Leasehold enfranchisement — Leasehold Reform, Housing and Urban Development Act 1993 — Lease renewal — Notice under para 8(1) of Schedule 2 to Leasehold Reform (Collective Enfranchisement and Lease Renewal) Regulations 1993 — Tenants not completing on date provided in landlords’ para 8 notice — Landlords purporting to withdraw from transaction — Whether para 8 notice effective — Effect of non-compliance with such notice — Appropriate order under section 48 of 1993 Act
The claimants, as the long leaseholders of six flats, sought to exercise their right to acquire new leases from the defendant landlords, pursuant to Chapter II of the Leasehold Reform, Housing and Urban Development Act 1993. After the service of tenants’ notices and landlord’s counternotices, the leasehold valuation tribunal (LVT) determined the premium payable for the new leases. The LVT sent its decision to the parties on 19 December 2008 and the defendants received it on 22 December 2008.
On Monday 16 February 2009, the claimants’ solicitor received by email a notice, given by the defendants under para 8(1) of Schedule 2 to the Leasehold Reform (Collective Enfranchisement and Lease Renewal) Regulations 1993, requiring the claimants to complete on the new leases 21 days from that date. The claimants did not complete on the date provided by the notice, although they indicated their continuing intention to proceed and their solicitor was put in funds to complete by the end of March. The defendants asserted that they were no longer obliged to grant the leases owing to the claimants’ non-compliance with the notice.
The claimants applied to the county court, under section 48(3) of the Act, for an order requiring the defendants to grant the new leases. In those proceedings, issues arose as to: (i) whether the defendants’ notice was ineffective, under para 8(2), on the ground that it gave a date for completion that fell after the expiry of the “appropriate period” in section 48(6) of the 1993 Act; and (ii) the effect of para 8 notices in general. On the former point, the defendants submitted that the “appropriate period”, namely two months from the date when the LVT’s decision became final, should be calculated by reference to the date when they received the LVT’s decision, rather than the earlier date when it was sent.
Held: The claim was allowed. (1) The LVT’s decision had become final once the 21-day period for appealing it had expired. That period ran from the date on which the decision document was “sent” to the parties, not when it was received: see regulation 20 of the 1993 Regulations. The period for appealing had therefore ended at midnight on 8 January 2009; accordingly, the “appropriate period” had expired two months later at midnight on 8 March 2009. The date for completion under the defendants’ para 8 notice was the first working day after the expiration of 21 days beginning with the date the notice was given: see para 8(1). Running that period from 16 February 2009, when the notice was received by e-mail, it had expired on 8 March and the completion date had been the next working day, namely 9 March. Since that completion date fell after the end of the appropriate period, the notice had not been effective to fix the date for completion under para 8(1): see para 8(2). (2) Non-compliance with a para 8 notice does not entitle the other party to terminate the transaction. It is not equivalent to a notice to complete making time of the essence in the case of an ordinary contract, but is more akin to the initial completion date specified in such a contract. Its purpose is to provide an initial date for completion in the event that the parties do not agree one. Failure to complete on the date fixed by a para 8 notice does not entitle the party giving the notice to thwart the enfranchisement process. Only the court, and not a party, can make time of the essence. Non-compliance with a para 8 notice is only one factor to be taken into account by the court in deciding what order to make under section 48. Since the claimants had been able, ready and willing to complete by the end of March 2009 at the latest, their tenants’ notice should not be treated as withdrawn under section 48(4) and the appropriate course was to make an order fixing a date for completion.
The following case was referred to in this report.
Trow v Ind Coope (West Midlands) Ltd [1967] 2 QB 899
This was the hearing of a claim by the claimants, Richard Ayres, Mr Mandel, Mr Bond, Mr and Mrs Desborough, Mr Valance and Mr Miles, seeking an order, under section 48 of the Leasehold Reform, Housing and Urban Development Act 1993, requiring the defendants, Jonathan Roberts and Janet Thain, to grant new leases on a leasehold enfranchisement claim under Chapter II of the Act.
Ellodie Gibbons (instructed by Thackeray Williams) appeared for the claimants; the first defendant appeared in person for the defendants.
