Landlord and tenant – Right to manage – Claim notice – Appellant serving notice on respondent freeholder seeking right to manage property – Appellant failing to include one paragraph of notes required to be included in prescribed form – First-tier Tribunal holding claim notice invalid – Appellant appealing – Whether omission of particular paragraph fatal to validity of notice – Appeal allowed
The Commonhold and Leasehold Reform Act 2002 gave long lessees of a self-contained building the right to acquire, through a nominee RTM company, the right to manage their block on a no-fault basis. All the leaseholders had to do was to ensure that their RTM company was constituted in accordance with the requirements of the Act and serve the correct notices on the landlord.
The respondent was the freehold owner of 18 Langdale Road, Thornton Heath, in the London Borough of Croydon, a building comprising two flats, each held on a long lease; the two leaseholders were qualifying tenants under the 2002 Act and members of the appellant RTM company. In May 2020, the appellant served a notice under section 79 of the 2002 Act seeking to acquire the right to manage the property.
Section 80 set out the requirements for the contents of a claim notice. Under section 80(8) and (9), the notice had to include such other particulars as required by the relevant regulations. In the present case, the Right to Manage (Prescribed Particulars and Forms) (England) Regulations 2010 required prescribed notes to be given.
Note 1 set out who had to be served with the claim notice and included the words: “But notice need not be given to such a person if he cannot be found, or if his identity cannot be ascertained. If that means that there is no-one to whom the notice can be given, the company may apply to a leasehold valuation tribunal for an order that the company is to acquire the right to manage the premises… ”
The appellant omitted those words from its claim notice. The First-tier Tribunal (FTT) held that the claim notice was invalid for that reason. The appellant appealed. The appeal was determined on written representations.
Held: The appeal was allowed.
(1) In Natt v Osman [2014] EWCA Civ 1520; [2015] EGLR 11, the Court of Appeal considered the effect of failure to comply with procedural requirements. The court distinguished: (i) those cases in which the decision of a public body was challenged, often involving administrative or public law and judicial review, or which concern procedural requirements for challenging a decision by litigation or some other process; and (ii) those cases in which the statute conferred a property or similar right on a private person and the issue was whether non-compliance with the statutory requirement precluded that person from acquiring the right in question.
The acquisition of the right to manage fell into the second category In Natt, the court held that the slightest defect in a claim notice did not automatically render it invalid. It was still necessary to determine what were the strict requirements of the statute and decide whether parliament intended that the defect complained of should invalidate the notice.
(2) Where the notice, or the information missing from it, was of critical importance in the context of the scheme, the non-compliance with the statute would generally result in the invalidity of the notice. Where, on the other hand, the information missing from the statutory notice was of secondary importance or merely ancillary, the notice might be held to have been valid. Where the information was required by subordinate legislation, it was likely to be viewed as of secondary importance. Further, if the server of the notice might immediately serve another one if the impugned notice was invalid, that was a pointer towards invalidity: Elim Court RTM Co Ltd v Avon Freeholds Ltd [2017] EWCA Civ 89; [2017] PLSCS 46 applied.
It was not permitted to consider whether the defect actually caused any prejudice to the recipient of the notice. In considering the question of validity, although the court should not inquire into the question whether prejudice had been caused on the particular facts of the actual case, that did not mean that prejudice in a generic sense was irrelevant. Therefore, the tribunal would pay no regard to the fact that the respondent was not prejudiced or misled in any way.
(3) In the present case, it was difficult to see how the omission from the claim notice of the particular paragraph from one of the notes in the prescribed form could be fatal. The information would rarely be needed, and its omission from the claim notice was unlikely to cause any prejudice to a landlord upon whom a claim notice had been served. The notes, which were otherwise accurately reproduced, referred the recipient of the notice to the relevant provisions of the 2002 Act and, once referred to the Act, the recipient would easily find section 85 which set out the law where the person to whom notice was to be given could not be traced. Further, the inclusion of the notes was required by the statute, but there was no express statutory requirement that the notice should contain reference to the provisions for missing landlords. The inclusion of the information was purely a requirement of secondary legislation.
(4) The FTT had relied upon the Upper Tribunal’s (UT’s) decision in Mill House RTM Co Ltd v Triplerose Ltd [2016] UKUT 80 (LC); [2017] PLSCS 68, where a notice to lessees inviting them to participate in the acquisition of the right to manage, under section 78 of the 2002 Act, was held to be invalidated by the omission of all the notes from the prescribed form.
The notes as a whole were important in the scheme and were omitted entirely in Mill House. However, in that case, the UT noted that it was not appropriate to seek to assess the significance of individual pieces of information contained in the notes. Parliament intended that a notice should be in the prescribed form, including all of the notes, and it was not for the tribunal to categorise some as more important than others. It might be arguable that the omission of a particular note which had no possible application to the circumstances of an individual case might not be fatal.
The present appeal fell squarely within that statement, and the omission of the paragraph relating to missing landlords did not invalidate the claim notice. Accordingly, the FTT’s decision would be set aside. The claim notice was valid and the appellant had acquired the right to manage on the relevant date.
Justin Bates (instructed by Scott Cohen Ltd) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of 18 Langdale Road RTM Co Ltd v Assethold Ltd
