Landlord and tenant – Right to manage – Respondent right to manage company claiming to acquire right to manage – Appellant landlord opposing claim on ground that notices of invitation to participate not served on all required persons – Leasehold valuation tribunal (LVT) granting declaration that respondent entitled to acquire right to manage – Whether respondent making timely application for such declaration – Whether LVT having discretion to waive defects in application – Appeal allowed
The respondent was a right to mange (RTM) company formed by qualifying tenants of flats for the purpose of a claim to acquire the right to manage their building, pursuant to Chapter 1 of the Commonhold and Leasehold Reform Act 2002. In July 2010, the respondent served a claim notice on the appellant landlord, pursuant to section 79 of the Act. The appellant served a counternotice, under section 84, in which it disputed the respondent’s entitlement to acquire the right to manage at the relevant date on the ground that it had not, at least 14 days before giving its claim notice, served a section 78 notice of invitation to participate on all those entitled to such notice, contrary to the requirements of section 79(2). It contended that a notice served in connection with an earlier withdrawn RTM claim did not suffice and that the respondent should have served a new one in connection with its new claim.
The respondent applied to the leasehold valuation tribunal (LVT), under section 84(3), for a declaration that it was entitled to acquire the right to manage on the relevant date. The appellant contended that the application was out of time since it had not been made within the statutory time limit of two months from the giving of the counternotice.
The LVT found that the hard copy of the application had been received out of time but that an earlier faxed copy was in time. Although the faxed application did not comply with the requirements of para 3(5) of the Leasehold Valuation Tribunals (Procedure) Regulations 2003, since it was not accompanied by the documentation listed in para 4 of Schedule 2 to those regulations, the LVT considered it appropriate to dispense with or relax those requirements pursuant to its discretion under para 3(8). It found that the earlier notices of invitation to participate were sufficient for the purposes of section 79(2) and that the respondent was entitled to acquire the right to manage the premises at the relevant date. The appellant appealed.
Held: The appeal was allowed.
(1) Although a fax was an acceptable method of lodging an application, the respondent’s faxed application did not fulfil the requirements of para 3(5) of the 2003 Regulations since the documents listed in para 4 of Schedule 2 were not included. Para 3(5) imposed a positive requirement to include those documents with the application. The discretion to dispense with those requirements, under para 3(8), arose only if sufficient particulars and documents enabled the application to be determined. For an LVT to determine whether a RTM company had the right to manage the premises, it needed to have information on whether: (i) the premises were premises within section 72 of the 2002 Act, to which Chapter 1 of Part 2 of the Act applied; (ii) the company was an RTM company within section 73; (iii) there were the requisite number of qualifying tenants, for the purposes of sections 72 and 75; (iv) the tenants’ leases were long leases, within sections 76 and 77; (v) the qualifying tenants had been given notice inviting participation under section 78; and (vi) the claim notice had been given to the relevant parties under section 79. Without the particulars and documentation to establish those matters, and a claim notice containing the information set out in section 80, an LVT would not be able to determine the application. Accordingly, if that information were not known, the LVT could not dispense with or relax the requirements of para 3(5) of the regulations. The only document received by the LVT within that time was the faxed claim form, containing the name and address of the RTM company and of its representative, the name and address of the landlord and its representative, and the address of the premises. That information did not provide the particulars and documents necessary to enable the application to be determined; therefore the LVT had not been entitled to dispense with the requirements of para 3(5).
(2) It was not necessary to serve new participation notices under section 78 where a withdrawal or deemed withdrawal of a claim notice had occurred. A new invitation to participate would have to be served only if the identity of those entitled to participate in the RTM had changed, or the new claim was altered so that section 78 was no longer complied with. If there was no such alteration in the identity of those entitled to participate or the nature of the new claim, a requirement to serve a further invitation to participate did not arise. The LVT had correctly concluded that it was unnecessary for a new invitation to participate to be served.
Simon Serota (of Wallace LLP) appeared for the appellant; the respondent did not appear and was not represented.
Sally Dobson, barrister
