Decision Nº LRX 25 2013. Upper Tribunal (Lands Chamber), 10-09-2014
| Jurisdiction | UK Non-devolved |
| Judge | Martin Rodger QC, Deputy President |
| Date | 10 September 2014 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 25 2013 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2014] UKUT 0397 (LC)
UTLC Case Numbers: LRX/25/2013
LRX/81/2013
LRX/87/2013
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
Landlord and Tenant – right to manage – whether initial notice must specify that RTM Company’s articles of association are available for inspection on a Saturday or Sunday –section 78(5)(b), Commonhold and Leasehold Reform Act 2002 – signature by a corporate secretary – whether notice invalid if section 44, Companies Act 2006 not complied with – whether RTM claim defeated by omission to serve claim notice on intermediate landlord
IN THE MATTER OF APPEALS AGAINST THREE DECISIONS OF THE
LEASEHOLD TRIBUNAL
BETWEEN:
ELIM COURT RTM CO LTD Appellant
AND
AVON FREEHOLDS LTD Respondent
LRX/25/2013
ASSETHOLD LIMITED Appellant
AND
369 UPLAND ROAD RTM COMPANY LTD &
CANADIAN AVENUE RTM COMPANY LTD Respondents
LRX/81/2013
SINCLAIR GARDENS INVESTMENTS (KENSINGTON) LIMITED Appellant
AND
(1) FARNBOROUGH ROAD (CALLOWAY HOUSE) RTM COMPANY
LIMITED
(2) FARNBOROUGH ROAD (BRAND HOUSE)
RTM COMPANY LIMITED Respondent
LRX/87/2013
Re: Elim Court, Elim Terrace, Plymouth PL3
369 and 371 Upland Road, London SE22
65 Canadian Avenue, London SE6
1-58 Calloway House, Coombe Way, Farnborough, Hampshire GU14
1-117 Brand House, Coombe Way, Farnborough, Hampshire GU14
Before Martin Rodger QC, Deputy President
Sitting at: 45 Bedford Square, London WC1B 3AS
on
29-30 July 2014
LRX/25/2013
Mrs Margarita Madjriska-Mossop of Mayfield Law, solicitors, for the Appellant
Mr Justin Bates, instructed by Conway & Co, solicitors for the Respondent
LRX/81/2013
Mr Justin Bates, instructed by Conway & Co, solicitors for the Appellant
Mrs Margarita Madjriska-Mossop of Mayfield Law, solicitors for the Respondent
LRX/87/2013
Mr Oliver Radley-Gardner, instructed by W H Matthews & Co. solicitors for the Appellant
Mrs Margarita Madjriska-Mossop of Mayfield Law, solicitors for the Respondent
© CROWN COPYRIGHT 2014
The following cases are referred to in this decision:
Assethold Limited v 14 Stansfield Road RTM Company Limited [2012] UKUT 262 (LC)
Gateway Property Holdings Limited v 6-10 Montrose Gardens RTM Company Limited [2011] UKUT 349(LC)
Assethold Limited v 15 Yonge Park RTM Company Ltd [2011] UKUT 379 (LC)
Hilmi & Associates Limited v 20 Penbridge Villas Freehold Limited [2010] 1 WLR 2750
London & Clydeside Estates Limited v Aberdeen District Council [1980] 1 WLR 182
R v Secretary of State for the Home Department ex-parte Jeyeanthan [2000] 1 WLR 354
Avon Freeholds Limited v Regent Court RTM Company Limited [2013] UKUT 0213 (LC)
7 Strathray Gardens Limited v Point Star Shipping & Finance Limited [2004] EWCA 1669
Speedwell Estates Limited v Dalziel [2002] 1 EGLR 55
Byrnlea Property Investments Limited v Ramsay [1969] 2QB 253
Sinclair Gardens Investments Ltd (Kensington) Limited v Poets Chase Freehold Company Limited [2007] EWHC 1775 (Ch)
Assethold Limited v 13-24 Romside Place RTM Company Limited [2013] UKUT 0603 (LC)
Petch v Gurney [1994] 3 ALL ER 371
Newbold v Coal Authority [2014] 1 WLR 1288
Assethold Ltd v 7 Sunny Gardens RTM Co Ltd [2013] UKUT 509 (LC)
Melanesian Mission Trust Board v Australian Mutual Providence Society [1997] 2 EGLR 128 PC
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These appeals concern applications by five separate RTM companies seeking to acquire the right to manage conferred by Part 2 of the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act). As is well known, the 2002 Act created a “no-fault” right to manage by which, on satisfaction of certain preconditions, a qualifying majority of the tenants of a building containing leasehold flats are entitled, through the medium of an RTM company established by them, to take over the management of the building from their landlord. These appeals raise two important recurring issues (and some subsidiary issues) concerning the validity of the steps which an RTM company is required to take to initiate the acquisition of the right to manage.
