Lay and Others v Ackerman and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Neuberger,Lady Justice Arden |
| Judgment Date | 04 March 2004 |
| Neutral Citation | [2004] EWCA Civ 184 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2003/1724/CCRTF |
| Date | 04 March 2004 |
[2004] EWCA Civ 184
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HHJ Cowell)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lady Justice Arden
Lord Justice Neuberger
Case No: B2/2003/1724/CCRTF
W Clark Esq (instructed by Messrs Farrer & Co) for the Appellants
A Radevsky Esq (instructed by Messrs Wallace & Partners) for the Respondents
Preliminary
This is an appeal from His Honour Judge Cowell who, on 27 January 2003 decided that a counter-notice purportedly served pursuant to s45 of Chapter II of Part I of the Leasehold Reform, Housing & Urban Development Act 1993 ("the 1993 Act") was invalid.
The basic facts are as follows. Mr Mark Ackerman and Mr Barry Ackerman, the respondents, are tenants of premises known as 8 Alexton Yard, London W1 ("the Premises"), having taken an assignment of a lease dated 14 July 1954, on 29 May 1998. The appellants, Mr Richard Lay, Baron Geddes of Rolvenden and Mr John Adrian Watney, are the freeholders of the premises, holding the same in their capacity as Trustees of the Portman Family Settled Estates ("the Portman Trustees").
The respondents are also tenants of adjoining premises, 59 Great Cumberland Place ("the adjoining premises"), again having taken an assignment of a lease thereof on 29 May 1998. The freehold of the adjoining premises was said by the solicitor acting for the Portman Trustees, Mr Furber, to be vested in three individuals. However, the Land Registry entries for the adjoining premises (which, unlike the premises, are registered) records the proprietors as four individuals, only one of whom is included in the three identified by Mr Furber.
Both the premises and the adjoining premises are part of what is known as the Portman Estate in Central London. With the impact of Inheritance Tax (and its predecessors) since the end of the 19 th century, and of leasehold enfranchisement since 1967, the freeholds of some of the properties comprised in the Estate have inevitably been acquired by interests outside the Portman family. However, there is still a recognisable, if somewhat smaller and more fissiparous, collection of land and buildings, including the premises and adjoining premises, known as the Portman Estate ("the Estate").
The identity of the legal owner of the properties on the Estate is somewhat unclear. Mr Furber explained that different buildings on the Estate are informally allocated "for internal administrative purposes" to various funds in favour of different beneficiaries and "hence reference to primary funds and collateral funds", the name of the fund being "adopted simply to enable the better administration of the Portman Trust". He emphasised that there is only "one trust, although within that trust there are different legal owners of some of the properties comprised within that one trust". This, according to him, "has been done for internal administrative reasons".
That there is some confusion within the Estate and its advisers as to precisely who owns which properties on the Estate is confirmed by examination of the documents relating to the premises and adjoining premises, eg licences to assign, to carry out works etc. Even in the short period between the respondents acquiring the leases of the two properties and the service of the Counter-Notice, there seem to have been inconsistencies in the identification of the precise legal landlords in that documentation. However, one thing is clear and would have been clear to the respondents, namely that the two properties were part of the Portman Estate, managed from 38 Seymour Street, and represented by Farrers
Although Mr Furber's evidence could have been clearer, it would appear that there is one main trust, known variously as the Portman Family Estate, the Portman Family Settled Estates or the Portman Estate, of which the Portman Trustees are the trustees. It would also seem that there are various subsidiary trusts set up by the Portman Trustees, which sometimes have different trustees from the main trust. I should also mention that it appears to be the case that the legal titles to the various properties beneficially owned by these trusts are not always kept up to date.
All the properties owned by or on behalf of the various trusts are administered from 38 Seymour Street London W1, normally under the name "the Portman Estate", and, since 1998, the various trusts have employed Farrer & Co of Lincoln's Inn Fields, of whom Mr Furber is a partner, as their solicitors. One of the subsidiary trusts is the Portman Family Collateral Settlements ("PFCS") and that it is the Trustees of PFCS which appears to own the adjoining premises beneficially (even if its Trustees are not the registered proprietors).
On 26 September 2001, the respondents served a "Notice of Claim" pursuant to s42 of the 1993 Act in respect of the Premises. This notice ("the Notice of Claim") was addressed to "the Landlord, the Trustees of the Portman Family Settled Estates of 38 Seymour Street London W1 …". The Notice of Claim identified the respondents as the tenants of the premises and set out particulars of the lease granted on 14 July 1954. It also stated that Mr Mark Ackerman "has occupied the whole of these [premises] as his only or principal home since May 1998". The Notice of Claim proposed a new lease of the premises for a term expiring on 28 September 2091 at a rent of a peppercorn for a premium of £180,000. The Notice of Claim also stated that 7 September 2001 was the date "by which you must respond to this notice by giving a Counter-Notice under s45 of the 1993 Act".
