Maurice and Others v Hollow-Ware Products Ltd
| Jurisdiction | England & Wales |
| Judge | MR DONALDSON QC |
| Judgment Date | 15 March 2005 |
| Neutral Citation | [2005] EWHC 815 (Ch) |
| Date | 15 March 2005 |
| Court | Chancery Division |
| Docket Number | TLC 740/04 |
[2005] EWHC 815 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Donaldson QC
TLC 740/04
MR KS MUNRO (Instructed by Taylor Wessing) appeared on behalf of the CLAIMANT
MR AE RADEVSKY (Instructed by Teacher Stern Selby) appeared on behalf of the DEFENDANT
The claimants in the present action are the trustees of the St Bartholomew's and Royal London Charitable Foundation, and are the freehold owners of a building consisting of a block of 28 flats at 64 to 82 Murdel(?) Street, London E1.
The claimants are, and have been since 3 October 1944, the lessee of the entire building, including the flats, under a 80-year lease originally granted in 1937 and hence expiring in about 12 years' time.
The defendants have served notices under the Leasehold Reform Housing and Urban Development Act 1993 requiring the grant of new long leases under the Act in respect of all 28 flats. Such new leases would run for 90 years beyond the existing unexpired term at a peppercorn rent.
The claimants originally disputed the entitlement of the defendants to the grant of the new leases on three grounds. Those have now been reduced to one, which is essentially whether the defendants are the qualifying tenant of each flat, "qualifying tenant" being a term of art which is defined in the statute.
Section 39(1) of the 1993 Act confers on the qualifying tenant the right exercisable in accordance with the provisions of the statute to acquire a new lease of the flat on payment of a premium determined in accordance with the provisions of the Act. One of these is that the tenant should have been a qualifying tenant for at least the last two years.
Section 39 incorporates section 5(1) which provides:
"Subject to the following provisions of this section, a person is a qualifying tenant of a flat… if he is tenant of the flat under a long lease."
"A long lease" is defined in section 7 to which reference is also made in section 39 as meaning (see section 7(1)(a)) "a lease granted for a term of years exceeding 21 years".
It is clear that the defendants satisfy these criteria of holding under a long lease and having done so for at least the last two years.
There is the extra fact in the present case on which the claimants seek to found that the defendants are tenants of more than one flat, and that they are tenants of more than one flat, and indeed of all the flats, under one lease. That situation is in fact covered in, first of all, section 39(4) which provides that:
"A person can be… the qualifying tenant of each of two or more flats at the same time whether he is tenant of those flats under one lease or under two or more separate leases."
The claimant also draws attention to the fact that not only is the lease under which the defendants hold a lease of one or more flats, indeed of all the flats, but of the building as a whole, that is to say it extends beyond the flats to the common parts and the structure. This, again, is covered by the 1993 Act in section 101, subsection 3 which says that:
"Any reference to the lease held by a qualifying tenant of a flat is a reference to a lease held by him under which the demised premises consist of or include the flat (whether with or without one or more other flats)."
Accordingly, the defendants submit that all the requirements of a qualifying tenant are established in relation to all the flats in the present case, notwithstanding the additional matters raised by the claimants and to which I have just drawn attention.
The claimants' submission is targeted on the fact that currently the entire building is held on one lease, whereas after the grant of new leases the result would be that there would be 28 leases of the flats, and, in addition, the existing lease insofar as it applied to the remainder of the property after the subtraction of the flats from the totality of the building.
I was taken by counsel for the claimant first of all to section 56(1)(a). This provides that: "The new lease…"—that is to say the new lease in respect of each flat:
"…to be granted to a tenant shall be a lease on the same terms as those of the existing lease as they apply on the relevant date, but with such modifications as may be required or appropriate to take...
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Howard de Walden Estates Ltd v Aggio
...a re-grant, and it shall accordingly be disregarded for the purposes of the preceding provisions of this paragraph.” Maurice v Hollow-Ware Products Ltd 23 The point of law raised by the present appeals was considered by Mr Donaldson QC sitting as a deputy judge of the Chancery Division in......
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Howard de Walden Estates Ltd v Aggio
...of the relevant flat. These conclusions followed a decision of Mr David Donaldson QC, sitting as a deputy High Court judge in Maurice v Hollow-Ware Products Ltd [2005] 2 EGLR 71. The freeholders' appeals were heard together by the Court of Appeal [2007] EWCA Civ 499, [2008] Ch 26, who al......