Defendant tenant serving notice of enfranchisement — Property consisting of house and adjoining mews — House of Lords ruling that house and mews separate for purposes of enfranchisement — Whether defendant needing to amend original notice of claim — Whether defendant entitled to serve notice of claim in respect of mews house
The claimant was the lessor of premises that consisted of a large house converted into flats and an adjoining smaller mews house. Part of the basement of the main house extended beneath the mews house. In 1997, prior to the expiry of the lease, the defendant lessee served a notice of enfranchisement to acquire the freehold of the property under the Leasehold Reform Act 1967. In the schedule attached to the notice, the properties were described as a “house and premises”.
The landlord challenged that claim on the grounds, inter alia, that: (i) the two properties, taken together, did not constitute a “house” for the purposes of the 1967 Act; (ii) neither property taken separately could constitute a “house” under the Act, or (iii) if the main house did constitute a “house”, the mews house could not then be enfranchised because it would not constitute “premises”.
The matter went through a series of hearings, culminating in a decision from the House of Lords. This found that the two properties were separate dwellings for the purposes of the 1967 Act and that, subject to proving his case, the tenant could enfranchise the main house but not the mews house. By this time, the lease had expired.
The tenant served a second notice of claim on the ground that he was entitled to enfranchise the main house. Incidental to that notice, he applied to amend the original notice by deleting the references to the mews house. The issues for the court were, inter alia, whether; (i) the tenant was required to amend the first notice of claim; (ii) such an amendment was merely an administrative act, and (iii) the second notice was valid despite its service after the contractual expiry of the lease.
Held: The appeal was dismissed.
1. On a natural reading of para 6(3) of the 1967 Act, a distinction was made between the inaccurate description of a property in a notice of claim, which would not invalidate it, and the erroneous exclusion or inclusion of property, which would. Few types of notice impinged more upon a landlord’s rights than a tenant’s notice of claim under the 1967 Act, since its effect was to deprive the landlord, against his will, of the property comprised in the tenancy. The law therefore required such a notice to reflect, in wholly accurate terms, that which the tenant was entitled to acquire. Thus, it was necessary for the tenant to amend the first notice of claim.
2. Such an amendment was more than a simple administrative act, given that the court had the jurisdiction to refuse an amendment or to impose terms upon it, but each case was to turn upon its own particular facts. In the instant case, the landlord had maintained, inter alia, that, given the considerable delay in resolving the issues, the relevant valuation date for the property should have been amended so as to reflect the value as at the date the notice had been amended pursuant to the permission of the court: that is, 2003, rather than the date in 1997 when the notice had been served. On the evidence, however, the landlord’s delay in dealing with the tenant’s claim for the acquisition of the main house was not caused by the fact that the 1997 notice referred to the mews house; even if the 1997 notice had not required amendment, and had correctly referred solely to the main house, there was no reason for believing that the delay would not have occurred in any event. On that basis, the landlord’s argument failed. The tenant was entitled to acquire the property at the price fixed by statutory formula, which was the relevant date in 1997.
3. The tenant could not have served a valid notice of claim under section 1(1) of the 1967 Act unless the tenancy of the lease was being continued in some way. However, para 3(1) of the 1967 Act effectively continued the tenancy under the same terms as in the original tenancy. The present form of the 1967 Act had, inter alia, deleted the residence requirement. Therefore, the only requirement was for the tenant to have leased the house under a long tenancy; it was not necessary for the tenant to continue to reside there.
Judith Jackson QC and Timothy Harry (instructed by Speechly Bircham) appeared for the claimant; Paul Morgan QC (instructed by Mishcon de Reya) appeared for the defendant.
Vivienne Lane, barrister
