Decision Nº LRX 29 2012. Upper Tribunal (Lands Chamber), 04-12-2013
| Jurisdiction | UK Non-devolved |
| Judge | Martin Rodger QC, Deputy President |
| Date | 04 December 2013 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 29 2012 |
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UPPER TRIBUNAL (LANDS CHAMBER)
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UT Neutral citation number: [2013] UKUT 0598(LC)
LT Case Number: LRX/29/2012
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LANDLORD AND TENANT – right to manage – claim notice – validity – whether claim notice may validly be signed by RTM company’s solicitor – whether necessary to identify appurtenant property in claim notice – ss.80-81, Commonhold and Leasehold Reform Act 2002- appeal dismissed
IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE
LEASEHOLD VALUATION TRIBUNAL FOR THE
LONDON RENT ASSESSMENT PANEL
and
83 CRAMPTON STREET RTM COMPANY LIMITED Respondent
Re: 83 Crampton Street
London
SE17 3BQ
Before: Martin Rodger QC, Deputy President
Decision on Written Representations
© CROWN COPYRIGHT 2013
The following case are referred to in this decision:
Assethold Ltd v 15 Yonge Park RTM Co Ltd [2011] UKUT 379 (LC)
Assethold Ltd v 14 Stansfield Road RTM Company Ltd [2012] UKUT 262 (LC)
Avon Freeholds Ltd v Regent Court RTM Co Ltd [2013] UKUT 213 (LC)
Dorset Healthcare NHS Trust v MH [2009] UKUT 4 (AAC)
Gala Unity Ltd v Ariadne Court RTM Company Ltd [2011] UKUT 425 (LC)
Gala Unity Ltd v Ariadne Court RTM Company Ltd [2012] EWCA Civ 1372
Moskovitz v 75 Worple Road RTM Co Ltd [2010] UKUT 393
Petch v Gurney [1994] 3 All ER 731
Speedwell Estates Ltd v Dalziel [2002] 1 EGLR 55
St Ermins Property Co Limited v Tingay [2002] EWHC 1673: [2003] L & TR 6
7 Strathray Gardens Ltd v Pointstar Shipping & Finance Ltd [2004] EWCA Civ 1669
West Midland Baptist (Trust) Association v Birmingham Corporation [1968] 2 QB 188
Decision
Introduction
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This is an appeal, brought with the permission of the Tribunal (George Bartlett QC, President) against a decision of the Leasehold Valuation Tribunal for the London Rent Assessment Panel (“the LVT”) given on 19 January 2012 on an application under section 84(3), Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”). The LVT determined that the respondent, 83 Crampton Street RTM Company Ltd, was entitled to acquire the right to manage the large self contained block of flats at 83 Crampton St, London NW8 (“the Building”) from which it derives its name.
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The application had been preceded by a claim notice given under section 79 of the 2002 Act which was served on the appellant by the respondent on 21 June 2011 (“the Claim Notice”). At the hearing before the LVT the appellant raised seven issues, each of a technical or procedural nature, in support of its contention that the application ought to be dismissed. Two of those issues are the subject of this appeal, namely:
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Whether the Claim Notice was defective because it had not been signed by an authorised member or officer of the respondent company, but had instead been signed on its behalf by its solicitors (“the signature issue”).
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Whether the Claim Notice was defective because it failed to specify whether the premises to which it related did or did not include appurtenant property (“the appurtenant property issue”).
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On 14 June 2012 the Tribunal directed that the appeal should be stayed to await the decision of the Court of Appeal in the case of Gala Unity v Ariadne Road RTM Company Limited which was expected to be relevant to the appurtenant property issue. The Court of Appeal gave its decision on 25 October 2012 and the parties in this appeal have made further submissions in writing on its effect.
