Right to manage – Commonhold and Leasehold Reform Act 2002 – Notices – Respondent RTM company serving notice of invitation to participate on lessees under section 78 of 2002 Act – NIP containing error as to name of landlord – Whether that error invalidating NIP and subsequent claim notice – LVT holding NIP to be valid notwithstanding failure to give name of landlord as required by para 3 of 2010 Regulations – Appeal allowed
The respondent was an RTM company formed for the purpose of acquiring the right to manage certain premises on behalf of the lessees of flats in those premises pursuant to Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002. To that end, in February 2012 it served notice on the lessees, under section 78 of the Act, inviting them to participate in the right-to-manage process. However, that notice contained an error as to the name of the landlord of the premises, since it named a company that had recently ceased to be the landlord on selling the freehold to the appellant.
The respondent subsequently served a claim notice under section 79 of the Act. The appellant contended that the claim notice was ineffective since it had not been preceded by a valid notice of invitation to participate (NIP) under section 78. It submitted that the respondent’s NIP was invalid since it did not contain the name of the landlord as prescribed by para 3 of the Right to Manage (Prescribed Particulars and Forms) (England) Regulations 2010. The respondent argued that its NIP was saved by the provision, in section 78(7), that such a notice was not invalidated by any inaccuracy in any of the particulars required by or by virtue of that section.
The leasehold valuation tribunal (LVT) held that the error as to the landlord’s name could not be categorised as an “inaccuracy” and was not cured by section 78(7). It none the less held that the error did not invalidate the NIP in circumstances where that notice had been served on the appellant as well as the former landlord, the error had not caused prejudice to anyone and the claim notice itself contained no errors. The appellant appealed
Held: The appeal was allowed.
The respondent’s notice of invitation to participate failed to comply with the requirements of section 78 of the 2002 Act and the 2010 Regulations since it did not contain the name of the landlord. A failure to give the name of the landlord, or giving the an entirely incorrect name for the landlord, constituted a failure to provide the required particulars rather than an inaccuracy in the statement of the particulars; accordingly, the notice was not saved from invalidity by section 78(7) of the Act: Assethold Ltd v 14 Stansfield Road RTM Co Ltd [2012] UKUT 262 (LC); [2012] PLSCS 205 and Assethold Ltd v 15 Yonge Park RTM Co Ltd [2011] UKUT 379 (LC) [2011] PLSCS 251 applied. The respondent had not advanced any argument that the notice was none the less valid by reason of some other legal argument, such as an argument based on what the reasonable recipient would have understood the notice to mean: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; [1997] 1 EGLR 57; [997] 24 EG 122; [1997] 25 EG 138 considered. Accordingly, the respondent’s NIP was invalid.
Under section 79(2), it was a prerequisite for the giving of a claim notice that each person required to be given a notice of invitation to participate had been given such a notice at least 14 days previously. Thus, a valid NIP had to be served prior to any claim notice being given. If a claim notice was given in circumstances where no valid NIP had been served, then the claim notice was invalid. The respondent’s claim notice had been served in circumstances where there had not been compliance with section 79(2). It followed that the respondent had not been entitled to serve a claim notice when it did and, consequently, was not entitled to acquire the right to manage the premises on the relevant date.
The appeal was determined on the written representations of the parties.
Sally Dobson, barrister
