Leasehold enfranchisement –– Leasehold Reform Act 1967 –– Enfranchisement notice –– Failure to provide required particulars –– Failure to identify lease or provide rateable value information and details of occupation –– Whether failure to provide particulars an “inaccuracy” not invalidating notices
Each of the appellant tenants held a long lease of a dwelling-house. Each served a notice of claim under the Leasehold Reform Act 1967 seeking to acquire the freehold of their respective houses. The respondent landlords contended that the notices failed to contain certain particulars specified by para 6 of Schedule 3 to the Act, and were therefore invalid. The particulars failed to identify the dates of the respective leases and, in two cases, the correct names of the parties. The rateable values of the houses on the appropriate day, sufficient to show that the rent was at a low rent, were also not given. No information was given in box 6 of the prescribed form of notice of claim about the tenants’ periods of residential occupation of the houses, and no information was given in boxes 7 and 8 concerning applicable financial limits and the relevant valuation provision of the Act. The landlords’ contentions were accepted in the court below, and the county court judge granted declarations that the notices were invalid. The tenants appealed.
Held: The appeal was dismissed. The notices were invalid. The knowledge that the landlords may have had was largely irrelevant for considering the adequacy of the notices. There was a mandatory requirement under para 6 of Schedule 3 to the Act that a notice of claim should contain certain specified particulars. However, the failure to provide the correct details of the relevant leases would not, alone, have invalidated the notices; the landlords could have interpreted and understood the information given having regard to Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57. The failure to provide details of the rateable values of the respective houses was an “inaccuracy” within the meaning of para 6(3) of Schedule 3, and did not invalidate the notices. However, the failure to provide details of the periods of residential occupation in box 6 was a failure to provide core information, which the landlords would not necessarily have known, and which was crucial to the claim to enfranchise. There had been a complete failure to provide the information required in boxes 7 and 8.
The following cases are referred to in this report.
Byrnlea Property Investments Ltd v Ramsay; sub nom 33 Byrne Road, Balham, Re [1969] 2 QB 253; [1969] 2 WLR 721; [1969] 2 All ER 311; 20 P&CR 528
Cresswell v Duke of Westminster [1985] 2 EGLR 151; (1985) 275 EG 461; [1985] RVR 144
Dymond v Arundel-Timms [1991] 1 EGLR 109; [1991] 21 EG 107; (1990) 23 HLR 397, CA
Hankey v Clavering [1942] 2 KB 326; [1942] 2 All ER 311, CA
John Lyon’s Free Grammar School v Secchi; sub nom Keepers and Governors of John Lyon Grammar School v Secchi (2000) 79 P&CR D10; [1999] 3 EGLR 49; [1999] 49 EG 100; (2000) 32 HLR 820; [2000] L&TR 308
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; [1997] 2 WLR 945; [1997] 3 All ER 352; [1997] 1 EGLR 57; [1997] 24 EG 122; [1997] 25 EG 138, HL
York v Casey [1998] 2 EGLR 25; [1998] 30 EG 110, CA
This was an appeal by the respondents, Jane Rush Dalziel, Ernest Lascelles and Jenny McCormick, from a decision of Mr Recorder James Allen QC, sitting in Newcastle upon Tyne County Court, in proceedings by the applicant landlords, Speedwell Estates Ltd and Covent Garden Group Ltd, for declarations.
Nigel Gerald (instructed by Brown Holliday & Clements, of North Shields) appeared for the appellants; Jodie James-Stadden (instructed by Grove Tompkins Bosworth, of Birmingham) represented the respondents.
