Triplerose Ltd v Ninety Broomfield Road RTM Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Patten LJ,Sir David Keene |
| Judgment Date | 27 March 2015 |
| Neutral Citation | [2015] EWCA Civ 282 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2014/0881 |
| Date | 27 March 2015 |
[2015] EWCA Civ 282
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (LANDS CHAMBER)
LRX/11/2013
LRX/92/2013
LRX/99/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lady Justice Gloster
and
Sir David Keene
Case No: C3/2014/0881
First Appeal
Second Appeal
Third Appeal
Mr Philip Rainey QC and Mr Justin Bates (instructed by Scott Cohen Solicitors) for the Appellants
Mr Andrew Drane (appeared in person) for the 1 st Respondent
Mr Steven Woolf (instructed by Paul Robinson Solicitors) for the 2 nd Respondent
Mr Phil Perry (appeared in person) for the 3 rd Respondent
Hearing dates: Thursday 4 th December 2014
Introduction
The Commonhold and Leasehold Reform Act 2002 ("the Act") created a new right for the appropriate proportion of qualifying leaseholders of flats in a self-contained building or self-contained part of the building to establish a "right to manage" company ("an RTM company") which, in general terms, can exercise the management functions under the leases which are vested in the landlord or other manager. 1
The question which arises in these appeals is whether an RTM company can acquire the management of more than one set of premises as defined in section 72 of the Act. In two of the cases the subject of this appeal, Ninety Broomfield Road RTM Co Ltd v Triplerose Ltd ("Ninety Broomfield Road"); Garner Court RTM Company Ltd v Freehold Managers (Nominees) Ltd) (" Garner Court"), the Leasehold Valuation Tribunal ("the LVT") 2 held that an RTM company could not do so. In the third, Holybrook RTM Co Ltd v Proxima GR Properties Ltd (" Holybrook"), the case was transferred into the Upper Tribunal (Lands Chamber) ("the Upper Tribunal") for determination by that Tribunal in its first instance capacity. All three cases were dealt with together at a hearing convened before the Upper Tribunal for that purpose on 17 October 2013 3.
The Upper Tribunal 4 decided 5 that an RTM company could acquire the management of more than one set of premises so long as all the qualifying conditions were met in relation to each set of premises respectively; neither the decision nor its reasoning imported any requirement that confined this conclusion to premises belonging to the same freeholder or freeholders or to the same estate or geographical area. Accordingly the Upper Tribunal allowed the appeals in relation to Ninety Broomfield Road and Garner Court and remitted the application in Holybrook to the First-Tier Tribunal (Property Chamber) to determine whether the RTM company, Holybrook RTM Company Ltd ("Holybrook RTM") was entitled to exercise the right to manage.
The three landlords in the above-named cases appeal to this court against the Upper Tribunal's decision with the permission of the Upper Tribunal.
Factual background
Ninety Broomfield Road
Triplerose Ltd, the appellant landlord in the first case ("Triplerose"), is the freehold owner of land known as 90 Broomfield Road, Chelmsford, CM1 1SS registered under a single title. There are two purpose-built, structurally detached, blocks of flats on the land (Building A, flats 1–6 Farthing Court and Building B, flats 7–15 Farthing Court), together with parking spaces, garden areas and a cycle and bin store. There is a single electricity and water supply for communal services in both buildings. A single access road from Broomfield Road on the east side serves the whole site and passes through the building comprising flats 1–6 Farthing Court via an underpass at ground level.
The lease of each flat in Farthing Court states that the intention is that each of the 15 units should be demised in identical terms with a view to each of the tenants being able to enforce restrictions contained in such leases against each other. Service charges are levied on an estate basis and calculated on the basis of a percentage which relates to all 15 flats. Triplerose, as landlord, manages the site as a single entity. All flats are let to qualifying tenants as defined in section 75 of the Act.
The objects for which the respondent RTM company in the first appeal, Ninety Broomfield Road RTM Co Ltd ("Ninety Broomfield Road RTM") was established were "to acquire and exercise in accordance with the 2002 Act the right to manage the Premises". The Premises are defined as "the freehold or leasehold land and buildings known as 90 Broomfield Road, Chelmsford, Essex CM1 1 SS registered under the title number EX722958 and comprised of two buildings, namely building A (flats 1 to 6 Farthing Court…) and building B (flats 7 to 15 Farthing Court…) and appurtenant property."