Giving judgment, HH Judge Peter Cowell said:
[1] This is an application by six flat owners under section 48(3) of the Leasehold Reform, Housing and Urban Development Act 1993 (the 1993 Act). There are in fact seven active claimants: the fourth and fifth Mr and Mrs Desborough are husband and wife and they have one flat, no 17; the first claimant Mr Richard Ayres is the owner of flat 5; the second claimant Mr Mandel of flat 13; the third claimant Mr Bond of flat 15; the fourth and fifth claimants are the Desboroughs of flat 17; the sixth claimant Mr Valance of flat 23; and the seventh claimant Mr Miles of flat 37. They are all long leaseholders. The eighth claimant has dropped out of the picture for her matter was completed shortly after the issue of this claim. The defendants are the landlord or freehold owner of the block in which the flats are situated.
[2] The material history of this case, after the usual tenant’s notice and landlord’s counternotice had been given, is that the leasehold valuation tribunal (LVT) sent its decision on 19 December 2008 to all parties concerned, in which the LVT determined what premium should be paid by the claimants in return for grants of the usual 90-year terms to which they were entitled under the 1993 Act in respect of their respective leases. There is no doubt that this application has been made within time.
[3] For reasons that will become apparent, it is important to know when in this case the appropriate period began, the appropriate period being defined in section 48(6)(b)(i). That reads, so far as material, as follows:
For the purposes of this section the appropriate period is –
(b) where all or any of those terms have been determined by a leasehold valuation tribunal under subsection (1)
I pause to say that is the case. The material subpara is (i):
(i) the period of two months beginning with the date when the decision of the tribunal under subsection (1) becomes final.
In order to determine that date, one has to go to section 101(9):
For the purposes of this Part an order of a court or a decision of a leasehold valuation tribunal is to be treated as becoming final –
(a) if not appealed against, on the expiry of the time for bringing an appeal.
In order to determine when that was, one has to go to regulation 20 of the Leasehold Valuation Tribunals (Procedure)(England) Regulations 2003. Regulation 20 reads:
Where a party makes an application to a tribunal for permission to appeal to the Lands Tribunal
(a) the application shall be made to the tribunal within the period of 21 days starting with the date on which the document which records the reasons for the decision under regulation 18 was sent to that party.
[4] So the crucial words in that regulation are the words “sent to”. The fact is in this case that on 19 December 2008, under cover of a letter of that date, the decision of the tribunal (which was of course in writing) was sent to both parties. In the letter enclosing a copy of the decision the clerk to the LVT expressed the matter in relation to appeal in these words:
Any application from a party for leave to appeal to the Lands Tribunal must normally be made to the Leasehold Valuation Tribunal within 21 days of the date of this letter.
[5] In fact, that was a misdescription of the period because in accordance with the true construction of regulation 20, which uses these words “within the period of 21 days starting with the date on which the document which records the reasons for the decision under regulation 18 was sent” the 21 days started with that date, 19 December, and so that period ended at midnight on 8 to 9 January 2009. The words of the letter, “within 21 days of the date of this letter”, on their true construction would begin the period of 21 days the day after the 19 December. A similar situation arose in Trow v Ind Coope (West Midlands) Ltd [1967] 2 QB 899 and it was held by the Court of Appeal that it is the regulation that governs the matter, not what a letter may say about the matter or, as in that case, a wrong note in a practice book. So the position – and I am in no doubt about this at all – is that the period ended, as I say, at midnight on 8 to 9 January.
[6] Going back to section 48(6), the appropriate period begins with the date when the decision of the tribunal under subsection (1) becomes final and that means that the appropriate period ends two calendar months after that, that is at midnight on 8 to 9 March 2009. So that is the appropriate period.
[7] It was argued by the defendant in a very able argument (the first defendant has appeared in person) in which he states that it is odd that a party may receive a decision from the LVT after time has started to run. In fact, he received the decision on Saturday 20 December whereas the claimants, through their solicitors, received it on Monday 22 December. It may seem odd that a period of time has started to run at the time that the parties receive the documents in question but that is what regulation 20 says, however odd it may seem. However, there are further important points to make, as indeed they were made by Ms Ellodie Gibbons of counsel for the claimants. It is obviously convenient that the same period should govern the rights of both parties to a prospective appeal. Each party may receive the decision on a different date, as indeed happened in this case, and certainty is provided by using the date of sending of the decision to those parties. She pointed out for good measure that provided an application is made before the end of the period, the LVT has jurisdiction under section 24 to enlarge the period for making the appeal. However, essentially the date of receipt by the parties of a document sent out on the same day may be so different that uncertainty is avoided by determining that the period begins on the date of the sending of the decision. She also pointed out that there is in those regulations no deeming provision that exists about deemed receipt.
