Landlord and Tenant Act 1987 — Section 12 purchase notice — Jurisdiction of leasehold valuation tribunal — Whether terms of purchase notice limited powers of leasehold valuation tribunal
A purchase notice had been served on the
respondent landlord under section 12 of the Landlord and Tenant Act 1987,
requiring the respondent to dispose of the interest he had acquired in a
building containing a number of flats. The applicant nominee purchaser referred
the matter to the leasehold valuation tribunal. The parties to the application
accepted that the purchase notice was valid. At the hearing of a preliminary
issue, the respondent contended that the tribunal had the power to determine
any matters in dispute; the applicant contended that the terms of the purchase
notice limited the tribunal’s powers to those within the scope of section
12(3)(a), which covered only the issue of the original disposal relating to
property in addition to the subject property.
in section 13(1)(a) and (b) to hear and determine any question arising in
relation to any matter specified in a purchase notice and any question arising
for determination in consequence of a provision in a purchase notice such as is
mentioned in section 12(3)(b). Because the matters in dispute between the
parties were not specifically referred to in the purchase notice, the tribunal
did not have jurisdiction to hear them.
The following cases are referred to in
this report.
Denetower Ltd v Toop [1991] 1 WLR 945; [1991] 3
All ER 661; [1991] 1 EGLR 84; [1991] 20 EG 194, CA
Kay Green v Twinsectra Ltd [1996] 1 WLR 1587; [1996] 4
All ER 546; [1996] 2 EGLR 43; [1996] 38 EG 136
Stephen Jourdan (instructed by Bennett
Taylor Tyrrell) appeared for the applicant; Thomas Leech (instructed by
Bristows Cooke & Carpmael) represented the respondent.
Giving the decision of the tribunal, MRS
BM HINDLEY said: As a preliminary issue the parties, while accepting that a
purchase notice had been properly served under section 12 of the Landlord and
Tenant Act 1987, were in dispute as to the consequent extent of the
jurisdiction of the leasehold valuation tribunal.
Mr Thomas Leech argued that under section
12(3)(b) the tribunal had the power to determine any matters in dispute. Mr
Stephen Jourdan contended that the terms of the notice (attached as appendix A)
limited their powers to those within the scope of section 12(3)(a), which
covered only the issue of an original disposal relating to property in addition
to the (subject) property.
Both counsel referred the tribunal to Denetower
Ltd v Toop [1991] 1 WLR 945* and Kay Green v Twinsectra
Ltd [1996] 1 WLR 1587† and found support for their opposing views in
various extracts from the judgments.
*Editor’s note: Also reported at [1991] 1
EGLR 84
†Editor’s note: Also reported at [1996] 2
EGLR 43
The tribunal, seeking assistance
initially from the statute, noted that section 13(1)(a) and (b) clearly set out
their jurisdiction, which was to hear and determine ‘any question arising in
relation to any matter specified in a purchase notice … and any question
arising for determination in consequence of a provision in a purchase notice
such as is mentioned in section 12(3)(b)’.
Thus, with the matters now in dispute not
specifically referred to in the purchase notice, the tribunal concluded that
their powers were limited to the determination of questions arising under
section 13(1)(a) only. They were not persuaded by Mr Leech’s submissions that
para 6 of the purchase notice provided the landlord with the notice required
under section 13(1)(b) to enable the tribunal to consider the questions on
which their determination was now sought.
Appendix A
Landlord
and Tenant Act 1987 Section 12(1)
Purchase
Notice
To:
Mark Lester
5 Zenith Lodge
Etchingham Park Road
London N3 2DS
I, Vivienne Skinner, of Flat 2, 134
Shirland Road, Maida Vale, London W9, as agent for the persons referred to in
the paragraph l below Give You Notice
as follows:
1. The persons whose names and addresses
appear in the schedule below and on whose behalf this Notice is served form the
requisite majority of qualifying tenants under Part I of the Landlord and
Tenant Act 1987 of the constituent flats in 134 Shirland Road, Maida Vale,
London W9 (‘the Property’). The terms ‘qualifying tenants’, ‘requisite majority’
and ‘constituent flats’ are defined in the Landlord and Tenant Act 1987
Sections 3, 5(6) and 5(8).
