Gurmeet Kaur Natt and Another v Zulfiqar Ali Osman and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lady Justice Gloster,The Chancellor |
| Judgment Date | 26 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1520 |
| Docket Number | Case No: B2/2013/2797 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 November 2014 |
[2014] EWCA Civ 1520
The Chancellor of the High Court
Lord Justice Patten
and
Lady Justice Gloster
Case No: B2/2013/2797
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE DIGHT
1CL10510 and 2CL10040
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Piers Harrison (instructed by Layzells Solicitors) for the Appellants
Mr Paul Letman (instructed by Anthony Gold Solicitors) for the Respondents
Hearing dates: 6th November 2014
The Chancellor:
This is an appeal about the validity of a notice dated 17 June 2010 ("the Notice") served by the appellants, Gurmeet Kaur Natt and Malkit Singh Natt, pursuant to section 13 of the Leasehold Reform, Housing and Urban Development Act 1993 ("the 1993 Act"), claiming the right to acquire the freehold of 19 Coniston Road, Muswell Hill, London N10 2BL ("the Property") pursuant to the collective enfranchisement provisions of the 1993 Act.
The Notice failed to comply with section 13(3)(e) of the 1993 Act because it did not give the names of one of the qualifying tenants in the Property, the address of the flat of that qualifying tenant and the particulars of that qualifying tenant's lease as specified in section 13(3)(e)(i).
The appeal is from that part of the order dated 12 September 2013 of His Honour Judge Dight in the Central London County Court by which he declared that the Notice is invalid and a nullity because it failed to comply with section 13(3)(e).
The background
The respondents, Zulfiqar Ali Osman and Shahid Ali, are the freehold owners of the Property. The Property comprises four sets of premises, each of which was at the material time held on a lease granted for a term of 99 years from 25 March 1988. The four sets of premises are spread over three floors. Flats 1 and 2 are situated on the ground floor. Flat 3 is situated on the second floor. Flat 4 is on the third floor.
The first appellant, who is the daughter of the second appellant, is the leaseholder of Flat 1. The leaseholder of Flat 2 is a Ms Julia Lightle. The second appellant is the leaseholder of Flat 3.
The Property has an attic on the third floor. It is called Flat 4. The only access to it is by way of a staircase outside Flat 3. The leaseholder of the attic is Ms Sobia Ali, the respondents' daughter.
The Notice said that the Property contained three flats held by qualifying tenants. It said that the full names of all the qualifying tenants of flats in the Property, with the addresses of the flats and the particulars required by the 1993 Act were set out in schedules 1 and 2 to the Notice. Schedule 1 gave the details in respect of Flats 1 and 3 and described the appellants as participating qualifying tenants. Schedule 2 gave details in respect of Flat 3 and described Ms Lightle as a non-participating qualifying tenant. The Notice contained no reference at all to the attic or Ms Ali or her lease.
That omission was deliberate because the appellants took the view that the attic was not a flat for the purposes of the 1993 Act. That was because they considered that the landing outside the front door of Flat 3 —on which the staircase giving the only access to Flat 4 had been constructed – was, on the proper interpretation of the lease of Flat 3, within the demise of Flat 3 and so was a trespass and should be removed.
The respondents did not agree with that view. They commenced proceedings in the Central London County Court in which they alleged that the Notice was invalid and a nullity (save for giving rise to an obligation to pay certain costs pursuant to section 33 of the 1993 Act) because it failed to give details about Flat 4 in breach of the "mandatory requirements" of section 13(3)(e) of the 1993 Act.
The appellants served a defence, in which they alleged that Flat 4 was not a flat as defined in the 1993 Act because, among other things, there was no reasonable prospect of it being occupied as a dwelling since the only access to it was by means of the staircase constructed within the demise of Flat 3 and so a trespass. In the defence they also stated that their primary position was that the requirements of section 13(3)(e) are directory rather than mandatory and that any failure (which was denied) to comply with those requirements would not invalidate the Notice. They said that their secondary position was that Flat 4 was not a flat for the purposes of the 1993 Act, the tenant of Flat 4 was therefore not a qualifying tenant and the Notice was correctly drawn.
