Right to manage – Commonhold and Leasehold Reform Act 2002 – Qualifying premises – Premises partly converted into residential units– Application for right to manage under section 84 of 2002 Act – Whether qualifying tenants occupying two-thirds of flats in premises as required by section 72(1)(c) – Leasehold valuation tribunal finding uncompleted units counting as flats – Whether each a separate set of premises constructed or adapted for use for purpose of a dwelling within section 112(1) – Appeal allowed
The appellant was a company that had been formed for the purpose of an application by qualifying tenants, under section 84 of the Commonhold and Leasehold Reform Act 2002, to exercise the right to manage the building in which their flats were located. The building was a listed building that had formerly been used for educational purposes and as a residential boys’ home. Parts of it had been converted into units of residential accommodation and other parts were in the course of being converted.
The leasehold valuation tribunal (LVT) dismissed the application on the ground that only eight out of 15 flats in the building were occupied by qualifying tenants and that, accordingly, the section 72(1)(c) requirement that such tenants should occupy no less than two-thirds of the flats contained in the premises was not met. It found that some unoccupied parts of the building were being developed as residences and that although the development appeared to have been suspended for some time, each of the areas was clearly defined with its own individual access door or doors and was intended to be occupied for residential purposes. It reached that conclusion despite finding that the plans for one such unit indicated some integration with the rest of the building and that a second might have overlap with another flat.
On appeal, the appellant disputed the LVT’s findings in respect of to three “flats” and argued that if those were left out of account, the section 72(1)(c) requirement would be met.
Decision: The appeal was allowed.
The LVT had failed to refer to the definition of “flat” in section 112(1) of the 2002 Act or to consider whether each of the units in question constituted a separate set of premises or had been constructed or adapted for use for the purposes of a dwelling within the meaning of that provision. If a unit was integrated with the rest of the building or overlaped with another “flat”, that might suggest that none of them was a separate set of premises. Moreover, although the LVT had taken the view that each of the unoccupied areas was intended to be occupied for residential purposes, it had not considered whether the works had progressed to a stage at which each could be said to be constructed or adapted for use as a dwelling. Its failure to address the vital question of whether the unoccupied parts were indeed flats for the purpose of the right-to-manage provisions vitiated its decision. Further, the description of the building and its parts in the LVT’s decision was so nugatory that it was impossible to form a view as to whether each of the parts might be said to satisfy the definition of a flat. Such cases were fact-dependent and it was essential for the LVT to describe the building and its features with such a degree of particularity as enabled its conclusions to be understood. The LVT, to which the case was remitted, would need to consider the question of whether each of the areas was indeed a flat and give reasons for its conclusions by reference to an adequate description of the building and its parts.
The appeal was conducted by way of written representations.
Sally Dobson, barrister