Giving judgment, RIMER LJ said:
1. These appeals are against three orders made on 29 August 2000 by Mr Recorder James Allen QC in Newcastle upon Tyne County Court. They were made in three separate actions, each raising the same issue. The applicants in each action are Speedwell Estates and Covent Garden Group Ltd (the landlords). The respondents to each action are Jane Dalziel, Ernest Lascelles and Jenny McCormick respectively (the tenants). Each is a tenant of the landlords, holding a house under a long lease at a low rent. They claimed to be entitled to acquire the freeholds of their houses under the provisions of Part I of the Leasehold Reform Act 1967, as amended (the 1967 Act), and they each served a notice of their desire to do so. The landlords asserted that the notices failed in material respects to satisfy the statutory requirements for such notices and were invalid, and they sought declarations that the tenants were not entitled to acquire the freeholds. The judge agreed with the landlords and made such declarations. The tenants accept that there were imperfections in their notices, but they have argued on these appeals that the judge was in error in holding them to be invalid.
2. The houses are 4, 12 and 24 Carlisle Terrace, West Allotment, Newcastle upon Tyne. The terrace (or a material part of it) was originally in the common ownership of WR Lamb, CB Lamb and E Eccles (the original lessors), and these and other houses in it were constructed at the beginning of the last century by a Mr Taylor (the builder).
3. Mrs Dalziel’s tenancy of no 4 is under a lease dated 30 November 1900 made between (1) the original lessors, (2) the builder and (3) F Routledge, as lessee. That lease granted a tenancy of the houses at 3 and 4 Carlisle Terrace for a term of 99 years from 1 July 1900 at an annual rent of 14 shillings (70 pence). At some point the leasehold interest was split, and, by an assignment of 31 July 1959, the leasehold
4. Mr Lascelles’s tenancy of no 12 is under a lease dated 1 October 1901 made between (1) the original lessors, (2) the builder, and (3) G Wilson, as lessee. That lease granted a tenancy of the houses at 12 and 13 Carlisle Terrace for the same term and rent. Again, the leasehold interest was later split, and, by an assignment of 7 September 1964, the leasehold interest in no 12 was vested in Mr and Mrs Lascelles as joint tenants subject to an apportioned annual rent of 7 shillings.
5. Mrs McCormick’s tenancy of no 24 is under a lease dated 18 October 1901 made between (1) the original lessors, (2) the builder, and (3) T Carmichael, as lessee. That lease granted a tenancy of the houses at 24 and 25 Carlisle Terrace for the same term and rent. Again, the leasehold interest was later split, and, by an assignment of 23 October 1967, no 24 was vested in Mr and Mrs McCormick as joint tenants at an apportioned annual rent of 7 shillings. Mr McCormick died on 1 May 1978 and Mrs McCormick became the sole surviving tenant.
6. The landlords acquired the freehold reversions on the three tenancies in July 1996.
7. Each tenancy was a long tenancy at a low rent within the meaning of Part I of the 1967 Act. The tenants had occupied their houses as their residences for 30 years or more and were, in principle, each entitled under Part I to acquire their freeholds on fair terms. They each wanted to do so. Section 8 of the 1967 Act entitled them to give to the landlords “written notice of his desire to have the freehold…”. If they gave such notice, then:
except as provided by this Part of this Act the landlord shall be bound to make to the tenant, and the tenant to accept, (at the price and on the conditions so provided) a grant of the house and premises for an estate in fee simple absolute, subject to the tenancy and to tenant’s incumbrances, but otherwise free from incumbrances.
8. Section 5 shows that the consequence of the service of a valid such notice is to give landlord and tenant mutual rights in the nature of those arising under a contract of sale.
9. Part II of Schedule 3 to the 1967 Act contains the “Procedural Provisions” governing the service of notices. Paragraph 6 provides as follows:
(1) A tenant’s notice under Part I of this Act of his desire to have the freehold or an extended lease of a house and premises shall be in the prescribed form, and shall contain the following particulars ––
(a) the address of the house, and sufficient particulars of the house and premises to identify the property to which the claim extends;
(b) such particulars of the tenancy and, in the case of a tenancy falling within section 4(1)(i) of this Act, of the rateable value of the house and premises as serve to identify the instrument creating the tenancy and show that
(i) (apart from the operation, if any, of the proviso to section 4(1) of this Act) the tenancy is and has at all material times been a long tenancy at a low rent;
…
(c) the date on which the tenant acquired the tenancy;
(d) the periods for which since the beginning of the preceding ten years and since acquiring the tenancy the tenant has and has not occupied the house as his residence, together with the following additional particulars about the periods for which during the time he has so occupied the house, that is to say, ––
(i) what parts, if any, of the house have not been in his own occupation and for what periods; and
(ii) what other residence, if any, he has had for what periods, and which was his main residence
(e) in the case of a tenancy falling within section 1(1)(a)(ii) of this Act, the premium payable as a condition of the grant of the tenancy.