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The five RTM companies concerned with the various appeals share one common feature: in each case the company secretary is itself a company. In each of the appeals the RTM company has been represented before me by Mrs Margarita Madjriska-Mossop of Mayfield Law, solicitors. In LRX/87/2013 the appellant landlord, Sinclair Gardens Investments (Kensington) Limited has been represented by Mr Oliver-Radley Gardner of counsel while in the remaining appeals the landlords, Avon Freeholds Limited and Assethold Limited have been represented by Mr Justin Bates of counsel. I am extremely grateful to each of the advocates for their considerable assistance in these appeals.
The relevant statutory procedure in outline
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The right to manage is acquired in accordance with Chapter 1 of Part 2 to the 2002 Act (section 71(2)). The procedure for its acquisition begins with the service of a notice of invitation to participate under section 78. At that stage the only persons who are entitled to be members of the RTM company are the qualifying tenants of flats in the premises over which the right to manage is claimed (section 74(1)(a)). Qualifying tenants are tenants holding a flat under a long lease (section 75(2)). The purpose of a notice of invitation to participate under section 78 is to extend the opportunity of membership of the RTM company to all of the qualifying tenants who are not yet members.
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Section 78 of the 2002 Act is relevant to three of the appeals so I will set it out in full:
“78. Notice inviting participation
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Before making a claim to acquire the right to manage any premises, a RTM company must give notice to each person who at the time when the notice is given –
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is the qualifying tenant of the flat contained in the premises, but
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neither is nor has agreed to become a member of the RTM company.
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A notice given under this section (referred to in this Chapter as a “notice of invitation to participate”) must
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state that the RTM company intends to acquire the right to manage the premises,
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state the names of the members of the RTM company,
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invite the recipients of the notice to become members of the company,
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contain such other particulars (if any) as may be required to be contained in notices of invitation to participate by regulations made by the appropriate national authority.
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A notice of invitation to participate must also comply with such requirements (if any) about the form of notices of invitation to participate and may be prescribed by regulations so made.
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A notice of invitation to participate must either –
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be accompanied by a copy of the articles of association of the RTM company, or
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include a statement about inspection and copying of the articles of association of the RTM company.
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A statement under sub-section (4)(b) must –
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specify a place (in England or Wales) at which the articles of association may be inspected,
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specify as the times at which they may be inspected periods of at least two hours on each of at least three days (including a Saturday or Sunday or both) within the 7 days beginning with the day following that on which the notices given,
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specify a place (in England or Wales) at which, at any time within those 7 days, a copy of the articles of association may be ordered, and
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specify a fee for the provision of an ordered copy, not exceeding the reasonable cost of providing it.
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Where a notice given to a person includes a statement under section (4)(b), the notice is to be treated as not having been given to him if he is not allowed to undertake an inspection, or is not provided with a copy, in accordance with the statement.
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A notice of invitation to participate is not invalidated by any inaccuracy in any of the particulars required by or by virtue of this section.”
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The second stage in the acquisition of the right to manage is the giving by the RTM company of a claim notice under section 79 of the 2002 Act. Section 79(6) requires that a notice be given to each person who is on the relevant day a landlord under a lease of the whole or any part of the premises. Section 79(2) lays down the following preconditions to the...
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