[8] The defendant also sought to argue that the word “sent” meant “received” because of certain e-mail provisions that one finds in regulation 23. There is, however, a difference between the words “given” and “sent”, which is specifically referred to in the opening words of regulation 23. There are also different words, “delivered” and “sent” in para (a) of regulation 23(1). The e-mail provision is in para (b) of 23(1) and refers to “sent” only, not to “delivery” or “given”. The other e-mail provision is to be found in para (c)(ii) of regulation 23(1) and again that only refers to the word “sent”. In my judgment, “sent” does not mean “given”. It so happens that if electronic communication is used the recipient does receive the message on the same day if he is at his computer. Incidentally, regulation 23(2) ensures that the recipient must consent to such a method of sending, that is by electronic communication, and so one can see that it may, in the case of an e-mail, be received on the same day as the e-mail is sent. However, it does not follow from that that because that happens in fact when e-mail is used that when other means of communication are used the sending of it must be construed as the receiving of it. In my judgment, that argument of the defendant does not assist him. My very clear conclusion is that the appropriate period ended at midnight on 8 to 9 March; 8 March 2009 was a Sunday and 9 March 2009 was a Monday.
[9] I next refer to what has been called throughout the case and the argument the “notice to complete”, although what that connotes is a matter that I will come to in due course. I will first of all deal with the question of statutory interpretation, a dry legal question. In this case, the defendant sent by e-mail to the claimants’ solicitor a notice requiring completion within 21 days in accordance with para 8 of Schedule 2 to the Leasehold Reform (Collective Enfranchisement and Lease Renewal) Regulations 1993. In fact, he sent that by e-mail to the claimants’ solicitor on a Sunday evening, the Sunday evening of 15 February 2009, although that was not in fact received by the claimants’ solicitor for, not surprisingly, she was not in the office on Sunday evening but went there on Monday 16 February and opened her e-mail on that day. One can see from the response to that e-mail on the same day, Monday 16 February, that she must have received it on that Monday.
[10] The regulations I am now referring to are wholly different regulations from the first lot that I referred to; these are the Leasehold Reform (Collective Enfranchisement and Lease Renewal) Regulations1993, which contain in regulation 4 a provision that mirrors very closely section 99 of the Act. Regulation 4 says:
4. Any notice, statement, answer or document required or authorised to be given under these Regulations –
(a) shall be in writing, and
(b) may be sent by post.
Section 99(1) reads very similarly:
Any notice required or authorised to be given under this Part —
(a) shall be in writing, and
(b) may be sent by post.
The crucial word in this case is “given”. The note in Halsbury’s Statutes under section 99(1) in relation to the words “May be sent by post” reads:
This provision brings into operation the provisions of the Interpretation Act 1978, s7, Vol 41, title Statutes, to the effect that service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
[11] The defendant also sent to the claimants’ solicitor a letter that was posted on 16 February, the same Monday, and that arrived on Tuesday 17 February, which, incidentally, is the day on which it would have been deemed to have arrived. So there is no factual dispute about that.
[12] The defendant’s argument, and I am inclined to think that it is correct, is that the giving of the notice does not have to be done by post because of the words “may be sent by post”; it may be given in another way. He argues that it was given by e-mail when it was received by the claimants’ solicitor on Monday 16 February, for that was the day when she read it and received it. Indeed, in her response of the same date at p142, she made the point that the notice was out of time, which I will explain in a moment.
[13] Does this matter? What is the significance of all that? I think it is convenient in order to explain the matter to go to paras 7 and 8 of Schedule 2 to these Regulations. As a matter of undisputed fact, the form of the draft leases that were to be granted were not in dispute and the form existed. Therefore what is relevant for the purposes of completion of the transaction are subparas (6) and (7) of para 7 and they read:
(6) The landlord shall prepare the lease and as many counterparts as he may reasonably require and shall give the counterpart or counterparts to the tenant for execution a reasonable time before the completion date.
Pausing there, the lease of course that he has to prepare is the document that he will sign and the counterparts are the documents which the tenant will sign and he has to give the counterpart to the tenant for execution, as the paragraph says. Subparagraph (7) reads:
(7) The tenant shall give the counterpart or counterparts of the lease, duly executed, to the landlord and the landlord shall give the lease, duly executed, to the tenant, on the completion date or as soon as possible afterwards.
