A right to manage claim can be exercised in respect of a self-contained part of a building which is itself capable of subdivision into further self-contained parts
In Assethold Ltd v Eveline Road RTM Company Ltd [2023] UKUT 26 (LC), the upper tribunal considered whether 36 Eveline Road, Mitcham CR4 3LE constituted premises under s72 of the Commonhold and Leasehold Reform Act 2002 such that a notice to acquire the right to manage the property was valid.
Section 72 applies to premises which comprise a self-contained building or part of a building. Under ss2, a building is self-contained if it is structurally detached. Under ss3, a part of a building is self-contained if: (a) it constitutes a vertical division of the building; and (b) the structure of the building is such that it could be redeveloped independently of the rest of the building and relevant services provided to occupiers are provided independently of the rest of the building or could be provided without significant interruption to the rest of the building.
The property had the appearance of a pair of semi-detached houses. The western part of the property contained flats A and B, and in the eastern part there were a further two flats (C and D). It stood at the eastern end of and formed part of a terrace of houses. It was not a self-contained building but part of a building which contained other parts of the building.
A notice to acquire the RTM was served in respect of the property. Incorrectly, the FTT did not consider the physical tests set out in s72 when it concluded that the property was qualifying under the 2002 Act, and the FTT decision was accordingly set aside by the upper tribunal, which went on to rehear the RTM application.
The UT held that there was nothing in the RTM provisions in the 2002 Act which supports the argument that an RTM claim could not be made in respect of a self-contained part of a building which itself contains a self-contained part or parts of the same building.
The judge in Ninety Broomfield Road RTM Co v Triplerose Ltd [2015] EWCA Civ 282; [2015] EGLR 51 was considering the practical problems that could arise if an RTM claim could be made in respect of different blocks of flats, especially where tenants in a minor block could find themselves saddled with an unwanted management regime – it did not mean that a property could not be the subject of an RTM claim because a property could be subdivided.
Further, although 41-60 Albert Palace Mansions (Freehold) Ltd v Craftrule Ltd [2011] EWCA Civ 185; [2011] 2 EGLR 35 concerned collective enfranchisement under the 1993 Act, the observations by Smith LJ that there was nothing to suggest that the right attached only to the smallest possible self-contained part held force.
Elizabeth Haggerty is a barrister
