Landlord and tenant – Commonhold and Leasehold Reform Act 2002 – Right to manage – Respondent RTM company applying to acquire such right – Respondent’s claim notice sent to appellant landlords by post – Whether invalid for failing to specify date not earlier than one month after giving of notice for submission of landlord’s counternotice as required by section 80(6) – Whether notice “given” when posted or received – Whether notice saved from invalidity by provisions of section 81(1) regarding inaccuracies in particulars – Appeal allowed
The appellants were the trustees of a charity that owned the freehold of a property containing 27 flats, most of which were let on long leases. The respondent was a company formed for the purpose of an application, on behalf of the lessees, to acquire the right to manage the property under the Commonhold and Leasehold Reform Act 2002. On 16 July 2009, the respondent posted a notice of claim to the appellants under section 79 specifying a date of 16 July for the submission of any counternotice by them. In their counternotice, the appellants raised the point that the notice of claim was invalid because it did not comply with the requirement in section 80(6) of the Act to specify, as the date by which the counternotice was to be submitted, a date not earlier than one month after the “relevant date”, which, by section 79(1), was the date on which notice of claim was “given”.
The claim was referred to the leasehold valuation tribunal (LVT). The respondent contended that it was valid because it had allowed one month from the date on which the notice was posted, that being the date the notice was “given” for the purposes of sections 79(1) and 80(6). The appellants contended that the relevant date was that on which the notice was, or was deemed to have been received or served. The respondent further submitted that even if the appellants were correct on that point, the notice would be valid by virtue of the provision in section 81(1) that a claim notice was not invalidated by an inaccuracy in any of the particulars required by section 80.
Finding in favour of the respondent, the LVT held that: (i) the word “give” did not have a clear-cut meaning; (ii) it could plausibly refer to the date on which the notice was posted; and (iii) since there was no evidence that the appellants had been prejudiced by not having a later date specified for the counternotice, the respondent’s claim should be regarded as valid. The appellants appealed.
Decision: The appeal was allowed.
Under section 79(1), notice of the claim had to be “given” to the landlord and, by section 111(1), any such notice could be sent by post. Where an Act authorised a document to be served by post, service was deemed, by virtue of section 7 of the Interpretation Act 1978, to have been effected at the time the letter would have been delivered in the ordinary course of the post. The same applied where the expression used in the statute was “give” rather than “serve”: Keepers and Governors of John Lyon Grammar School v Secchi [1999] 3 EGLR 49; [1999] 49 EG 100 applied.
Accordingly, the respondent’s notice had not been “given” to the appellants until 17 July 2009, when it would have been received in the ordinary course of post. In specifying 16 July as the date for response, it did not comply with the requirements of section 80(6). That could not be regarded as an “inaccuracy” in the particulars so as to save the notice from invalidity on an application of section 81(1). As a matter of construction, section 81(1) applied only to those requirements that were specifically called “particulars”, namely those in section 80(4) and (8), and did not apply to any of the other subsections, including subsection (6): Cadogan v Morris [1999] 1 EGLR 59; [1999] 04 EG 155 applied. The respondent’s claim notice was not valid and the respondent was therefore not entitled at the relevant date to acquire the right to manage the property.
The appeal was determined on written representations.
Sally Dobson, barrister
