 2A Neither the sale nor the assignation are to have any effect until the owner has received the commission mentioned in sub-paragraph (2). 2B Except to the extent mentioned in sub-paragraph (2), the owner may not require any payment to be made (whether to the owner or otherwise) in connection with the sale of the mobile home, and the assignation of the agreement. . 7 For paragraphs 9 (gift of mobile home to person approved by owner) and 10 (re-siting of mobile home) substitute— Gift of mobile home 9 1 This paragraph applies to an agreement which relates to a pitch other than a pitch on— a a local authority gypsy and traveller site; or b a registered social landlord gypsy and traveller site. 2 Subject to sub-paragraph (5), the occupier is entitled to gift the mobile home, and to assign the agreement, to a member of the occupier’s family (the “new occupier”) without the approval of the owner. 3 The occupier must, if requested by the owner, give the owner such evidence as the owner, acting reasonably, may require to confirm that the new occupier is a member of the occupier’s family. 4 The new occupier must, as soon as practicable, notify the owner of the new occupier’s acceptance of the gift of the mobile home and assignation of the agreement. 5 Neither the gift nor the assignation are to have any effect until the owner has received the evidence mentioned in sub-paragraph (3) and the notification required in sub-paragraph (4). 6 The owner may not require any payment to be made (whether to the owner or otherwise) in connection with the gift of the mobile home, and the assignation of the agreement. Re-siting of mobile home 10 1 The owner is entitled to require that the occupier’s right to station the mobile home is exercisable for any period in relation to another pitch forming part of the protected site (“the other pitch”) if (and only if)— a on the application of the owner, the court is satisfied that— i the other pitch is broadly comparable to the occupier’s original pitch; and ii it is reasonable for the mobile home to be stationed on the other pitch for that period; or b the owner needs to carry out essential repair or emergency works that can only be carried out if the mobile home is moved to the other pitch for that period, and the other pitch is broadly comparable to the occupier’s original pitch. 2 If the owner requires the occupier to station the mobile home on the pitch under sub-paragraph (1), the owner must, if the occupier so requires, secure that the mobile home is returned to the original pitch— a where sub-paragraph (1)(a) applies, on the expiry of the period mentioned in sub-paragraph (1); or b where sub-paragraph (1)(b) applies, on the completion of the essential repair or emergency works. 3 Sub-paragraph (2) does not apply where the original pitch cannot be used as a pitch. 4 The owner shall pay all the costs and expenses incurred by the occupier in connection with the mobile home being moved to and from the other pitch. . 8 After paragraph 10 (re-siting of mobile home) insert— Undisturbed possession of the mobile home 11 1 The occupier is entitled to undisturbed possession of the mobile home together with the pitch during the continuance of the agreement. 2 Sub-paragraph (1) is subject to paragraphs 10, 12, 13 and 14. Owner’s right of entry to the pitch 12 The owner may enter the pitch without prior notice between the hours of 9 a.m. and 6 p.m. to— a deliver written communications, including post and notices, to the occupier; and b read any meter for gas, electricity, water, sewerage or other services supplied by the owner. 13 The owner may enter the pitch to carry out essential repair or emergency works on giving as much notice to the occupier (whether in writing or otherwise) as is reasonably practicable in the circumstances. 14 Unless the occupier has agreed otherwise, the owner may enter the pitch for a reason other than those specified in paragraphs 12 or 13 only if the owner has given the occupier at least 14 clear days’ written notice of the date, time and reason for the visit. 15 The rights conferred by paragraphs 12 to 14 do not extend to the mobile home. The pitch fee 16 1 Once reviewed, the pitch fee can only be changed at the relevant date. 2 For the purposes of sub-paragraph (1) “the relevant date” is— a where paragraph 17(1) applies the next review date; b where paragraph 19(2) applies the 28th day after the date on which the owner served the notice under paragraph 19(1); or c where paragraph 20(3)(b) applies the 28th day after the date of the court order determining the amount of the pitch fee. 17 1 The pitch fee may be reviewed at the review date if, at least 28 clear days before that review date, the owner has served on the occupier a written notice setting out the owner’s proposal in respect of the new pitch fee. 2 The notice referred to in sub-paragraph (1) must set out the services which the agreement provides that are included in the pitch fee proposed by the owner. 3 If at any time the occupier agrees to the proposed pitch fee it shall be payable as from the review date. 4 If the occupier does not agree to the proposed pitch fee the owner or the occupier may apply to the court for an order determining the amount of the new pitch fee. 5 An application under sub-paragraph (4) may be made at any time after the end of the period of 28 days beginning with the review date. 18 1 If the owner has not served a notice under paragraph 17(1) by the time by which it required to be served, the occupier can serve a notice (“a review request”) on the owner requesting the owner to serve a notice under paragraph 19(1). 