(1A) Where the tenant gives notice by virtue of section 1AA of this Act, sub-paragraph (1) above shall have effect with the substitution for paragraph (b) of ––
(b) such particulars of the tenancy as serve to identify the instrument creating the tenancy and show that the tenancy is one in relation to which section 1AA(1) of this Act has effect to confer a right to acquire the freehold of the house and premises;
(2) Where the tenant gives the notice by virtue of section 6 or 7 of this Act, sub-paragraph (1)(c) and (d) above shall apply with the appropriate modifications of references to the tenant, so that the notice shall show the particulars bringing the case within section 6 or 7.
(3) The notice shall not be invalidated by any inaccuracy in the particulars required by this paragraph or any misdescription of the property to which the claim extends; and where the claim extends to property not properly included in the house and premises, or does not extend to property that ought to be so included, the notice may with the leave of the court, and on such terms as the court may see fit to impose, be amended so as to exclude or include that property.
10. On 24 July 1998, Mr Lascelles served a notice on the landlords of his desire to exercise his rights under Part I of the 1967 Act to have the freehold of no 12. The notice was prepared by solicitors, who used Form 1 as prescribed by regulation 3(1) of the Leasehold Reform (Notices) Regulations 1997. Form 1 is “the prescribed form” for the purposes of para 6(1) of Schedule 3, although the combined effect of regulations 2 and 3(1) of the 1997 Regulations is that tenants can use either Form 1 or “a form substantially to the same effect”.
11. the tenant of various information. The first six paragraphs are directed towards the provision of the particulars required by para 6(1) of Schedule 3. In order to avoid confusion with references to Schedule 3, I shall refer to the paragraphs in the schedule to Form 1 as “boxes”.
12. Box 9 has no application to Mr Lascelles’s case (or to any of the cases) and it was correctly marked “Not applicable”. Of the other eight boxes, there is no dispute that boxes 1, 2 and 5 were completed correctly: the answers identified the house, the property to which the claim extended and the date when Mr Lascelles acquired his tenancy. The judge held that there were deficiencies in the particulars provided in boxes 3, 4, 6, 7 and 8. I shall later have to refer specifically to each of these boxes and the information provided in them.
13. On 21 October 1998, the landlords served on each tenant a notice terminating their tenancies on 1 July 1999 and proposing a new assured monthly periodic tenancy at a rent of £225 per month and otherwise on the terms of their existing leases. Those notices were served under para 4(1) of Schedule 10 to the Local Government and Housing Act 1989. Paragraph 7 of the notices informed the tenants of their right under Part I of the 1967 Act to serve, within two months, a notice of their desire to acquire the freehold, in which event the landlords’ notice would be of no effect.
14. Mr Lascelles’s notice under Part I had, of course, by then already been served, but Mrs Dalziel’s and Mrs McCormick’s notices were both served on 27 November 1998, that is, within the two-month period permitted by the landlords’ notices. Their notices were prepared by the same solicitors who had prepared Mr Lascelles’s notice, and were in substantially the like form and suffered from like deficiences. It is agreed that if the tenants’ notices were invalid and the landlords’ notices were valid, then the result is that all three tenants have finally lost their right to acquire the freeholds. The tenants argued before the judge that the landlords’ notices were invalid. The judge rejected that argument, and Mr Nigel Gerald, for the tenants, has not questioned that in this court. The only issue argued on this appeal was as to the validity of the tenants’ notices.