So that shows what, in the background, has to be going on as a matter of practical good sense.
[14] I will next read in full subparas (1) and (2) of para 8 of this schedule:
(1) Subject to sub-paragraph (2), after the draft lease is approved or deemed to have been approved, either the landlord or the tenant may give the other notice requiring him to complete the grant of the lease on the first working day after the expiration of twenty-one days beginning with the date the notice is given.
(2) Sub-paragraph (1) shall not apply if the date for completion would fall after the expiry of the appropriate period specified for the purposes of section 48 or 49 (applications where terms in dispute or failure to enter into new lease, and applications where landlord fails to give counternotice or further counternotice), and in that event the date for completion shall be such day as the landlord and tenant agree in writing or the court orders under section 48(3) or 49(4) (order of the court on failure to enter into new lease).
[15] So the words to concentrate on in subpara (1) of para 8 are “on the first working day after the expiration of 21-one days beginning with the date the notice is given”. Assuming that the defendant’s argument is correct and the receipt of the email was on Monday 16 February and that that was the date on which the notice was given, then, without more, the period of 21 days beginning with 16 February has its last day on 8 March, and the next working day after that was Monday 9 March. That is the date that is described as the first working day after the expiration of the 21 days, and that is the date for completion. However, there is more because subpara (2) of para 8 says that subpara (1) shall not apply if the date for completion (and we know that is Monday 9 March) would fall after the expiry of the appropriate period. It does fall after midnight on 8 to 9 March, the expiry of the appropriate period. Therefore by subpara (2) of para 8 the date for completion must be what the court orders, assuming that the court does not order, which is a possibility under section 48(4), that the original tenant’s notice that began the entire proceedings should be deemed withdrawn, which would have the effect that the entire edifice built by notice and counternotice and by the leasehold valuations falls completely to the ground. It is in fact not necessary to decide if that assumption (that the defendant is correct in saying that the notice was given by the e-mail received on 16 February) is correct for it gave a date for completion that is outside the appropriate period. Even if it is to be noticed for good measure that the e-mail could be treated as having been given on the Sunday, the 15, the next working day after the expiry of the appropriate period at midnight on 7 to 8 of March was also the 9 of March because the 8 was a Sunday and not a working day. On any view, subpara (1) of para 8 cannot apply so as to fix the date for completion.
[16] I now mention a number of matters that arise as a result of careful consideration of what is the purpose of all these provisions. I begin by pointing out that lawyers who specialise in property law are very well aware that a notice to complete in the usual context of contracts voluntarily made for the sale and purchase of land connotes a right that one party has against another, defined by the contract, by which one party may make time of the essence of the contract, with the result that provided that one party is ready, able and willing to complete, if the other party does not complete within the period specified in the notice to complete then the party giving the notice has the right to treat the entire contract as repudiated and to forfeit the deposit and so on. When one comes across the term “notice to complete” one very readily thinks in terms of the usual contractual rights making time of the essence and giving an entitlement to the giver of the notice to bring the transaction to an end. What is noticeable about the 1993 Act is that it does not say what is the consequence of giving a notice to complete which is not complied with. It might have but it did not provide that the party serving the notice, if ready, able and willing to perform his obligations, could then, if the other party did not complete, treat the entire exercise as something to be unscrambled, just as if the tenant’s notice had been withdrawn. As I have pointed out, that is not what is provided.
[17] There are a number of observations that I think it right to make in connection with this. The first is, as I have just pointed out, that the Act does not give a consequence equivalent to the notice to complete provisions in a normal contract by which one party may make time of the essence. At best, as Ms Gibbons pointed out in her written argument, it may be one of the factors among many others that may induce the court when it becomes seized of the matter under section 48(3) to decide whether it should treat the tenant’s notice as withdrawn, and one of the factors that the court must take into account in deciding what order it should, in its discretion, make. In short, the Act does not confer any right or any entitlement on the party giving the notice. It reminds me a little of that wholly inaccurate expression used by members of the public in relation to injunctions. They frequently refer to a party taking out or issuing an injunction and what they do not seem to appreciate is that the grant of injunction is something done by the court in the exercise of a discretion; it is not a right that one party has against another. I look at the discretion under the Act that the court has in the same light. At any rate, that is the first point.