The Notice of Claim was accompanied by a letter addressed to the Portman Trustees at 38 Seymour Street. It stated that the Notice of Claim was enclosed and that "a copy of the letter and enclosure" was being sent to Farrer & Co ("Farrers"). Such copies were presumably served on Farrers at their offices, 66 Lincoln's Inn Fields, London WC2.
At the same time as they gave the Notice of Claim in respect of the premises, the respondents also served a notice of claim under s42 in respect of the adjoining premises. This notice of claim was addressed to the PFCS Trustees. Both notices of claim were served at a time that the respondent was seeking "collective enfranchisement" of the premises and the adjoining premises under Chapter I of Part I of the 1993 Act. Their application for such collective enfranchisement was, at the time of service of the Notice of Claim, due to be heard in the Central London County Court in the next three or four months.
At least one of the reasons the respondents knew that they should address the notices of claim in respect of the two properties to the Portman Trustees and the PCFS Trustees respectively, was because they were the parties who held themselves out as the landlords of the two respective properties, and were treated as such by the respondents in the collective enfranchisement proceedings.
Because of the existence of the collective enfranchisement proceedings, time was extended for the service of both counter-notices pursuant to the 1993 Act. The respondents' collective enfranchisement application was dismissed by Judge Cowell on 23 rd January 2002. Accordingly, shortly thereafter, time was agreed to start running for the service of a counter-notice in respect of each of the properties.
On 28 March 2002, a "Landlord's Counter-Notice" addressed to the respondents was served in respect of the premises, with a short covering letter. It was stated to be "From: Trustees of the Portman Collateral Settlements, 38 Seymour Street London W1 … in connection with [the premises]". It is common ground that the Portman Collateral Settlements do not exist, and that this was meant to be, and the respondents say was understood to be, a reference to the PFCS.
The notice ("the Counter-Notice") was in a printed form and after the word "From" was a superscript "2", which referred to a notice in the margin: "Insert full name and address of the landlord". The Counter-Notice went on to say that:
"The landlord does not admit that the tenant had on the relevant date the right to acquire a new lease … for the following reasons … the landlord does not accept that the residence condition under the 1993 Act is satisfied. "
It also stated: "the landlord intends to make an application under section 47(1) of the Act on the grounds the he or she intends to redevelop …". The Counter-Notice further stated that notices to be served on the landlord under the 1993 Act could be served on Farrers. The Counter-Notice was signed by Farrers. A virtually identical counter-notice in respect of the adjoining premises, also purporting to be from the PFCS Trustees, was served under cover of the same letter.
On 18 April 2002, the respondents' solicitors, Wallace and Partners ("Wallaces") wrote to Farrers, saying that they understood that the freehold of the premises "was vested in the Trustees of the Portman Family Settled Estates" ie the Portman Trustees, the appellants, rather than the PFCS Trustees. Farrers replied the following day confirming this understanding and stating that "the counter-notices were mistaken". The appellants then issued the instant proceedings in the Central London County Court, seeking a determination of whether the respondents were entitled to a new lease of the premises under s39 of the 1993 Act.
In order to decide whether or not the Counter-Notice is valid, it is necessary to explain the statutory background. Chapter II of Part I of the 1993 Act gives to a...
To continue reading
Request your trial
-
(1) Sackville UK Property Select II (GP) No. 1 Ltd v (1) Robertson Taylor Insurance Brokers Ltd
...served by Robertson and that the name of Integro was a mistake. 55 Mr. Falkowski relied heavily on the decision of the Court of Appeal in Lay v Ackerman [2004] EWCA Civ 184; [2005] 1 EGLR 139. That case concerned the validity of a counter notice served by a landlord under section 45 of the......
-
Vanquish Properties (UK) Ltd Partnership v Brook Street (UK) Ltd
...defective notice is merely a scrap paper with no effect. 38 Mr Warwick QC placed great emphasis on the decision of the Court of Appeal in Lay v Ackerman [2004] EWCA Civ 184. He drew attention to three features of the case which he said were of importance: i) It is the latest case showing th......
-
The Prudential Assurance Company Ltd v Exel Uk Ltd and Another
...may have had to serve the Notice, unless it was good on its face, in the sense explained, it will not be a valid notice. 141 125. In Lay v. Ackerman [2005] 1 EGLR 139, tenants served a notice on the landlords, PFCS Trustees, seeking a new extended lease of premises under the Leasehold Refor......
-
Ben Cleuch Estates Ltd v Scottish Enterprise
...Direct Limited [1999] L & TR 102 per Peter Gibson LJ at 115; Speedwell Estates Ltd v Dalziel [2002] HLR 43 813; and Lay v Ackerman [2004] L & TR 29 per Neuberger LJ at paragraphs 37 to 40 and 62, and Arden LJ at paragraph 91. [55] Mr Martin accepted from Muir Construction at 833J and 834A, ......