His Honour Judge Dight :
1. this is an appeal from the decision of Deputy District Judge Evans made on 27 August 2009 whereby he held that the claimant was entitled to a new lease of the upper maisonette known as 21A Wotton Road, London NW2 (“the Flat”) pursuant to Chapter II of the Leasehold Reform, Housing and Urban Development Act 1993 (“the ’93 Act”) and made various consequential orders to give effect to his decision. The learned Deputy District Judge held that the Appellant, despite alleging to be an executor and main beneficiary of the estate of his mother, the late Yetta Martha Stanton (“the deceased”), did not have any standing in the claim because there had been no grant of probate of her will and he went on to make orders relying on section 50 of the ’93 Act (the court’s power to make a vesting order where the landlord cannot be found) on the basis that, in effect, the landlord had not been found and the claim was undefended and the estate of the deceased unrepresented.
2. The problem in this case has largely been caused by the fact that notwithstanding the death of the deceased more than 12 years ago the appellant and his co-executors have failed to take a grant of probate to her estate.
3. The Appellant contends that the learned Deputy District Judge was wrong to make the order he did, since he wrongly held that section 50 of the ’93 Act applied, he failed to recognise the Appellant’s true status and he failed to take account of section 18 of the Law of Property (Miscellaneous Provisions) Act 1994 and Rule 19.8 of the Civil Procedure Rules which, it was submitted, contained the appropriate provisions to be applied where a landlord from whom a new lease is sought pursuant to the ’93 Act has died. The appellant concludes by saying that the learned Judge should have dismissed the claim and held that the tenant should have served a notice pursuant to section 42 of the Act if he wished to seek a new lease.
4. The Respondent contends that the learned Deputy District Judge reached the right conclusion for the reasons which he gave.
The factual background
5. The deceased has at all material times been registered at HM Land Registry as the sole proprietor of the freehold interest in
6. The deceased passed away on 29 December 1997. The death certificate dated 29 December 1997, a copy of which is attached to the claim form, identifies the Appellant as the person who informed the registrar of his mother’s death, described him as her son and stated his usual address.
7. By her will dated 27 August 1997 the deceased appointed the appellant and a Dr Lawrence Shaw as her executors and trustees and, after a small number of pecuniary bequests, left her estate to the appellant for life and thereafter to her grandchildren. As I have already mentioned, no grant of probate has been taken in respect of the estate. It is accepted by the appellant that he had not produced a copy of the will to the respondent prior to the commencement of proceedings although there had been correspondence between the parties.
8. By his claim form issued in Barnet County Court the claimant sought a vesting order pursuant to section 50 of the ‘93 Act and an order that the premium for the new lease be determined by the Leasehold Valuation Tribunal. In the claim form itself it is said that “The claimant has through his solicitors traced Anthony Trevor Stanton who has stated that he is entitled to apply for a grant of probate in relation to his mother’s estate but that no grant has been taken out.”
9. The claim form names as the defendants the personal representatives of the deceased and gives the appellant’s correct address as the place for service of the proceedings.
10. Because the tenant took the view that his landlord could not be found he had not initiated the usual process provided in Chapter II of the ’93 Act for the acquisition of a new lease of a flat by serving a notice under section 42 of the Act. Such a notice would have, inter alia, specified the premium which the tenant proposed paying and the terms which he proposed for the new lease. It would also have triggered an obligation on the part of the landlord to serve a counter-notice if he did not accept that the tenant had a right to a new lease or disagreed with the premium or terms which had been proposed. Failing agreement proceedings could have been taken. Instead the tenant started these proceedings seeking a vesting order.