2 If the owner fails to serve a notice under paragraph 19(1) within the period of 28 days beginning with the date the occupier served the review request then the occupier may apply to the court for an order determining the amount of the new pitch fee. 19 1 The pitch fee may be reviewed at a date after the review date if the owner serves on the occupier a written notice setting out the owner’s proposals in respect of a new pitch fee. 2 If at any time the occupier agrees to the proposed pitch fee, it shall be payable as from the 28th day after the date on which the owner serves the notice under sub-paragraph (1). 3 If the occupier does not agree to the proposed pitch fee the owner or the occupier may apply to the court for an order determining the amount of the new pitch fee. 4 An application under sub-paragraph (3) may be made at any time after the end of the period of 56 days beginning with the date on which the owner serves the notice under sub-paragraph (1). 20 1 Where an application is made to the court under paragraphs 17(4), 18(2) or 19(3), the court shall, if the court considers it reasonable for the pitch fee to be changed, make an order determining the amount of the new pitch fee. 2 The occupier shall continue to pay the current pitch fee to the owner until such time as the new pitch fee is agreed by the occupier or an order determining the amount of the new pitch fee is made by the court. 3 If the court makes such an order, the new pitch fee shall be payable— a where the application was made under paragraph 17(4), as from the review date; b where the application was made under paragraphs 18(2) or 19(3), as from the 28th day after the date of the court order determining the amount of the pitch fee. 21 The occupier shall not be treated as being in arrears— a where either paragraph 17(3) or 19(2) applies, until the 28th day after the date on which the new pitch fee is agreed; or b where paragraph 20(3) applies until the 28th day after the date of the court order determining the amount of the new pitch fee. 22 1 When determining the amount of the new pitch fee particular regard shall be had to— a any sums expended by the owner since the last review date on improvements— i which are for the benefit of the occupiers of mobile homes on the protected site; ii which were the subject of consultation in accordance with paragraph 25(e) and (f); and iii to which a majority of the occupiers have not disagreed in writing or which, in the case of such disagreement, the court, on the application of the owner, has ordered should be taken into account when determining the amount of the new pitch fee; b any decrease in the amenity of the protected site or the facilities and services provided on that site since the last review date; and c the effect of any enactment, other than an order made under paragraph 8(2), which has come into force since the last review date. 2 When calculating what constitutes a majority of the occupiers for the purposes of sub-paragraph (1)(a)(iii) each mobile home is to be taken to have only one occupier and, in the event of there being more than one occupier of a mobile home who has responded to the consultation, its occupier is to be taken to be the occupier whose name first appears on the agreement. 3 In a case where the pitch fee has not been previously reviewed, references in this paragraph to the last review date are to be read as references to the date when the agreement commenced. 23 1 When determining the amount of the new pitch fee— a any costs incurred by the owner in connection with expanding the protected site shall not be taken into account; and b there is a presumption that the pitch fee shall increase or decrease by a percentage which is no more than any percentage increase or decrease in the retail prices index since the last review date, unless this would be unreasonable having regard to paragraph 22(1). 2 In a case where the pitch fee has not been previously reviewed, references in this paragraph to the last review date are to be read as references to the date when the agreement commenced. Occupier’s obligations 24 The occupier must— a pay the pitch fee to the owner; b pay to the owner all sums due under the agreement in respect of gas, electricity, water, sewerage or other services supplied by the owner; c keep the mobile home in a sound state of repair; d maintain in a clean and tidy condition— i the outside of the mobile home; and ii the pitch, including all fences and outbuildings belonging to, or enjoyed with, it and the mobile home; and e if requested by the owner, provide documentary evidence of any costs or expenses in respect of which the occupier seeks reimbursement. Owner’s obligations 25 The owner must— a if requested by the occupier, provide, free of charge, documentary evidence in support and explanation of— i any new pitch fee; ii any charges for gas, electricity, water, sewerage or other services payable by the occupier to the owner under the agreement; and iii any other charges, costs or expenses payable by the occupier to the owner under the agreement; b if requested by the occupier, provide, free of charge, a copy of the current public liability insurance certificate in respect of the protected site; c be responsible for repairing, and where necessary renewing the base on which the mobile home is stationed and for maintaining any gas, electricity, water, sewerage or other services supplied by the owner to the pitch or to the mobile home; d maintain in a clean and tidy condition those parts of the protected site, including access ways, site boundary fences and trees, which are not the responsibility of any occupier of a mobile home stationed on the protected site; e consult the occupier about improvements to the protected site in general, and in particular about those which the owner wishes to be taken into account when determining the amount of any new pitch fee; and f consult a qualifying residents’ association, if there is one, about all matters which relate to the operation and management of, or improvements to, the protected site and may affect the occupiers either directly or indirectly. 