15. The argument that they were invalid can be shortly expressed. Schedule 3 requires that a tenant’s notice under Part I of the 1967 Act “shall be in the prescribed form, and shall contain” certain specified particulars. Paragraph 6(3) of Schedule 3 provides that “any inaccuracy” in such particulars will not invalidate the notices, so that perfection is not mandatory. However, it is said that the tenants’ errors cannot fairly be characterised as mere inaccuracies. It is said that the particulars in their notices failed to identify the instrument creating their tenancies, failed to provide any information as to the rateable values of the houses on the appropriate day sufficient to show that the rent was a low rent, and failed to provide particulars as to the tenants’ occupation of the houses. In addition, although Schedule 3 does not in terms require
16. Mr Gerald submitted to the judge, and repeated in this court, that the decision of the House of Lords in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749* requires a more benevolent interpretation of the tenants’ notices. That case concerned a lease dated 11 March 1992 for a term of 10 years from 13 January 1992. By clause 7(13), the tenant had a right to break the lease “by serving not less than six months’ notice in writing on the landlord or its solicitors such notice to expire on the third anniversary of the term commencement date”. That anniversary was 13 January 1995. The tenant wished to break the lease and served a notice stating that: “Pursuant to clause 7(13) of the lease we as tenant hereby give notice to you to determine the lease on 12 January 1995”. In identifying 12 January, rather than 13 January, the tenant had mistakenly assumed that the relevant anniversary was 12 January. The question was whether the notice was valid. The judge held that it was, relying on a point I need not describe, but which both the Court of Appeal and the House of Lords held was unsound. The Court of Appeal reversed the judge, regarding themselves as bound by Hankey v Clavering [1942] 2 KB 326, a decision of this court to the effect that, as Lord Greene MR said at p329, break notices “must on their face and on a fair and reasonable construction do what the lease provides that they are to do”. The court rejected the argument that if, by a slip, the notice named the wrong date, the court could substitute the correct one.
* Editor’s note: Also reported at [1997] 1 EGLR 57
17. The House of Lords, by a majority, allowed the tenant’s appeal and overruled Hankey v Clavering. It did not do so on the basis that a notice given for 12 January was sufficiently close to what clause 7(13) required. It did so on the basis that, construing the notice objectively against the background of the terms of the lease under which it was given, it was obvious to a reasonable landlord familiar with the lease that the reference to 12 January was a mistaken reference to 13 January, that it was that date that the tenant really meant to identify in his notice, and that it was that date that the landlord would have understood him as identifying. It is, however, important to emphasise that the House of Lords was not saying that anything less than proper compliance with the terms of a contractual break clause would be sufficient to effect the break. As Lord Hoffmann said at p776:
If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to determine the lease. But the condition in clause 7(13) related solely to the meaning which the notice had to communicate to the landlord.
The opinion of the majority was that it had adequately communicated that meaning and so had satisfied clause 7(13).
18. Mr Gerald submitted that a similar approach should be adopted in considering the tenants’ notices in this case. In general terms, his point was that if the reasonable recipient of them, with a knowledge of the background facts against which they were served, would derive from them all the information that is required to be conveyed by the prescribed form, then there is no sound basis for an assertion that they were invalid. In this case, the landlords knew the relevant background facts relating to these leases, and the reasonable recipient is taken to know the facts that the landlords knew. Mr Gerald placed particular reliance upon the fact that the landlords’ own notices of 21 October 1998 showed that they knew that the tenancies were long tenancies at low rents, which, he said, was relevant in considering how the notices subsequently served by Mrs Dalziel and Mrs McCormick ought to be interpreted.
