Decision Nº LRX 125 2014. Upper Tribunal (Lands Chamber), 15-06-2015 , [2015] UKUT 0236 (LC)
| Jurisdiction | UK Non-devolved |
| Judge | His Honour Judge Stuart Bridge |
| Neutral Citation | [2015] UKUT 0236 (LC) |
| Date | 15 June 2015 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 125 2014 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2015] UKUT 0236 (LC)
UTLC Case Number: LRX/125/2014
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LANDLORD AND TENANT – service charges – Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002 – right to manage – claim notice specifying ‘the premises’ – section 80(2) – effect of including land which could not be part of the claim – function of section 81(1) – interpretation of claim notice – appeal dismissed
IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE
THE FIRST TIER TRIBUNAL PROPERTY CHAMBER
(RESIDENTIAL PROPERTY)
And
PLATINUM HOUSE (HARROW) RTM CO LTD
Respondent
Re: Platinum House,
Lyon Road,
Harrow
Middlesex
HA1 2EX
Before: His Honour Judge Stuart Bridge
Sitting at: Royal Courts of Justice, Strand, London WC2A 2LL
on
29 April 2015
Anthony Radevsky instructed by Brethertons LLP for the Appellant
Margarita Mossop for the Respondent
© CROWN COPYRIGHT 2015
The following cases are referred to in this decision:
Albion Residential Ltd v Albion Riverside Residents RTM Co Ltd [2014] UKUT 0006 (LC)
Assethold Ltd v 15 Yonge Park RTM Co Ltd [2011] UKUT 379 (LC)
Assethold Ltd v 14 Stansfield Road RTM Co Ltd [2012] UKUT 262 (LC)
Cadogan v Morris [1999] 1 EGLR 59
Gala Unity Ltd v Ariadne Road RTM Co Ltd [2011] UKUT 425 (LC)
Gala Unity Ltd v Ariadne Road RTM Co Ltd [2012] EWCA Civ 1372, [2013] 1 WLR 988
Malekshad v Howard de Walden Estates Ltd (No 2) [2003] EWHC 3106 (Ch), [2004] 1 WLR 862
Moskovitz v 75 Worple Road RTM Co Ltd [2010] UKUT 393
Natt v Osman [2014] EWCA Civ 1520, [2015] 1 WLR 1536
Pineview Ltd v 83 Crampton Street RTM Co Ltd [2013] UKUT 0598 (LC)
Triplerose Ltd v 90 Broomfield Road RTM Co Ltd [2015] EWCA Civ 282
Introduction
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Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002 (‘the 2002 Act’) introduced a statutory right to manage which is exercisable, in respect of premises to which the Chapter applies, by a company (an ‘RTM company’) formed by leaseholders specifically for that purpose. Exercise of this right is often highly contentious, and there have been many cases where landlords have challenged its exercise as they are perfectly entitled to do.
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Platinum House is a single block of 168 flats in Harrow. Miltonland Limited (‘the appellant’) is the landlord under the leases of the flats. An RTM Company, Platinum House (Harrow) RTM Company Limited (‘the respondent’), was incorporated by those holding leases of flats in the block.
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On 6 February 2014, a claim notice (pursuant to section 80 of the 2002 Act) was given to the appellant, thereby initiating a claim on behalf of the respondent to acquire the right to manage the premises. The single issue for determination on this appeal is whether that claim notice was valid. If it was, then the respondent is entitled to the right to manage; if it was not, then it is not.
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On 14 March 2014, the appellant replied by its solicitors acknowledging receipt of the claim notice and serving a counter notice (pursuant to section 84 of the 2002 Act). Although a number of reasons were given in that letter explaining why the claim notice was invalid, only one remains for consideration in this appeal: whether the claim included property, a small yard, which did not fall within the statutory definition of ‘premises’ and whether the inclusion of this property within the claim rendered the claim notice itself invalid.
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Application was made by the respondent to the Ft T seeking a determination that it was entitled to the right to manage. Case management directions were made and, following an inspection of the premises, a hearing took place on 5 June 2014. In determining that the respondent was entitled to the right to manage, the Ft T ruled against the landlord in relation to alleged failures in the participation procedures and in relation to submissions that the building should be excluded on account of its non-residential use. Neither of these issues have been pursued on appeal, permission being granted on 9 December 2014 in respect of three issues, only one of which, as a result of concessions made subsequently by the appellant, remains live. That issue, as described in the grant of permission to appeal, is:
Whether the claim was invalidated by the inclusion of a parcel of land over which the RTM Company was not entitled to acquire the right in the claim notice, and in the description of the premises in the RTM Company’s memorandum and articles of association.
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Counsel for the appellant was asked by this Tribunal to clarify whether the appeal was being pursued on the basis of the description of the premises in the RTM Company’s memorandum and articles of association. He confirmed that no separate point was made in that respect. As a result, the claim notice has been the sole focus of this appeal.
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The claim notice, addressed to the appellant, states, so far as is relevant to the issue in this appeal:
1. PLATINUM HOUSE (HARROW) RTM COMPANY LIMITED (“the company”) of Suite D Eden House, The Office Village, River Way, Uckfield, East Sussex, TN22 1SL, and of which the registered number is 8574808, in accordance with Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”) claims to acquire the right to manage Platinum House, Lyon Road, Harrow and appurtenant property (within the area edged in red on freehold plan NGL88768). (the premises”).
2. The company claims that the premises are ones to which Chapter 1 of the 2002 Act applies on the grounds that the premises a) consist of a self-contained building or part of a building, with or without appurtenant property, b) they contain one hundred and sixty five flats held by qualifying tenants, and c) the total number of flats held by such tenants is not less than two-thirds of the total number of flats contained in the premises.
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Although the claim notice referred to the freehold plan, the plan was not appended to the claim form. The ‘area edged in red’ on that plan comprises the building known as Platinum House, its grounds, and a small yard, measuring some 40 square metres, in the extreme north-west corner of the area. It became clear, in the course of argument before me, that there remained issues between the parties concerning both the topography of the area and the actual use made of the yard. Agreement was reached about the topography, but the parties continue to differ on the issue of use, no relevant factual findings having been made in the Ft T. It is accepted that the yard, although not enclosed, has brick walls to its south and east aspects and there is no direct access between the yard and the remainder of the area edged in red, in particular Platinum House. I consider that that is sufficient to enable me to determine this appeal. I should however record the parties’ factual differences which have not been capable of resolution. The appellant contends that the only access into the yard is and has been from the west (that is from the rear of a property, a grocer’s shop, at 298 Station Road) or from the north (by means of a private way from St John’s Road). The respondent contends that there is and has been further direct access to the yard from the adjacent public car park.
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The contention of the appellant is that, in seeking to define the premises over which it is entitled to the right to manage, the respondent has included the yard. That is not, says the appellant, property over which it has any such entitlement, and its inclusion in the claim renders the claim notice invalid.
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The Ft T dealt with this contention in a single paragraph, headed ‘A defective claim notice?’:
‘[The landlord’s] first objection is that the notice incorrectly refers to land which is not part of the property. Counsel for the landlord did not appear to us to pursue this objection with much vigour at the hearing. We consider that he was right not to do so. The plan submitted to which objection was taken was confirmed by Mr Radley-Gardner [counsel then appearing for the landlord] to be the Land Registry plan for the property. As Ms Mossop [counsel for the RTM company] submits, the claim notice correctly identified the premises and insomuch as it should not have referred to a strip...
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