[18] The second point is this, that only if one does treat the notice to complete given under para 8 as being the equivalent of a notice to complete in the case of an ordinary contract does it seem odd that the earlier date for completion within the appropriate period may validly be fixed, whereas a later date that a party may wish to fix as a date for completion, but which is invalid under subpara (2) of para 8, is in ordinary circumstances the more likely to be met by the other party. The mere fact that that seems odd indicates that this is not a provision that is designed to confer an entitlement on the party giving the notice.
[19] The next point to make is that whereas in the case of an ordinary contract the other party is entitled to complete on or before a final date, the provision in this paragraph fixes the date for completion. The words in subpara (1) are “the first working day after” and in subpara (2) “the date for completion”, so it does not require completion on or before a date; it provides a date for completion. That is the third point.
[20] The fourth point is that it provides a date for completion for the first time. It seems to me that the purpose of the provision is simply to provide what an ordinary contract invariably provides, which is a date for completion. That date, under an ordinary contract, is not of itself of the essence of the contract precisely because there are provisions in the contract for time to be made of the essence by a notice to complete being given. The date for completion specified in the ordinary contract is the date in relation to which the parties work out the figures that are to be paid on that date and of course in the vast majority of cases that is the date when the contract is completed. However, one only has to look at the Act to notice that no date for completion is to be determined from the Act itself. In the case of enfranchisement there is indeed no contract, and it is possible that the parties may not agree a date for completion, and this is a very good example of the parties not agreeing a date for completion. A date is required for the simple practical reason that the parties can work out the exact amount to be paid only by reference to a date. In this case, the ground rent ceases to be paid under the old lease when the new lease is granted, for the new lease is a term that reserves only a peppercorn and according to whether the ground rent is payable in advance or in arrears (if in advance some portion of it will have to be returned by the landlord; if in arrears, which is probably this very case, some proportion is going to be payable by the tenant). So, if there has been no agreement what the date for completion should be, one party can determine what it shall be by serving notice under para 8(1). It is, in short, a piece of practical machinery.
[21] In my judgment, the notice requiring completion given under para 8 does not therefore carry with it any notion that failure to complete on the fixed day confers on the party giving it any right by which he can thwart the enfranchisement progress. Indeed, para 8 provides that it is the court that essentially makes time of the essence and not a party, even a party acting under para 8(1). That paragraph is designed to provide the initial date for completion; a paragraph that may be invoked if that date has not been determined by agreement.
[22] It is also to be noticed that if the notice to complete is ineffective under subpara (2) then during the next two month period provided by section 48 either the parties may agree another date or, if application is made within those two months (the application cannot be made before that period of two months begins) the court fixes the date. During this second period of two months, any one party cannot fix the date for completion (that is because of subpara (2) of para 8); only the court can fix it if the parties cannot agree. It is also to be noticed that the court’s power or discretion to deem the tenant’s original notice to have been withdrawn at the end of the appropriate period applies whether or not the completion date was fixed by one party or was never fixed.
[23] Therefore one has three different periods to look at. At one extreme during what is called the appropriate period, the first period of two months running after the decision of the LVT is final. The failure to comply by a tenant with a notice to complete given by the landlord and effective during the appropriate period while the landlord is ready, able and willing to complete, may give rise to a suspicion that the tenant may not want or be able to perform its obligations. At the other extreme, after the expiry of the second period of two months, if the tenant has not applied to the court by the end of that second period of two months, essentially the statute is saying to the tenant, “It is perfectly obvious that you, the tenant, do not want or cannot perform your obligation, hence the entire exercise falls to the ground and your original notice is deemed withdrawn and has no effect whatever.” Then there is the intermediate period, the second period of two months. That is a period when the court can investigate whether in truth there is a problem with the tenant’s willingness or ability to perform and, if there is, it can then declare the original tenant’s notice as deemed withdrawn and there is a complete falling to the ground of the entire edifice that was built on the original tenant’s notice. As Ms Gibbons pointed out in her skeleton argument, for the court to determine that a tenant’s notice is withdrawn is for the court to take a draconian step and she explains why that is so. I entirely agree. It means that all the work that the tenant has done since serving his notice comes to nought. It means that he cannot make a further application for another year and it means in practice for various reasons that it is likely that on a second costly procedure the amount of the premium that he will be required to pay may be a good bit more, which of course is why landlords are only too pleased if they can find a way for the original tenant’s notice being treated as withdrawn. As Ms Gibbons pointed out, it is a matter of discretion and the court would be slow to take such a draconian step. As I have already pointed out, it is essentially the court that is given the task of deciding whether time is of the essence, and perhaps understandably the legislation does not leave such rights to the parties because the parties were never in a contractual relationship at all. This is enfranchisement that deprives the freeholder of property for a consideration but is not done with the freeholder’s consent.