2. We have reason to believe that:
2.1 You acquired an estate or interest in
the Property from Mr Maurice Norman Lester of 22 South Square, Hampstead Garden
Suburb, London NW11 7AJ (‘the Original Landlord’); and
2.2 Part I of the Landlord and Tenant Act
1987 applied to the Property or Part of the Property at the time of that
disposal to you (‘the Original Disposal’) and still so applies; and
2.3 The Original Disposal was a relevant
disposal as defined in the Landlord and Tenant Act 1987 Section 4 and was made
without the Original Landlord having served notice under Section 5 of that Act.
3. We
Now Give You Notice under the Landlord and Tenant Act
1987 Section 12(1) that we require you to dispose of the estate in the Property
that was the subject matter of the Original Disposal on the terms on which the
Original Disposal was made, including those relating to the consideration
payable, to The 134 Shirland Road Management Company Limited of 134
Shirland Road, Maida Vale, London W9 2BT being the person nominated for the
purposes of that section by the requisite majority of qualifying tenants of the
constituent flats in the Property.
4. In accordance with the Landlord and
Tenant Act 1987 Section 12(3)(a) if the estate or interest that was the subject
matter of the Original Disposal to you related to any premises in addition to
the Property or part of the Property to which Part I of the Act applied at the
time of that disposal We Require You:
4.1 to dispose of that estate or interest
to the person named in paragraph 3 above only in so far as it relates to the
Property or the part of the Property to which Part I of the Landlord and Tenant
Act 1987 applied and not the additional premises; and
4.2 to do so on the terms referred to in
paragraph 3 above subject to such modifications as are necessary or expedient
in the circumstances.
5. You
Should Note that under the Landlord and Tenant Act 1987 Section
12(4)(a) if you have entered into a charge, mortgage or lien to secure the
payment of money or the performance of any other obligation, the instrument
that effects the disposal to the person named in paragraph 3 above will operate
to discharge the property to which the disposal relates from that charge
mortgage or lien (subject to the provisions of the Landlord and Tenant Act 1987
Schedule l, Part I). In the case of any other incumbrances (other than a
rentcharge) now affecting the Property, the Landlord and Tenant Act 1987 Section
12(4)(b) provides that the consideration payable to you may be reduced by a
corresponding amount to reflect the value of your interest subject to such
incumbrance. If there is any such charge, mortgage, lien or other incumbrance
that might affect the value of the Property we require you to notify us and
supply us with full details immediately in response to this notice.
6. If you maintain that there has been
any change in circumstances that under the provisions of the Landlord and
Tenant Act 1987 Section 12(6) would increase the amount of the consideration
payable to you we require you to notify us and supply us with full details
immediately in response to this Notice. Any such alleged change of
circumstances or any other question arising in relation to the matters
specified in this Notice may be referred to the local rent assessment committee
for determination under the Landlord and Tenant Act 1987 Section 13.
Dated
The 15th Day of August 1996.
Schedule
The majority of qualifying tenants
Mark Webster
Garden Flat (Basement)
134 Shirland Road
Maida Vale
London W9 2BT
Bob Wilson
Ground Floor Flat
134 Shirland Road
Maida Vale
London W9 2BT
The Representative of Caroline Wilkinson
Flat 1
134 Shirland Road
Maida Vale
London W9 2BT
VS Skinner
Flat 2
134 Shirland Road
Maida Vale
London W9 2BT
Dr Giancarlo Fabj
Flat 3
134 Shirland Road
Maida Vale
London W9 2BT
VS Skinner
Signed as agent on behalf of the
requisite majority of the qualifying tenants
