Leasehold Reform – Housing and Urban Development Act 1993 – Lease extension – Time limits – Appellant giving notice claiming lease extension under 1993 Act – Respondent landlords giving counternotice – Appellant applying to FTT to determine disputed terms of acquisition – Whether application made within statutory time limit of six months from counternotice – Whether application “made” when posted or received – Appeal allowed
The appellant, who was the long leaseholder of a flat, gave a notice to the respondent landlords under section 42 of the Leasehold Reform. Housing and Urban Development Act 1993 to acquire a new extended lease pursuant to Chapter II of Part I of the 1993 Act. The respondents gave a counternotice under section 45. The appellant subsequently made an application to the first-tier tribunal (FTT), under section 48, to determine the disputed terms of acquisition.
The FTT dealt with the application on the papers and rejected it on the ground that it had not been made within six months of the date when the counternotice was given, as required by section 48(2). Although the appellant claimed that he had sent his application by first-class post a few days before the time limit expired, the only copy of the application held by the FTT was stamped as having been received on a date more than two weeks after that deadline.
The FTT held that, in the absence of any evidence from the appellant, such as a certificate of posting, to show that the application had been posted within the prescribed time limit, and where the application had been received after the expiry of that limit, the application was out of time and the FTT had no jurisdiction to determine it.
The appellant appealed. He contended that: (i) the relevant date, for the purposes of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, was the date when the application was posted; and (ii) the FTT should not have rejected his assertion as to the date of posting without giving him the opportunity to file a formal witness statement and, if necessary, be cross-examined on its contents.
Held: The appeal was allowed.
(1) By section 48(2) of the 1993 Act, the application had to be “made” within six months of the counternotice. The word “made” in s 48(2) looked to a unilateral act by the applicant. The applicant would make the application by starting proceedings before the FTT. Under r 26(1) of the 2013 Rules, proceedings could be “started” in two ways, by either “sending” or “delivering” a notice of application to the FTT. Either of those acts was effective to start the proceedings.
There was nothing in the rules that prescribed the use of recorded delivery or required any particular form of proof of posting. The posting of a correctly addressed, and sufficiently stamped, notice of application to the FTT was therefore sufficient to start the proceedings. It followed that the relevant date was the date of posting. That was so even if the application notice was delayed in the post or did not arrive. Provided it was posted to the FTT, proceedings had been started.
(2) There were a number of ways in which the date of posting of a document could be established. A certificate of posting was the best but not the only method. If the appellant’s statement as to the date of posting were accepted, it would follow that the application was started in time. While it was open to the FTT to test that statement by requiring the appellant to provide a witness statement and attend a hearing for cross-examination, it could not simply to reject the statement and assert that it was not posted in time.
(3) Accordingly, the FTT’s ruling had to be set aside and the matter remitted to it for a determination on jurisdiction. If the respondents accepted that the appellant had posted the application on the stated date, then the FTT would have jurisdiction and the application could proceed on its merits. If, on the other hand, the respondents wished to test the appellant’s statement, there would have to be a hearing at which he could be cross-examined and the FTT would have to determine whether, on the balance of probabilities, it had been proved that the application notice was posted before the expiry of the time limit.
James Fieldsend (instructed by Barber Young Burton & Rind) made written representations for the appellant; the respondent made no representations.
Sally Dobson, barrister
Click here to read a transcript of Salehabady v Trustees of the Eyre Estate.