19. The judge rejected the submission that the principles of interpretation explained in Mannai provide any assistance in considering the validity or otherwise of notices served under Part I of the 1967 Act. He founded this upon his view that those principles apply only to notices served pursuant to contractual and common law rights, but not to those served under a statutory regime. He said:
39. It must be borne in mind that the purpose of a Notice under a break-clause in a lease is only that of informing the landlord that the tenant has decided to determine the lease in accordance with the rights reserved whereas the purposes of a tenant’s notice, served under Part 1 of the Leasehold Reform Act 1967 are:––
(1) to provide the landlord with notification by the tenant of the exercise of the latter’s statutory right to acquire the freehold of the relevant property (or an extended lease);
(2) to provide the landlord with the information to enable the landlord to decide whether to admit the tenant’s claim and to process the same;
(3) to bind both the tenant and the landlord to the transfer by the latter to the former of the freehold upon the terms of the conditions of sale prescribed by the Lord Chancellor.
40. Tenant’s Notices, under Part 1 of the 1967 Act, are, in my view, in a different category from Notices under break-clauses in leases. The form and content of the former are prescribed by statutory regulations and statute whereas the form and content of Notices, under break-clauses in leases, are not. Further, the purposes served by tenant’s Notices under the 1967 Act differ, both in nature and extent, from the purposes of Notices served under break-clauses in leases. For these reasons, I reject Mr Gerald’s submission that the opinions of their Lordships, expressed in Mannai, apply to and govern the Respondents’ Notices served under Part 1 of the Leasehold Reform Act 1967. In my opinion, the case of Mannai, and the opinions expressed by their Lordships therein, are confined to Notices prescribed by contract and common law. They do not extend to Notices prescribed by Statute or by statutory regulation. That being so, the authorities upon the construction, validity and effect of tenant’s Notices under Part 1 of the 1967 Act decided prior to the expressions of opinions in Mannai, have not been overturned and remain good law.
20. Quite apart from such authority as there is on the point, I would not myself go the whole way with the judge in his view that Mannai is of no assistance in considering the validity or otherwise of notices served under a statutory provision. Mannai was about the correct approach to the interpretation of notices served unilaterally by one person on another, being notices intended to affect their legal relations. It is true that it was concerned only with a notice served pursuant to a right created by contract. I do, however, have difficulty with the notion that rules applying to the interpretation of notices of that sort can have no application to the interpretation of notices served pursuant to some statutory right. Subject to the caveat I mention below, I cannot see why, in principle, different rules of interpretation should apply.
21. In fact, there is authority on the point, to which the judge did not have the benefit of being referred. York v Casey [1998] 30 EG 110* is a decision of this court in which the Mannai principles were applied to the construction of a prescribed form of notice served under section 20(1)(c) of the Housing Act 1988; and in John Lyon’s Free Grammar School v Secchi [2000] L&TR 308†, this court appears to have accepted that the Mannai principles are also applicable to notices served under the Leasehold Reform, Housing and Urban Development Act 1993.
* Editor’s note: Also reported at [1998] 2 EGLR 25
† Editor’s note: Also reported at [1993] 3 EGLR 49
22. Having expressed my own view, and referred to those authorities, I would nevertheless regard it as incautious to attempt to express any general conclusion as to the application of Mannai to the interpretation of notices served under a statutory regime. This is because, as Peter Gibson LJ pointed out in York at p27:
one should bear in mind that in a statutory context there may be requirements which have to be observed and without which a notice will be invalid. But the same may be true in the case of a contractual context.
Taking due note of the first part of that, I consider that the better approach is to look at the particular statutory provisions pursuant to
23. In the particular circumstances of these cases, I take the view that, save perhaps for one aspect of the notices, there is no scope for enlisting the Mannai principles. Mr Gerald’s argument in this respect was to a material extent to the effect that, at the time of the service of the notices, the landlords already knew all the facts about the leases entitling the tenants to acquire the freeholds under the 1967 Act. He said in his written argument that, to the extent that the prescribed form merely required the tenant to identify “sufficient” particulars so as to identify various matters, it therefore mattered not that the tenants did not provide all the particulars they might have done if the landlords had not known the facts. He said, for example, that the landlords already knew the rateable values of the houses and so were able to understand the basis upon which the notices asserted that the tenancies were at a low rent even though the notices did not identify the relevant rateable values. He said that, given knowledge of this sort, the landlords were well able to understand the notices. He said that a reasonable recipient given the like knowledge would also do so, and that it followed that the approach of the court in Mannai supported the conclusion that the notices provided all the information they needed to.