11. The claim came on before the learned Deputy District Judge who, apparently having heard from the solicitor for the respondent and from the appellant, who produced the will to him. He held, inter alia, as follows:
“… I have suggested that I do not know how the claimants have brought this action on you because you were not properly constituted as personal representative. That is you at the moment do not have any standing in this action. That is where I started off. I have effectively taken the view that it is proper to proceed in the manner in which they have proceeded because your mother has passed away, unfortunately, therefore, the landlord is currently unknown and so section 50 applies and I am satisfied that it applies and I am satisfied that this order, therefore is the proper order. If you believe otherwise then you ought to do what you should have done some time ago and I am sure you have your own reasons. You should have made an application for a grant of probate. The moment you have got an occasion for a grant of probate you can take part in the litigation. You can apply to be joined as a defendant and you can do whatever you want. Until then Mr Stanton, my view stands. ”
12. Criticism is made of the fact that the transcript included in the appeal bundle is inadequate because it is plain from the extract quoted above that the learned Deputy District Judge had already expressed part of the reasons for his conclusions earlier in the course of argument and that therefore a transcript of the entire hearing should have been before me on appeal. It is undoubtedly true that the learned Deputy District Judge appears to have indicated his views on the merits of the appellant’s stance prior to the passage which I have quoted but in my judgment the transcript with which I have been provided contains sufficient of his reasoning for me to understand the true basis for his decision. His reasons must have been that because the landlord had passed away and there had been no grant of probate the landlord could not be found or his identity could not be ascertained (per section 50(1)(b) – see below).
13. By his order the learned Deputy District Judge, effectively, declared that the respondent was entitled to a new lease of the Flat, in the form which the respondent had proposed. His ancillary orders provided for the grant of the new lease to be made via a vesting order “of the Defendant’s interest in the premises” (sic) and execution of the new lease by a District Judge of the Court on payment into court of a price to be determined by a surveyor to be selected by the President of the Lands Tribunal, after deduction of the respondent’s costs of the proceedings. In other words, the estate was effectively prevented from taking part in the process by which the terms and price for the new lease were to be arrived at.
Locus to appeal
14. As a preliminary point it was submitted that by virtue of the reasoning of the Court of Appeal in George Wimpey UK Ltd v Tewkesbury BC [2008] 3 All ER 859 the definition of “appellant” in CPR 52.1(3)(d) is wide enough to embrace a non-party in the position of the appellant who may be adversely affected by the proceedings. On behalf of the respondent it was not strenuously argued otherwise. In any event I would hold, in the absence of agreement, that because of his status as executor of the deceased’s estate the appellant has locus by virtue of the provision of the CPR mentioned above, as explained by the George Wimpey case, to challenge the outcome of these proceedings in the court below by way of appeal.
A vesting order?
15. A vesting order is defined by section 51(1) of the Act as
“an order providing for the surrender of the tenant’s lease of his flat and for the granting to him of a new lease of it on such terms as may be determined by a leasehold valuation tribunal to be appropriate with a view to the lease being granted to him in like manner…as if he had, at the date of his application, given notice under section 42 of his claim to exercise the right to acquire a new lease of his flat.”
16. Section 50 of the ’93 Act, which is headed “Applications where landlord cannot be found”, provides, insofar as material, as follows:
“(1) Where –
(a) a qualifying tenant of a flat desires to make a claim to exercise the right to acquire a new lease of his flat, but
(b) the landlord cannot be found or his identity cannot be ascertained,
the court may, on the application of a tenant, make a vesting order under this subsection.
(2)…
(3) The court shall not make an order on any application under subsection (1)…unless it is satisfied –
(a) that on the date of the making of the application the tenant had the right to acquire a new lease of his flat; and
(b) on that date he would not have been precluded by any provision of this Chapter from giving a valid notice under section 42 with respect to his flat.
(4) Before making any such order the court may require the tenant to take such further steps by way of advertisement or otherwise as the court thinks proper for the purpose of tracing the person in question; and if, after an application is made for a vesting order under subsection (1) and before any lease is executed in pursuance of the application, the landlord is traced, then no further proceedings shall be taken with a view to a lease being so executed, but (subject to subsection (5))-
(a) the rights and obligations of all parties shall be determined as if the tenant had, at the date of the application, duly given notice under section 42 of his claim to exercise the right to acquire a new lease of his flat; and
(b) the court may give such directions as the court thinks fit as to the steps to be taken for giving effect to those rights and obligations, including directions modifying or dispensing with any of the requirements of this Chapter or regulations made under this Part.
