Landlord and tenant – Right to manage – Tribunal procedure – Defendant submitting RTM application form without identifying matter to be determined – Whether an application for purpose of section 84(3) of Commonhold and Leasehold Reform Act 2002 – Whether irregularity to which rule 8 of Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 capable of applying – Whether tribunal having power to deal with costs consequences of respondent conceding appeal – Appeal allowed
The respondent was an RTM company established to claim the right to manage Robert Court, a building in Peckham, south-east London. On 10 March 2017 it gave notice of its claim to the respondent, the freehold owner of the building, which served a counter-notice disputing the entitlement on 10 April. It was agreed that the last date for the respondent to make an application to the FTT under section 84(3) of the Commonhold and Leasehold Reform Act 2002 for a determination that it was entitled to acquire the right to manage Robert Court was 9 June.
The solicitors for the respondent submitted an application form in the First-tier Tribunal (Property Chamber)’s standard form RTM: Application relating to (No Fault) Right to Manage without indicating on the form what sort of application was intended to be made and without including copies of the relevant claim notice and counter-notice as required by the relevant FTT Practice Direction. When the necessary information and documents were eventually supplied, the time for making an application to acquire the right to manage had expired.
The FTT decided that, although the form was defective, it was nevertheless an application made within the statutory time limit; the absence of information and supporting documents was an irregularity which the FTT could correct by applying rule 8 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.
The appellant appealed, contending that the FTT had been wrong to rely on rule 8 of the 2013 Rules to cure the deficiency in the purported application under section 84(3). The Rules could not alter the requirements of the 2002 Act. The minimum requirement of section 84(3) was that the RTM company had to communicate to the FTT that it was making an application under that section. An unspecified application which did not tick one of the boxes in Annex 1 was not an “application” within the meaning of sections 84 and 87.
By the time the appeal came on for hearing the respondent agreed with the appellant that the appeal ought to be allowed and the decision of the FTT set aside.
Held: The appeal was allowed.
(1) Section 84(3) enabled an RTM company which had given a claim notice and received a negative counter-notice to “apply to the appropriate tribunal for a determination that it was on the relevant date entitled to acquire the right to manage the premises”. If it did not do so within two months of receiving the counter-notice, the claim notice was deemed to have been withdrawn by section 87(1)(a).
The application received by the FTT on 1 June did not ask the tribunal to determine anything. Because none of the options in Annex 1 had been selected, it was impossible to tell what sort of application was contemplated. It was obvious that the respondent wanted to apply for something but it could not be described as an application for anything; in particular, it was not an application for a determination that the respondent was entitled to acquire the right to manage the premises.
(2) Rule 8 could not be used to cure a defect in compliance with the minimum requirements of section 84(3). Those requirements were substantive and they had not been satisfied by 9 June by the making of an application for the relevant determination because no request had yet been made for a determination of entitlement. Therefore, the consequence of deemed withdrawal provided for by section 87(1)(a) would befall the claim notice. That consequence was specified in the statute and could not be avoided by reliance on rule 8 or any other procedural tool.
(3) Rule 8 could be relied on to preserve an application under section 84(3) from any adverse consequences of a failure to supply the documents required by the FTT’s own practice direction. Compliance with the practice direction was a requirement of the Rules, and the consequence of non-compliance could therefore be provided for by the Rules. But the Rules could not modify the requirements of the 2002 Act itself. The application required by section 84(3) need not be in any particular form but, as a minimum, it had to ask for a determination of entitlement to acquire the right to manage. If it did not do so, it would not be possible to describe it as an application under section 84(3) for the purpose of meeting the deadline imposed by section 84(4): Aldford House Freehold Ltd v Grosvenor (Mayfair) Estate and another [2018] EWHC 3430 (Ch); [2018] PLSCS 223 considered.
(4) The 2002 Act contained no saving provision of its own which protected an intended application from invalidity if it was affected by some inaccuracy or irregularity. In that regard an application under section 84(3) was different from a notice of invitation to participate under section 78 or a claim notice under section 80, both of which were protected by a specific provision that an inaccuracy would not invalidate the document. Therefore, the FTT ought to have dismissed the application as having been made too late. An application was not made until 12 June 2017 when the form was first returned to the FTT with option (a) in Annex 1 having been ticked. The omission of the required supporting documents was not fatal to the validity of that attempt because they could be cured by reliance on rule 8. Accordingly, the tribunal would allow the appeal, as it was invited to by both parties, and dismiss the respondent’s application to acquire the right to manage.
(5) Since no application for the determination of any costs payable by the respondent had yet been made to the FTT under section 88(4) of the 2002 Act, the Upper Tribunal had no jurisdiction to make a determination in relation to costs. Nevertheless, the tribunal expressed a view on the costs consequences of the appeal being allowed at the request of the parties. If an application for costs had been before the tribunal, the tribunal would have dismissed it: Post Box Ground Rents Ltd v Post Box RTM Co Ltd [2015] UKUT 0230 (LC); [2015] PLSCS 174, Benedictus v Jalaram Ltd [1989] 1 EGLR 251 and Plintal v 36-48 Edgewood Drive RTM Co Ltd LRX/16/2007; [2008] PLSCS 75 considered.
Margarita Madjirska-Mossop (of Mayfield Law Solicitors, of Ashford) appeared for the appellant; James Castle (instructed by TWM Solicitors LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of The Lough’s Property Management Ltd v Robert Court RTM Co Ltd