24. In my judgment, that approach to the present problem is unsound. First of all, I do not accept that the sufficiency or otherwise of the particulars required to be provided by the prescribed form of notice used in cases such as the present can, or should, be assessed by reference to the extent of the landlords’ actual knowledge of the facts. It is likely that in many cases the landlords will already know some of the information required to be provided by Form 1 –– for example, details of the relevant lease, and that it is a long lease at a low rent –– and that the provision of information about this in the prescribed form may well tell them little they do not already know. The point, however, is that there is nothing optional about the information required to be contained in a tenant’s notice under Part I of the 1967 Act. Schedule 3 provides that it “shall be in the prescribed form, and shall contain the following particulars…”. Those are mandatory requirements, and if the tenant wants his notice to be a valid one, he must comply with them. If he does not, then he runs the risk that his notice will not do the statutory work he requires of it. The purpose behind the provision of the particulars that the prescribed form requires is to inform the landlord of the nature and basis of the tenant’s claim, and as to the basis upon which any price is to be assessed. As Slade LJ said at p113 in Dymond v Arundel-Timms [1991] 1 EGLR 109:
The purpose of the legislature in requiring a tenant to supply the information set out in para 6(1) is plainly to assist the landlord in deciding what course to adopt in response to the tenant’s notice.
25. Second, I anyway do not regard Mannai as supporting Mr Gerald’s approach. The House of Lords did not suggest that anything less than full compliance with clause 7(13) would operate to effect a valid operation of the break clause in that case. The majority held that, on the true construction of the break notice, it had been validly operated: it communicated the information that the clause required. Similarly, in cases such as this one, if the tenant is to exercise his Part I rights validly, he has to serve a notice in the prescribed form containing the mandatory particulars. If, and to the extent that, he does not provide those particulars, it is no answer that it does not matter because the landlord already knows them. In principle, subject only to the saving effect of para 6(3) of Schedule 3 with regard to inaccuracies in the information provided, any omissions either will, or may, be fatal to the validity of the notice.
26. What are the principles to be applied in determining whether a notice served under Part 1 of the 1967 Act is valid? There is not very much authority on this. We were referred to Byrnlea Property Investments Ltd v Ramsay [1969] 2 QB 253, in which this court held that a notice under Part I that asked for “the freehold or an extended lease” (and so omitted to delete the estate that the tenant did not want) was fatally defective. The court held that a notice in such an uncertain form could not give rise to the statutory contract provided for by section 5 of the Act. I do not find that authority of direct assistance for present purposes, since it was not concerned with any mistakes or omissions in the particulars provided in support of the application. I should, though, refer to the comments of Edmund Davies and Phillimore LJJ at pp267E and 268F respectively, where they said:
Finally, in my judgment, it is not without significance that Schedule 3, para 6(3) provides that: “The notice shall not be invalidated by any inaccuracy in the particulars… or any misdescription of the property to which the claim extends,” whereas no such indulgence relaxes the insistence under para 6(1) that the tenant’s notice “shall be in the prescribed form.”
Under subsection (3) of paragraph 6 it is provided inter alia that, “The notice shall not be invalidated by any inaccuracy in the particulars required by this paragraph…” The clear inference is that some other error may invalidate the form.
