A collective enfranchisement notice in respect of a Muswell Hill property has been declared invalid after the applicants failed to include the attic as a flat.
That error led them to leave the name and address of the leaseholder of the attic off the notice of enfranchisement. Now the Court of Appeal has upheld a ruling that, as a result, the notice was defective and invalid under section 13 of the Leasehold Reform, Housing and Urban Development Act 1993.
Daughter and father Gurmeet and Malkit Natt, leaseholders respectively of flats 1 and 3 of 19 Coniston Road, Muswell Hill, had claimed that the requirement to give the names of all qualifying tenants under section 13(3)(e) was directory rather than mandatory.
But the Chancellor of the High Court dismissed their appeal and ruled that the legislative intent was clear that all qualifying tenants must be identified in the notice.
The Natts had initially argued before Judge Dight at the Central London County Court that the attic was not a flat, so they were not required to include on the notice the name of its leaseholder Sobia Ali, daughter of freeholders Zulfiqar Ali Osman and Shahid Ali.
They claimed that it was not a flat for the purposes of the 1993 Act because the only staircase giving access to Flat 4 had been constructed within Flat 3 as a trespass.
However, Judge Dight ruled that the staircase did not fall within the demise of Flat 3, and said that Flat 4 was configured as a flat and had been used that way for some time.
The Zatts did not appeal the finding against them on that point, but challenged Judge Dight’s finding that the omission on the notice rendered it invalid.
However, the chancellor said: “The statutory scheme in the 1993 Act, on its proper interpretation, points clearly in favour of the invalidity of the notice by virtue of the non-compliance with section 13(3)(e) in failing to identify all the qualifying tenants and to state their addresses in the property.
“Those matters go to the very heart of the right to collective enfranchisement since the information is intended to disclose on the face of the section 13 notice the number of qualifying tenants in the premises (section 3(1)(b)), whether the total number of flats held by the qualifying tenants is not less than two-thirds of the total number of flats in the premises (section 3(1)(c)) and whether the section 13 notice has been given by qualifying tenants of not less than half of the number of flats contained in the premises (section 13(2)(b)).”
He added that Parliament specifically provided in paragraph 15 of schedule 3 to the 1993 Act for the section 13 notice not to be invalidated by certain inaccuracies and for the notice to be capable of amendment in certain circumstances.
“The assumption must be that parliament intended other errors in the section 13 notice to render it invalid,” he said.
He acknowledged the “powerful” point that the qualifying tenants serving a section 13 notice might not always be in a position to know who all the qualifying tenants are, but did not consider that this outweighed the “cumulative indicators of the legislative intention”.
There is no restriction on the Zatts serving a fresh notice under section 13.
Natt and anr v Osman and anr Court of Appeal (The Chancellor of the High Court, Patten and Gloster LJJ) 26 November 2014
Piers Harrison (instructed by Layzells Solicitors) for the appellants
Mr Paul Letman (instructed by Anthony Gold Solicitors) for the respondents