[24] I should next mention the facts of this particular case because, as a result of the statutory interpretation that I have had to give to the statute in relation to its application in this case, I have to determine what should be the completion date unless in my discretion I should exercise the draconian power of declaring the tenant’s notice deemed withdrawn. So I now mention the practical steps that have to be taken in cases like this and in this case. First of all, the landlord has to provide his costs that are payable by the tenant as a result of the enfranchisement process. In this case, he did that by letter dated 26 January: p112. When the completion date is fixed, the landlord can then work out the amount due to him, determining in this case (among other things) the amount due back from him to the particular tenant in respect of the ground rent that had been payable in advance on the previous quarter day or whenever it was payable. So he has to send his completion statement to the claimants’ solicitor. The next step is that the landlord also has to send, and he would probably do this at the same time, such counterparts as he wanted executed by the tenants: para 7. The fourth step is that the claimants’ solicitor sends to her client (for it was Ms Hawkin in this case who acted on behalf of the claimants) the same statement prepared by the landlord together with her own fees (which are payable by the claimants) to the claimants themselves so that they know what money is required of them and there will be of course the implied, if not expressed, request for funds to be provided by the claimants by the completion date.
[25] Bearing in mind those steps that have to be taken, I can refer to a helpful document provided by the defendant himself that, in the first detailed column in relation to each of the claimants and their flat numbers, he pinpoints the letters giving an indication of readiness to complete and when. I need only say that that column is entirely factually accurate. I would only add that in the case of Mr Ayres (flat 5) there was a further letter that should be referred to of 19 February in which the claimants’ solicitor pointed out that Mr Ayres was in Singapore. That is the letter at p152. In the case of Mr Bond, flat 15, there should be added a reference to the 19 February letter (p151) mentioning that he was abroad in Brazil. There is also to be mentioned there a letter of 16 February (p142a) in order that the history of his case is complete. Similarly in the case of Mr and Mrs Desborough of flat 17 there should be added a reference to a letter of 16 February 2009 (p142b). I mention that for full measure.
[26] The next column explains when, if at all, what I call the landlord’s completion statement and the counterparts were sent. In the case of Mr Ayres (flat 5) no landlord’s completion statement or counterpart was sent and the same applies to Mr Bond (flat 15) and the Desboroughs (flat 17). In the case of the other claimants Mr Mandel (flat 13) the completion statement and counterpart were sent to the claimants’ solicitor under cover of a letter of 19 February 2009 (p148); in the case of Mr Valance similarly on 19 February (p149); in the case of Mr Miles (flat 37) similarly on 19 February (p150).
[27] Having heard the evidence of Ms Hawkin, I have added two further columns. One is when, if at all, a completion statement was sent to the client and when the client provided funds. Not surprisingly in the three cases where a counterpart was sent and the landlord’s completion statement was sent under cover of a letter of 19 February (it may have been by email), the claimants’ solicitor, Ms Hawkin, then sent the full completion statement, including her fees, to the client in question on the same day, 19 February. That is when Mr Mandel, Mr and Mrs Desborough and Mr Miles received the information of what funds were needed for completion. In the three cases where no completion statement was sent by the defendant and no counterpart lease was sent by the defendant to the claimants’ solicitor, she, on 2 March, took it on herself to work out effectively what the landlord’s completion statement ought to provide without of course doing an apportionment of the rent so that her clients would be paying perhaps a pound or two more than would have been the case had the landlord prepared his completion statement. She sent those to her respective clients under cover of a letter of 2 March 2009 so that those three tenants knew what the position was on receipt of her letter of 2 March. So that explains when the various claimants knew what they were being asked to pay for completion.