(5) An application for a vesting order under subsection (1) may be withdrawn at any time before execution of a lease under section 51(3) and, after it is withdrawn, subsection (4)(a) above shall not apply; but where any step is taken (whether by the landlord or the tenant) for the purpose of giving effect to subsection (4)(a) in the case of any application, the application shall not afterwards be withdrawn except –
(a) with the consent of the landlord, or
(b) by leave of the court,
and the court shall not give leave unless it appears to the court just to do so by reason of matters coming to the knowledge of the tenant in consequence of the tracing of the landlord.”
17. The appellant submits, first, that section 50, on its proper construction, is not applicable to a situation where an identified landlord is known to have died. Secondly, it is submitted that the statutory criteria contained in subsection 50(1)(b) were not satisfied, because identities and addresses of the personal representatives of the deceased were readily ascertainable from the terms of the documents and correspondence available to the respondent. Thirdly, it is submitted that where a landlord has died, as opposed to disappeared, machinery is to be found in section 18(1) of the Law of Property (Miscellaneous Provisions) Act 1994 and Rule 19.8 of the Civil Procedure Rules for the service of an initial notice under section 42 of the ’93 Act and for the constitution of proceedings prior to the grant of probate. Therefore, it is said, there is no lacuna in the ’93 Act relating to deceased landlords which has to be filled by the use of section 50.
18. The respondent submits that sections 50 and 51 of the ’93 Act provide a complete and concurrent scheme for acquisition of a new lease, separate and distinct from that provided by section 42, and entirely apposite to a situation where a landlord has died but no grant of probate has been obtained. Secondly it is submitted that prior to grant the statutory criteria of section 50 are satisfied in this case and that once satisfied the court has jurisdiction to make a vesting order. As to the appellant’s third submission it is said that section 18 of the ’94 Act is permissive only; it is a saving provision of general application and merely plugs a gap where there may not be someone to accept notices and proceedings and would not fulfil the intended function of section 42 which is to identify and engage a party with whom to negotiate over the terms of grant of a new lease.
19. The respondent further submits that where 12 years after the death of the landlord probate has still not been sought “a court would need fairly compelling evidence to conclude that the appropriate legal identity could now be ascertained and that there was not some other reason connected with IHT avoidance, fraud etc.” That led to the further submission that the learned Deputy District Judge was not entitled to conclude that the appellant was the personal representative and was therefore correct to hold that the personal representative were unidentified and/or untraceable.
20. Turning first, therefore, to the proper construction of section 50. The words which lie at the heart of this dispute are to be found in subsection 50(1)(b): “the landlord cannot be found or his identity cannot be ascertained”. Unless that condition is satisfied section 50 has no application. Prior to death the landlord was both identified and her address known. The question is whether death renders both (or either) of those criteria uncertain. The section does not specifically refer to death. Further, as a matter of logic, it seems to me that it does not follow that because a landlord has died that his successor in title as landlord cannot be identified or found. Title will devolve in one of the usual ways on the landlord’s personal representatives. So long as those personal representatives can be identified and found it seems to me that the condition in subsection 50(1)(b) cannot be satisfied.
21. The respondent submits, however, that the situation is different where, as here, there has been no grant of probate, because until that point the identity of the personal representatives is uncertain. So far as property left by will is concerned, it seems to me that such a submission is ill-founded. An executor’s title to real property derives from the will, not the grant of probate, and the property of the deceased vests in him from the moment of the testator’s death (see Whitmore v Lambert [1955] 2 All ER 147 per Sir Raymond Evershed MR at p.151 and following). Insofar as the learned Deputy District Judge may, by necessary inference, have held otherwise he was, in my judgment, wrong.
22. The routes to the grant of a new lease contained in sections 50 and 42 are said by the appellant, in reinforcement of his primary submission, to be mutually exclusive. The respondent disagrees and suggests that they provide concurrent routes to the grant of a new lease. The terms of subsections 51(1) and 50(3)(b), (4) and (5) not only contemplate a situation where a notice under section 42 has not been served on the landlord but could not be given, either because the landlord could not be identified or found. Moreover subsection 50(4) provides, in effect, that where a landlord is traced part way through the vesting order process that process is to come to an end and the usual route for grant of a new lease followed. I agree with the appellant that the whole structure of section 50 is predicated on the inability of the tenant to serve a notice under section 42 and that therefore in my judgment it follows that if it is possible to serve a notice under section 42 there is no room for the operation of section 50.