26 The owner must not do or cause to be done anything which may adversely affect the ability of the occupier to perform the occupier’s obligations under paragraph 24(c) and (d). 27 For the purposes of paragraph 25(e), to “consult the occupier” means— a to give the occupier at least 28 clear days’ notice in writing of— i the proposed improvements and how they will benefit the occupier in the long and short term; ii how the pitch fee may be affected when it is next reviewed; and iii when and where the occupier can make representations about the proposed improvements; and b to take into account any representations made by the occupier about the proposed improvements, in accordance with paragraph (a)(iii), before undertaking them. 28 For the purposes of paragraph 25(f), to “consult a qualifying residents’ association” means— a to give the association at least 28 clear days’ notice in writing of— i the matters mentioned in paragraph 25(f) and how they may affect the occupiers either directly or indirectly in the long and short term; and ii when and where the association can make representations about the matters; and b to take into account any representations made by the association, in accordance with paragraph (a)(ii), before proceeding with the matters. Owner’s name and address 29 1 The owner must, by notice, inform the occupier and any qualifying residents’ association of the address in Scotland at which notices (including notices of proceedings) may be served on the owner by the occupier or association. 2 If the owner fails to comply with sub-paragraph (1), then (subject to sub-paragraph (5)) any amount otherwise due from the occupier to the owner in respect of the pitch fee shall be treated for all purposes as not being due at any time before the owner does so comply. 3 Where in accordance with the agreement the owner gives any written notice to the occupier or (as the case may be) a qualifying residents’ association, the notice must contain the following information— a the name and address of the owner; and b if that address is not in Scotland, an address in Scotland at which notices (including notices of proceedings) may be served on the owner. 4 Subject to sub-paragraph (5), where— a the occupier or a qualifying residents’ association receives a written notice, but b it does not contain the information required by sub-paragraph (3), the notice shall be treated as not having been given until such time as the owner gives the information to the occupier or (as the case may be) the association in respect of the notice. 5 An amount or notice within sub-paragraph (2) or (4) (as the case may be) shall not be treated as mentioned in that sub-paragraph in relation to any time when, by virtue of an order of any court or tribunal, there is in force an appointment of a receiver or manager whose functions include receiving from the occupier the pitch fee, payments for services supplied or other charges. 6 Nothing in sub-paragraphs (3) to (5) applies to any notice containing a demand to which paragraph 30(1) applies. 30 1 Where the owner makes any demand for payment by the occupier of the pitch fee, or in respect of services supplied or other charges, the demand must contain— a the name and address of the owner; and b if that address is not in Scotland, an address in Scotland at which notices (including notices of proceedings) may be served on the owner. 2 Subject to sub-paragraph (3), where— a the occupier receives such a demand; but b it does not contain the information required by sub-paragraph (1), the amount demanded shall be treated for all purposes as not being due from the occupier to the owner at any time before the owner gives that information to the occupier in respect of the demand. 3 The amount demanded shall not be treated as mentioned in sub-paragraph (2) in relation to any time when, by virtue of an order of any court or tribunal, there is in force an appointment of a receiver or manager whose functions include receiving from the occupier the pitch fee, payments for services supplied or other charges. Qualifying residents’ association 31 1 A residents’ association is a qualifying residents’ association in relation to a protected site if— a it represents the occupiers of mobile homes on the site; b at least 50% of the occupiers of the mobile homes on the site are members of the association; c it is independent from the owner, who together with any agent or employee of the owner is excluded from membership; d subject to paragraph (c), membership is open to all occupiers who own a mobile home on that site; e it maintains a list of members which is open to public inspection together with the rules and constitution of the association; f it has a chairman, secretary and treasurer who are elected by and from the members; and g with the exception of administrative decisions taken by the chairman, secretary and treasurer acting in their official capacities, decisions are taken by voting and there is only one vote exercisable by the occupier for each mobile home. 2 When calculating the percentage of occupiers for the purpose of sub-paragraph (1)(b) and determining who shall exercise the vote in relation to sub-paragraph (1)(g), each mobile home shall be taken to have only one occupier and, in the event of there being more than one occupier of a mobile home who is a member of the association or who exercises any vote, its occupier is to be taken to be the occupier whose name first appears on the agreement. Interpretation 32 In this Schedule— “caravan site” has the same meaning as in Part 1 of the Caravan Sites and Control of Development