[28] I take now the final column, when they put the claimants’ solicitor in funds, although that was not a matter that was known in detail to the defendants at the time. I will deal first with the three who were informed under cover of the letter of 19 February. Mr Ayres (flat 5) provided his funds on 13 March; Mr Bond (flat 15) on 26 March and the Desboroughs (flat 17) on 17 March. I remind the reader — should there ever be a transcription of this judgment — that the first mentioned was in Singapore on 19 February and the second was in Brazil on 19 February. In relation to the three tenants who received their completion statements on or after 2 March, Mr Mandel (flat 13) provided his funds on 18 March; Mr Valance (flat 23) on 13 March; Mr Miles (flat 37) on 17 March. All the funds were there by 26 March at the latest and the latest was the man who was said to be in Brazil in February. The statements of intention to proceed, which are evident from the letters written by the claimants’ solicitor, were never shown to be colourable or false in any way, and the defendant was in law wrong about any entitlement he had to treat the original tenant’s notices as having been withdrawn, and despite his absence of entitlement he even sought to say that the notices had been withdrawn before the expiry of the notice fixing the day of completion. I also note that in the three cases mentioned he did not send any counterparts or any of his completion statements as the claimants’ solicitor could reasonably expect him to do before completion.
[29] In any event, the defendant did not do or agree anything because he believed that he had a right to end the enfranchisement process, whereas only the court can do that. It may be that he hoped to show that some fact would emerge showing that one or other of the claimants could not afford to proceed. In fact, as is now known, all of them could proceed.
[30] It only remains now for me to mention some of the letters that passed before I conclude my judgment. I have already stated that the costs that the defendants were entitled to were specified on 26 January in a letter, such as the one at p115. It is important to notice that, at p124, on 28 January the claimants’ solicitor made a suggestion that the completion date should be 27 February, which only goes to underline the point that I made earlier, that there is nothing in the Act that provides a date for completion, that very practical date that enables the parties to work out the appropriate figures. So that was a perfectly sensible suggestion. Then it was qualified on p125 on 6 February when the claimants’ solicitor very straightforwardly said that some of the lessees would be unable to complete by the end of February as initially predicted.
[31] There then followed, as I have indicated, the emails of 15 February, the email response of 16 February, in which the claimants’ solicitor pointed out that the notice given under para 8 was out of time, and I have explained what they really meant by that. There was then, in the same e-mail, the statement that all matters will complete by the end of March, as indeed could have happened because by the end of March, indeed by Friday 27, which was the date suggested in a further letter dated 16 February (p142a and 142b) as we now know, funds were available by that date from all the claimants in this case with whom I am concerned at the moment. I should point out that the schedule also refers to some other persons, but I have not troubled to say anything about them because it is not relevant to what I have to decide. In that letter of 16 February the claimants’ solicitors, on the footing that agreement might be had that the completion date should be 27 March, asked for completion statements from the defendant calculated to that date. They also asked for the appropriate engrossment deeds for their clients’ signature. At p142, there is a statement by the claimants’ solicitor on behalf of the Desboroughs making it clear that they could complete by 27 March, just as had happened in relation to Mr Bond. Page 133 is the notice given by the defendant under para 8(1) of Schedule 2 and that speaks for itself and I need say no more about it. I merely mention for the sake of fullness pp144, 145 and 146 (which is a copy of p145). The documents I have referred to as being the defendant’s completion statement sent on 19 February are to be found at pp148, 149 and 150. The mention of Brazil is at p151 and Singapore at p152. I mention — but will not read in view of the time the claimants’ solicitor’s letter of 27 February at pp157 and 158. I also refer the reader to p160. There is a further letter by the claimants’ solicitor at pp162 and 163. There is then a letter of 9 March at p169; a further letter of 12 March at pp178-179 and yet another letter on p180. There is a response from the defendant at pp185 to 186 dated the first of April and the claimants’ solicitor wrote again on 3 April 2009 (p188). At p190 is the claimants’ solicitor’s letter of 2 June. They may all be read in full but I do not read them.
[32] The upshot of it is, as I have indicated, that the defendant was entirely wrong in thinking that he had any entitlement to treat the tenant’s notice as having been withdrawn and I am quite satisfied that the statements of intention to proceed on the part of the claimants was entirely genuine. They were all able, ready and willing to complete from and after the date that they put their solicitor in funds and the merits of this case are overwhelmingly in favour of my making an order fixing a date for completion (I will hear the parties in respect of what is a convenient date) and the merits are overwhelmingly against treating the case as one in which I should deem the tenant’s notice as deemed withdrawn. That is the end of this rather lengthy judgment.
Claim allowed.
