Leasehold enfranchisement – Lease extension – Deceased landlord – Landlord leaving property to appellant son in will – No grant of probate applied for or made– Respondent tenant seeking to exercise right to new lease under Chapter II of Leasehold Reform, Housing and Urban Development Act 1993 – Vesting order granted under section 50 on ground that landlord could not be found or his identity ascertained within section 50(1)(b) – Whether section 50 applying – Whether respondent required to serve section 42 notice – Appeal allowed
The respondent was the long leaseholder of a residential property, the freehold of which was owned by the deceased until her death in 1997. The appellant was the deceased´s son and one of the executors and trustees under her will, which she left her estate, including her freehold interest in the property, to the appellant for life and thereafter to her grandchildren. The appellant and his co-executors did not, however, apply for a grant of probate.
Twelve years later, the respondent sought to exercise his right to acquire a new long lease of the property pursuant to Chapter II of the Leasehold, Reform, Housing and Urban Development Act 1993. Rather than serving notice under section 42 of the Act, he applied to the court for the grant of a new lease by means of a vesting order under section 50 on the ground that the landlord could not be found or her identity ascertained within the meaning of section 50(1)(b). The claim form named as defendants the deceased´s personal representatives and gave the appellant´s correct address as the place for service of the proceedings.
The deputy district judge held that the appellant was not entitled to defend the proceedings since he had not been properly constituted as a personal representative of the deceased. He held that the death of the deceased, together with the absence of any grant of probate in respect of her will, meant that the landlord of the property was unknown, such that section 50 applied and the respondent was entitled to a vesting order.
The appellant appealed. He contended that: (i) section 50 did not apply where an identified landlord was known to have died; (ii) the statutory criteria for a section 50 vesting order had not been satisfied since the identities and addresses of the deceased´s personal representatives were readily ascertainable from the documents and correspondence available to the respondent; and (iii) the tenant of a deceased landlord could serve a section 42 notice by using the machinery set out in section 18(1) of the Law of Property (Miscellaneous Provisions) Act 1994 and CPR 19.8 for service on the personal representatives of a named deceased at the deceased´s last-known address.
Held: The appeal was allowed.
It did not follow from the death of a landlord that the successor in title as landlord could not be identified or found within the meaning of section 50(1)(b). Title would devolve in one of the usual ways on the deceased landlord´s personal representatives. So long as they could be identified and found, the condition in section 50(1)(b) could not be satisfied. Where real property has been bequeathed under a will, the executor´s title to it derived from the will, not from the grant of probate, and the testator’s property vested in that executor from the moment of the his or her death. The court could receive evidence of the existence of a will or its contents without the need for a grant of probate.
In the instant case, the production before the court of the deceased’s will was sufficient evidence of the appellant’s title and should have been accepted as such. On the basis of that evidence, the deputy district judge should have concluded that the necessary conditions for the operation of section 50 had not been made out.
Moreover, the entire structure of section 50 was predicated on the tenant’s inability to serve a notice under section 42. It followed that a section 42 notice could be served, there was no room for the operation of section 50. The respondent, who had the correct details for the executors, could have served a section 42 notice on them in the usual way. Alternatively, he could have used the method of service contained in section 18(1) of the 1994 Act. The fact that section 18(1) was a “saving” provision of general application did not alter its applicability or relevance to the circumstances. Accordingly, there was no lacuna in the 1993 Act, relating to the service of notices on personal representatives, that section 50 was intended to fill.
Once proceedings were in contemplation, subject to the filing of notices and counternotices, the appropriate defendants would have been the executors. However, in the instant case, the appropriate course would have been for the deputy district judge, on the respondent’s application, to appoint the appellant to represent the estate of the deceased pursuant to CPR 19.8(2)(b).
Samuel Laughton (instructed by Magrath LLP) appeared for the appellant; Lloyd Sefton-Smith (instructed by Bryan O´Connor & Co) appeared for the respondent.
Sally Dobson, barrister