Act 1960 ; “essential repair or emergency works” means— repairs to or replacement of the base on which the mobile home is stationed; repairs or works needed to comply with any relevant legal requirements; or repairs or works in connection with restoration following flood, landslide or other natural disaster; “gypsies and travellers” means persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling show people or persons engaged in travelling circuses, travelling together as such; “local authority gypsy and traveller site” means any land which— is occupied by a local authority as a caravan site providing accommodation for gypsies and travellers; and is a protected site; “pitch” means the land, forming part of the protected site and including any garden area, on which the occupier is entitled to station the mobile home under the terms of the agreement; “pitch fee” means the amount which the occupier is required by the agreement to pay to the owner for— the right to station the mobile home on the pitch and for use of the common areas of the protected site and their maintenance; and water and sewerage services, unless the same are specifically excluded from forming part of the pitch fee by the agreement; but the pitch fee does not include amounts due in respect of gas, electricity or other services, unless the agreement expressly provides that the pitch fee includes such amounts; “registered social landlord” means a body registered in the register maintained under section 20(1) of the Housing (Scotland) Act 2010 ; “registered social landlord gypsy and traveller site” means any land which— is occupied by a registered social landlord as a caravan site providing accommodation for gypsies and travellers; and is a protected site; “retail prices index” means the general index (for all items) published by the Office for National Statistics or, if that index is not published for a relevant month, any substituted index or index figures published by that Office; “review date” means the date specified in the written statement as the date on which the pitch fee will be reviewed in each year, or if no such date is specified, each anniversary of the date the agreement commenced; and “written statement” means the written statement that the owner of the protected site is required to give to the occupier by section 1(2) of this Act. . Amendment of Part 2 of Schedule 1 to the 1983 Act 3 In Part 2 of Schedule 1 to the 1983 Act (matters concerning which terms may be implied by the court) paragraphs 1, 6 and 7 are omitted. Transitional and saving provision 4 1 This article applies in relation to any agreement to which the 1983 Act applies and which commenced at any time before the relevant date. 2 In this article— “relevant date” means 1st September 2013; and “review date” has the same meaning as in paragraph 32 of Part 1 of Schedule 1 to the 1983 Act. 3 The terms implied in the agreement by virtue of this Order have effect only in relation to times falling on or after the relevant date. 4 If the terms so implied make provision which is inconsistent with— a any express term of the agreement; or b any term implied in the agreement by virtue of section 2(2) of the 1983 Act, the term referred to in sub-paragraph (a) or (b) will cease to have effect, in relation to times falling on or after the relevant date, so far as it is inconsistent with the terms implied by virtue of this Order. 5 Nothing in this Order affects— a any right or liability which has accrued before the relevant date, or any remedy in respect of any such right or liability; b any application to imply in the agreement terms concerning the matters mentioned in Part 2 of Schedule 1 to the 1983 Act which was made before that date by virtue of section 2(2) of the 1983 Act; c any application to terminate the agreement which was made before that date by virtue of paragraph 4, 5 or 6 (termination by owner) of Part 1 of Schedule 1 to the 1983 Act; d the amount of any new pitch fee payable in respect of any period which falls (wholly or in part) on or after the relevant date which was determined before that date; or e (without prejudice to the generality of sub-paragraph (a)) any right to the determination of a new pitch fee payable— i as from a date before the relevant date; and ii in respect of any period which falls (wholly or in part) on or after the relevant date, if that right subsists immediately before the relevant date. 6 If the review date in 2013 falls on the relevant date, or falls after that date but before 30th September 2013, then— a for the purposes of paragraph 17(1) and (5) (review of pitch fee) of Part 1 of Schedule 1 to the 1983 Act, the review date will be deemed to be 30th September 2013; but b any written notice served on the occupier by the owner before the relevant date and setting out the owner’s proposals in respect of the new pitch fee payable as from the review date in 2013 will be as effective for the purposes of paragraph 17(1) as one served on the relevant date. 7 In the case of improvements begun on the relevant date, or after that date but before 30th September 2013, regard may be had to any sums expended on such improvements when determining the amount of a new pitch fee in accordance with paragraph 22 of Part 1 of Schedule 1 to the 1983 Act even if the consultation requirements in paragraph 25(e) and (f) (owner’s obligations) of that Part of that Schedule have not been complied with by the owner in relation to the improvements. 8 The owner is required, on the first review date which falls after the relevant date, to provide the occupier with a copy of the terms implied in the agreement including those so implied by virtue of this Order. M J BURGESS Authorised to sign by the Scottish Ministers St Andrew’s House, Edinburgh 26th June 2013