On 17 May 2012 Ninety Broomfield Road RTM served on Triplerose two separate notices of claim under section 79 of the Act to acquire the right to manage, one in respect of Building A, the other in respect of Building B. The notice for Building A stated that the premises were ones to which the relevant provisions of the Act applied as they consisted of "a structurally detached, self contained building containing a total of six flats…" The notice for block B also stated that it related to premises which consisted of "a structurally detached, self contained building with appurtenant property containing a total of nine flats…" At that date, five of the six leaseholders in Building A were members of Ninety Broomfield Road RTM, as were seven of the nine leaseholders in Building B.
Triplerose served counter-notices denying that Ninety Broomfield Road RTM was entitled to acquire the right to manage.
Garner Court
The property the subject of the second appeal, Garner Court, consists of two blocks of flats (block 1, flats 1–48 and block 2, flats 49–68) and a communal car park situate on property known as 122, 124 and 126 Dock Road, Tilbury, Essex RM18 7BJ. The property is registered under three separate titles: the first relating to block 1, the second to block 2 and the third to the car park.
The car parking spaces are not demised to individual flats within block 1 or block 2. All lessees have the same rights to use the car park and to use utility storage facilities including the bin facilities located on the edges of the car park. The individual leases of the flats permit the occupier of any flat within "the block" to have equal rights of passage, use, and/or otherwise in relation to any of the communal areas, or as against any other leaseholder within "the block". "The block" for the proposes of the Lease is defined as being:
" The two blocks of flats known as Garner Court, Dunlop Road, Tilbury, Essex registered at HM Land Registry with title number EX693801, EX710799 and EX730543 and shall include all additions, amendments and alterations made thereto during the term including the car parking spaces and access thereto".
Service charges are levied to leaseholders without differentiation between the two blocks and the properties are managed as a single unit.
The objects for which the respondent RTM company in the second appeal, Garner Court RTM Co Ltd ("Garner Court RTM"), was incorporated were to "acquire and exercise in accordance with the 2002 Act the right to manage the Premises." The Premises are defined as blocks 1 and 2 and appurtenant property.
On 12 December 2012 Garner Court RTM served two separate notices of claim on the freehold owner, the appellant in the second appeal, Freehold Managers (Nominees) Ltd ("Freehold Managers") under section 79 of the Act to acquire the right to manage, one in respect of block 1, which claimed the right to manage the block alone, and one in respect of block 2, which claimed the right to manage both the block and the appurtenant property. As at that date, 26 of the 48 qualifying tenants in block 1 were members of Garner Court RTM and 11 of the 20 qualifying tenants in block 2 were members.
Freehold Managers served counter-notices denying that that Garner Court RTM was entitled to acquire the right to manage.
Holybrook Estate
The property, the subject of the third appeal, consists of a residential estate in Reading, Berkshire containing seven self-contained blocks of residential flats (blocks A-G) comprising 200 flats. In addition to the 200 flats, the estate has 20 freehold houses which were not included in the claims made by the relevant RTM company, Holybrook RTM. There are two freehold titles under which the seven blocks were registered. The freehold owner was the appellant in the third appeal, Proxima GR Properties Ltd ("Proxima").
Each block has its own service charge budget. However Holybrook RTM claimed before the Upper Tribunal that the whole estate had been managed as one entity by OM Property Management since its construction.
The objects for which Holybrook RTM was incorporated were to "acquire and exercise in accordance with the 2002 Act the right to manage the Premises." The Premises were defined as blocks A to G on the estate.
Individual claim notices were served by Holybrook RTM on Proxima in respect of each block, but all contained the same information and in particular no indication was given of which lessees belonged to which block. That was clear from the sample claim notice in respect of block D, provided to the Upper Tribunal 6 and which was before this court, which included the names and particulars of a total of 146 participating lessees in all the blocks, and not exclusively...
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