Landlord and tenant – Right to manage – Respondent seeking right to manage property – Mistake in name of applicant on form – First-tier Tribunal deciding as preliminary issue that application valid – Appellant appealing – Whether documents submitted with form being part of application – Appeal dismissed
The appellant was the registered freeholder proprietor of 20, Upper Wickham Lane, Welling, Kent. The respondent company was formed by four lessees of flats in the property for the purposes of exercising the right to manage the property pursuant to Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002. By a claim notice, the respondent gave notice to the appellant’s predecessor in title that it intended to acquire the right to manage the property, pursuant to section 79 of the 2002 Act. By a counter-notice dated 12 July 2018 and served the following day, the then freeholder asserted (pursuant to section 84(2)(b) of the 2002 Act) that the respondent was not entitled to acquire the right to manage. An application was made to the First-tier Tribunal (FTT) pursuant to section 84(3) of the 2002 Act.
The freeholder applied to the FTT to strike out the application on the basis that it was made by one of the lessees and not, as the statute required, by the respondent. The FTT determined, as a preliminary issue, that the application had been made by the respondent and that therefore the application was valid. The FTT concluded that the application form was only one element of the bundle that represented the application. Once the first page of that bundle was read, it was clear that the applicant was the respondent. The appellant appealed against that decision. The appeal was determined on the basis of the written submissions of the parties, neither of whom was legally represented.
Held: The appeal was dismissed.
(1) The application form stated: “This is the correct form to use if you want to ask the Tribunal for a determination that on the relevant date the Right to Manage company was entitled to acquire the Right to Manage the subject premises under the Commonhold and Leasehold Reform Act 2002. It is also the correct form to use in order to make one of the other types of application listed in Annex 1 to this form”. The form then provided boxes, in numbered sections, to be filled in. Section 9 was headed “Checklist” and provided tick boxes to indicate the enclosure of a copy of the respondent’s certificate of incorporation and articles of association, the details of the freeholder and any intermediate landlord and any manager of the premises if not already given on the form, and a cheque or postal order for the fee. There was a warning that the FTT would not process the application until those documents were provided. Supporting documents were required to be sent with the form: the respondent’s certificate of incorporation and articles of association, and the claim notice and counter-notice, formed part of the application itself.
(2) The layout and wording of the form might have given rise to some confusion. The initial wording was addressed to “you” and not to the RTM Company. The form could have said “This is the correct form for use by an RTM Company that wishes to ask the Tribunal for a determination… etc”. As it was, the reader might wonder who was “you”? And there were separate boxes for the applicant and its details in section 1 on the first page, and for the RTM Company and its details in box 4 on page 3. In the light of the layout and wording of the form, it was unsurprising that the lessee filled it in as he did. In the light of the ticking of the boxes and of the inclusion of the respondent’s documents pursuant to the instructions, there could be no doubt that it was an application by the respondent.
(3) The application required by the statute had been made and all the documents supplied. As with any formal document, the meaning of the respondent’s articles had to be determined objectively, by asking what the parties using those words in those circumstances must reasonably be understood to have meant. Where a document was ambiguous or reasonably capable of bearing more than one meaning, the court or tribunal required to interpret that document would give it the meaning which was more consistent with the parties’ presumed intention. If a document contained an obvious mistake, and it was clear what the parties must have intended, the document would be interpreted in accordance with that intention. Looking at the application form, including the accompanying documents that formed part of the application, it was clear that it was intended to be an application under section 84(3) of the 2002 Act, as the ticked box in annex 1 stated and as described in the opening words of the form. It might be said that there was an ambiguity as to whether the application was made by the respondent itself, as the statute required, or by its lessee, because the lessee put the wrong information in the first section of boxes. But it was perfectly clear that what was intended was an application under section 84(3) of the 2002 Act. Accordingly, it was right to resolve any ambiguity by giving effect to what anyone reading the form would understand that the respondent and the lessee intended, and to construe the form as an effective application under section 84(3) of the 2002 Act. The application was made by the respondent and the FTT’s proceedings could resume with the respondent continuing to be named as applicant: Avon Ground Rents Ltd v 51 Earls Court Square RTM Company Ltd [2016] UKUT 22 (LC); [2016] PLSCS 18 and Lough’s Property Management Ltd v Robert Court RTM Company Ltd [2019] UKUT 105 (LC); [2019] PLSCS 67considered.
Eileen O’Grady, barrister
Click here to read a transcript of Assethold Ltd v 20 Upper Wickham RTM Ltd
