Right to manage – Commonhold and Leasehold Reform Act 2002 – Claim notice – Validity – Notice of claim to acquire right to manage block of flats – Claim notice identifying premises by reference to address of block and specifying that claim extending to appurtenant property within area edged red on a plan – That area containing yard to which right to manage not applicable – Whether error invalidating claim notice – Sections 80 and 81 of 2002 Act – Appeal dismissed
The respondent was a company incorporated by lessees of flats in a block in Harrow for the purpose of acquiring the right to manage the block under Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002. A notice claiming the right to manage was served on the appellant landlord in February 2014, pursuant to section 80 of the 2002 Act. The notice identified the relevant premises by reference to the name and address of the block and “appurtenant property (within the area edged in red on [the] freehold plan…)”.
The appellant served a counternotice in which it disputed the validity of the claim notice. In particular, it asserted that the claim was invalidated by the inclusion in the claim of a small yard which did not fall within the statutory definition of “premises” and over which the respondent was therefore not entitled to acquire the right to manage.
The respondent applied to the first-tier tribunal (FTT) for a determination that it was entitled to acquire the right to manage. Allowing the application, the FTT held that the claim notice had correctly identified the premises, by reference to the relevant Land Registry plan, and that, so far as it mistakenly included an area of land which was not appurtenant to the premises, that was an inaccuracy of the kind that could be excused under section 81(1) of the 2002 Act.
The appellant appealed, contending that the error in the notice meant that the respondent had failed to comply with the requirement in section 80(2) to “specify the premises”.
Held: The appeal was dismissed.
Since this was a case involving legislation that conferred a property or similar right on a private person, the correct approach was to interpret the claim notice to see whether it complied with the strict requirements of the statute, failing which, it would be invalid: Osman v Natt [2014] EWCA Civ 1520; [2015] 1 WLR 1536; [2015] EGLR 11 applied.
It was essential that the parties knew the “self-contained building” that was the subject matter of the claim to the right to manage. However, it was not necessary for the claim notice to state that there was any property appurtenant to the building or part of the building over which the right to manage was claimed, and, if reference was made to appurtenant property, it was not obligatory to state what that property consisted of. Given the wide range of rights that potentially fell within the definition of “appurtenances”, to make it an absolute requirement that the claim notice set out all “appurtenant property” would be setting intending claimants up to fail: Gala Unity Ltd v Ariadne Road RTM Co Ltd [2011] UKUT 425 (LC); [2012] 1 EGLR 99; [2012] 5 EG 84 and Pineview Ltd v 83 Crampton Street RTM Co Ltd [2013] UKUT 598 (LC); [2014] 1 EGLR 65; [2014] EGILR 12 applied.
Where a claim notice clearly included, within its statement of the premises over which the right to manage was claimed, land which could not form part of the claim, that was not an “inaccuracy in the particulars required by or by virtue of section 80” of the kind that could be excused under section 81(1). Although section 81(1) could save a claim notice from invalidity in the event of inaccuracy in complying with any of the requirements laid down by section 80, and was not confined to those matters expressly described as “particulars” in section 80 itself, the concept of “inaccuracy” was nonetheless intended to be a relatively narrow one. Section 81(1) could not save a claim notice where the claim wrongly included land which could not be the subject of the right to manage: Assethold Ltd v 15 Yonge Park RTM Co Ltd [2011] UKUT 379 (LC); [2011] PLSCS 251, Assethold Ltd v 14 Stansfield Road RTM Co Ltd [2012] UKUT 262 (LC); [2012] PLSCS 205 and Malekshad v Howard de Walden Estates Ltd (No 2) [2003] EWHC 3106 (Ch); [2004] 1 WLR 862; [2003] PLSCS 293 applied; Moskovitz v 75 Worple Road RTM Co Ltd [2010] UKUT 393 (LC); [2011] 1 EGLR 95 not followed.
However, the claim notice in the instant case did not contain an error of that magnitude. The claim notice properly specified the “self-contained building” in respect of which the respondent claimed to acquire the right to manage. It also indicated, although it did not need to, that there was appurtenant property. The reference to the freehold plan was unnecessary to the claim and did not purport to define the area over which the right to manage was to be exercised; instead, it was merely intended to describe the location of the claim. The use of the word “within” was significant; at most, the claim notice was indicating that all the property referred to in the claim notice could be found inside the red edging on the plan. The claim notice, read as a whole, could not sensibly be construed as a claim to manage the whole of the property contained within the area edged red on the plan annexed to the title. It followed that the claim notice correctly specified the premises which were the subject matter of the claim and complied with section 80(2) of the 2002 Act.
Anthony Radevsky (instructed by Brethertons LLP) appeared for the appellant; Margarita Madjirska-Mossop, of Mayfield Law Ltd, appeared for the respondent.
Sally Dobson, barrister