The respondents commenced separate proceedings in the Central London County Court as to the proper interpretation of the lease of Flat 3 (as to the extent of the demise) and, if necessary, rectification.
Both sets of proceedings came before Judge Dight and were heard together. He handed down a single detailed and comprehensive judgment on 12 September 2013 in respect of them both. He held that, on the proper interpretation of the lease of Flat 3, the obvious intention was that the area of the demise was confined to the premises behind the front door of Flat 3 and the area outside that door was retained by the landlord. He held that rectification did not apply. There is no challenge on the present appeal to that part of Judge Dight's judgment.
Judge Dight held that Flat 4 was configured as a flat, was being used and had for some time been used as a flat, and there was physical and lawful access to it, and, accordingly, it satisfied the definition of a "flat" for the purposes of the 1993 Act. There is no challenge on this appeal to that part of Judge Dight's judgment.
Finally, Judge Dight held that the omission from the Notice of the details relating to Flat 4 specified in section 13(3)(e) of the 1993 Act made the Notice invalid. He reached that decision after considering a large number of cases, with particular reliance on the reasoning and decision of Morgan J in Poets Chase Freehold Co Ltd v Sinclair Gardens Investments (Kensington) Ltd v [2007] EWHC 1776, [2008] 1 WLR 768. He said as follows, by way of a concluding summary:
"It seems to me that the same reasoning [as that of Morgan J in the Poets Chase state the full names of case] applies to the errors in this case in the construction of the notice against the statutory background, so that one starts as he [Morgan J] says, by having regard to the terms of the same statutory provision as was before him. The normal position being, particularly where the word "must" is used requiring a party to set out certain information, that a notice which fails to comply with such a requirement is an invalid notice. There is nothing in the [1993] Act which has been drawn to my attention which would save the notice and that compels me to the conclusion, for the same reasons that led Mr. Justice Morgan to his conclusion, that the notice was therefore ineffective and invalid. His reasoning and decision is, in my judgment, binding on me."
The present appeal is from Judge Dight's declaration of the invalidity of the Notice and its nullity which reflected that part of his judgment.
The statutory scheme
The following is a very brief summary of the statutory scheme so far as relevant to providing the context for this appeal.
Chapter 1 of Part I of the 1993 Act confers on certain tenants of flats held under long residential leases in certain premises the right to collective enfranchisement, that is to say the right to have the freehold of those premises acquired on their behalf by a person appointed by them for that purpose and at a price determined in accordance with schedule 6 to the 1993 Act. Tenants entitled to participate in collective enfranchisement are called "qualifying tenants". The premises must comprise two or more flats held by qualifying tenants. The total number of flats held by such tenants must be not less than two-thirds of the total number of flats contained in the premises.
The right to collective enfranchisement is exercised by a notice under section 13 of the 1993 Act. The notice must be served by qualifying tenants of flats which, at the date of the notice, constitute not less than half of the total number of flats in the premises. The notice must comply with the requirements specified in section 13(3). Section 13(3)(e) provides as follows:
"(3) The initial notice must—
…
(e) state the full names of all the qualifying tenants of flats contained in the specified premises and the addresses of their flats, and contain in relation to each of those tenants,
(i) such particulars of his lease as are sufficient to identify it, including the date on which the lease was entered into, the term for which it was granted and the date of the commencement of the term,"
Paragraph 15 of schedule 3 to the 1993 Act deals with inaccuracies or misdescription in a notice under section 13. It provides as follows:
Inaccuracies or misdescription in initial notice
15(1) The initial notice shall not be invalidated by any inaccuracy in any of the particulars required by section 13(3) or by any misdescription of any of the property to which the claim extends.
(2) Where the initial notice—
(a) specifies any property or interest which was not liable to acquisition under or by virtue of section 1 or 2, or
(b) fails to specify any property or interest which is so liable to acquisition, the notice may, with the leave of the court and on such terms as the court may think fit, be amended so as to exclude or include the property or interest in question.
(3) Where the initial notice is so amended as to exclude any property or interest, references to the property or interests specified in the notice under any provision of section 13(3) shall be construed...
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