23. The question then arises as to whether in the instant case the statutory criteria of section 50(1)(b) are, properly construed, satisfied. While I have great sympathy with the respondent’s submissions on this point it seems to me that production of the will to the court was sufficient evidence of the appellant’s title, in which respect I would again refer to the judgment of the Master of the Rolls in the Whitmore case in which he held that there need not be a grant of probate before the court can receive evidence of the existence of a will or its contents. In those circumstances the will should, in my judgment, have been accepted as evidence of the title of the appellant and his fellow executor upon which the learned Deputy District Judge should have come to the conclusion that, as a matter of fact, the necessary condition for the operation of section 50 were not made out.
24. Turning next to the machinery said to have been operable in the circumstances. Section 18 of the Law of Property (Miscellaneous Provisions) Act 1994 provides, insofar as material, as follows:
“(1) A notice affecting land which would have been authorised or required to be served on a person but for his death shall be sufficiently served before a grant of representation has been filed if –
(a) it is addressed to “The Personal Representatives of” the deceased (naming him) and left at or sent by post to his last known place of residence or business in the
(b) a copy of it, similarly addressed, is served on the Public Trustee.”
(2)…
(3) The method of service provided for by this section is not available where provision is made-
(a) by or under any enactment, or
(b) by an agreement in writing,
requiring a different method of service, or expressly prohibiting the method of service provided for by this section, in the circumstances.”
25. The learned editors of Hague on Leasehold Enfranchisement (5th Ed) apparently express their view on this issue, without any comment, at paragraph 34-17 as follows:
“Service on a dead landlord
If the landlord is dead, a notice, eg section 13 or section 42 notice, is sufficiently served before a grant of representation has been filed if it is addressed to “The Personal Representatives of” the deceased (naming him) and left at or sent by post to his last known place of residence or business in the United Kingdom, and a copy of it similarly addressed, is served on the Public Trustee: section 18(1) of the Law of Property (Miscellaneous Provisions) Act 1994…”
26. Taking the words of section 18 at face value, they are entirely apt in this case, and set out a procedure which could have been followed by the tenant in order to serve a notice under section 42 of the ’93 Act. I have been taken to nothing in the ’93 Act itself which would have the effect, in accordance with subsection 18(3)(a), of prohibiting the method of service contained in section 18(1) from being used in this case. The fact that the provision is of general application or is “saving” in nature does not alter its applicability or relevance. In my judgment even though the respondent appears to have had the correct details for the executors and could have served a notice under section 42 on them in the usual way it was open to him also to use the machinery afforded by section 18 of the ’94 Act. It follows that I also agree with the submission that there is no lacuna in the ’93 Act relating to the service of notices on personal representatives which section 50 was intended to fill.
27. Once proceedings were in contemplation, subject to the filing of notices and counter-notices, the appropriate defendants would have been the executors. However, in this case it plainly would have been open to the Deputy District Judge to appoint the appellant to represent the estate on the application of the respondent pursuant to CPR 19.8(2)(b) and in my judgment the respondent should have so applied and the learned Judge should have made an order appointing the appellant to represent the estate of the deceased.
The premium
28. In paragraph 5 of his grounds of appeal the appellant asserts, and the respondent now accepts, that the learned Deputy District Judge erred in directing that the premium for the new lease be fixed by a surveyor selected by the President of the Lands Tribunal and the premium for the new lease (and the terms) should have been referred for determination by the Leasehold Valuation Tribunal.
Conclusion
29. For the reasons which I have given above I would hold that section 50 of the ’93 Act has no application in this case, that the learned Deputy District Judge misdirected himself in reaching his conclusions, and that his order ought to be set aside. In its place I would appoint the appellant to represent the estate of the deceased and dismiss the claim with costs.