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I have determined this appeal without an oral hearing on the basis of written representations which have been prepared on behalf of the appellant by Mr Oliver Radley-Gardner of counsel, instructed by P Chevalier & Co, solicitors, and on behalf of the respondent by Mr Simon Serota of Wallace LLP, solicitors. I am grateful to them both for their comprehensive submissions.
The facts
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The relevant facts are not contentious.
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The Building comprises a single modern self contained block of flats. From the register of title the block appears to consist of a basement car park, an undercroft containing seven storage rooms, a ground floor occupied by 8 flats and a further 8 “units” which I take to be in commercial use, above which are eight further floors of flats numbered, each of which is let for a term of 125 years from a common commencement date.
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On 21 June 2011 the respondent sent the Claim Notice to the appellant and to a management company which was also party to the leases of flats at the Building. Shorn of a surplus postcode which the LVT found was immaterial, paragraph 1 of the Claim Notice asserted the respondent’s claim to acquire the right to manage “83 Crampton Street, London NW8 9RE (“the premises”)”. Paragraph 2 then went on as follows:
“The company claims that the premises are ones to which Chapter 1 of the 2002 Act applies on the grounds that the premises consist of a self-contained building or part of a building and contain two or more flats held by qualifying tenants, and 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. (See Note 2 below).”
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Note 2, to which reference was made, informed the recipient that “The relevant provisions are contained in section 72 of the 2002 Act (premises to which Chapter 1 applies)”.
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The Claim Notice contained a Schedule giving the names of the qualifying tenants who are members of the respondent company and particulars of their leases. It concluded with a signature accompanied by these words:
“Signed by authority of the company
[signature of Wallace LLP]
Wallace LLP for and on behalf of the company”
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A counter-notice served by the appellant’s solicitors on 25 July 2011 disputed the claim. The counter-notice identified section 72(1) of the 2002 Act as one of a number of statutory provisions justifying the appellant’s assertion that the respondent was not entitled to acquire the right to manage the premises specified in the Claim Notice.
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In its statement of case to the LVT the appellant took the point that the Claim Notice was defective because it had not been signed by an authorised member or officer of the company. It also took issue with the Claim Notice on the grounds that it identified the premises to which the claim related only by reference to their postal address and did not refer to any appurtenant property. The appellant pointed out that there were “open areas including the car park surrounding the Building” and that this was appurtenant property for the purpose of the 2002 Act which ought either to have been expressly included or expressly excluded when the premises were identified in the Claim Notice.
The LVT’s decision
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The LVT dealt with the issues it had to determine in six concise sentences. At paragraph 9(iii) of its decision it disposed of the signature issue in these terms:
“The Tribunal finds that the signature of Wallace LLP on the Claim Notice is provided by an agent with the appropriate delegated authority from the board members of the RTM Company.”
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The LVT was equally brisk in its dismissal of the appurtenant property issue at paragraph 9(iv) of its decision, where it said:
“The Tribunal accepts the Applicant’s submissions that there is no requirement that appurtenant properties be specified in the Claim Notice.”
The relevant statutory provisions
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Chapter 1 of Part 2 of the 2002 Act makes provision for the acquisition of rights in relation to the management of premises to which the chapter applies by a company, known as an RTM company, controlled by the qualifying tenants of flats forming part of those premises. The rights which are to be acquired and exercised in accordance with those provisions are referred to collectively as “the right to manage”.
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Premises to which Chapter 1 applies are identified in section 72 of the 2002 Act which provides, so far as is relevant:
“72.-(1) This Chapter applies to premises if—
(a) they consist of a self-contained building or part of a building, with or without appurtenant property,
(b) they contain two or more 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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Section 79(1) provides that a claim to acquire the right to manage any premises is made by giving a claim notice. Section 79(6) identifies those on whom a copy of a claim notice must be served. They include each person who on the relevant date is landlord under a lease of the whole or any part of the premises, a party to such a lease otherwise than as landlord or tenant, or a manager appointed under Part 2 of the Landlord and Tenant Act 1987 (c. 31) to act in relation...
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