27. Of more direct assistance for present purposes is Cresswell v Duke of Westminster [1985] 2 EGLR 151. I have earlier set out the requirements of para 6(1)(d) of Schedule 3, and, in that case, the tenant’s notice stated that there had been no periods during the previous 10 years when he had not occupied the house as his residence, whereas he had in fact lived in Paris for six months. Nor did he say that he had another residence, a cottage owned by his mother, although there was no suggestion that that was his main residence. As para 6(1)(d) required him to provide this information, it was argued that his failure to do so was fatal to the validity of his notice. Sir John Donaldson MR referred to para 6(3) of Schedule 3 –– providing that ‘any inaccuracy in the particulars’ will not invalidate the notice –– and then said at p152B:
Mr Neuberger says that that paragraph does not help Mr Cresswell, because this is not an inaccuracy; it is a complete omission. I think that that involves a misconstruction of para 6(3), because it is talking about inaccuracies in the particulars as a whole. The fact that there is an omission in part of the particulars does create an inaccuracy in the particulars as a whole. A failure to give any particulars at all would not, I should have thought, have been an inaccuracy in the particulars as a whole; it would simply be an omission. The notice having been given substantially correctly, I do not think there is anything in the argument that a distinction can be drawn between partial omission and inaccuracies. But there is undoubtedly a problem as to what is meant by ‘any inaccuracy’. Mr Wood for the tenant boldly states that it really does not matter: anything that is accurate fully complies with the statute; anything that is inaccurate, whether it is due to fraud, innocent misrepresentation or negligence is all just an inaccuracy. For my part, I am not prepared to accept that for one moment.
In this case let it be made absolutely clear that there is no question of fraud, bad faith or anything of that sort. We do not have to decide whether it was negligence: we do not even know whether it was Mr Cresswell himself who filled the form in. All we do know is that the notice did not represent the facts in the respects that I have mentioned. The learned county court judge said that this was an inaccuracy within the meaning of the paragraph and should not invalidate the notice. For my part, I entirely agree with that view. It may be that there is a line to be drawn, but I would hesitate to define it. During the argument Neill LJ drew my attention to the fact that the words “any inaccuracy in the particulars required by this paragraph” are followed by “any misdescription of the property”, and I would agree with the suggestion that both phrases are concerned with the same degree of deviation from full accuracy.
In the end I suspect that a court has to ask itself: “Looking at the facts as they were and what was stated in the notice, can this fairly be said to be an inaccuracy, or is it simply a notice which does not on a fair view relate to the facts?” Where we draw the line I do not know, and I doubt whether it is in anybody’s interests that I should attempt to draw that line. Many cases will answer the question themselves on their own facts.
28. That case was about two partial omissions in the particulars provided by the tenant in his response to one of the boxes, which operated to
29. Turning to the present cases, I consider that the correct approach is to consider the manner in which the tenants responded to each box in Form 1, and then to form an overall view as to whether, paying due regard to para 6(3) of Schedule 3, the notices can fairly be regarded as satisfying the mandatory requirements of that schedule. The argument before this court was advanced primarily by reference to Mrs Dalziel’s notice, although the points raised by the other notices in the other cases are not identical. I shall, however, also refer primarily to the Dalziel notice.
30. Turning to that notice, box 1 asked for the address of the house, which was provided correctly. Box 2 asked for particulars of the house and premises sufficient to identify the property to which the claim extended, and that too was answered correctly.
31. Box 3 required: “Particulars of the tenancy of the house and premises sufficient to identify the instrument creating the tenancy and to show that the tenancy is and has at the material times been a long tenancy, or treated as a long tenancy”. That information was required by para 6(1)(b) of Schedule 3. The response was: “A lease of 99 years from 1 July 1900 made between (1) [the original lessors] (2) [the builder] (3) Thomas Carmichael at an apportioned rent of 35 pence (seven shillings) reserved thereby”. That did not identify the date of the lease and it was in error in identifying Mr Carmichael as being the original lessee, rather than Mr Routledge. Mr Lascelles’s notice gave a similarly inaccurate identification of the instrument creating his tenancy. He too gave no date for it and simply identified it as a lease for 99 years from 1 July 1900 between: “(1) [the original lessors] and (2) [the builder]”. He failed to point out that there was also another party to the lease, namely Mr Wilson, the original lessee. Mrs McCormick’s notice made a slightly better effort in answering box 3. Her response was similar to Mrs Dalziel’s, but she at least identified the correct parties to the lease.
32. The judge’s view was that the combined effect of the omission of the dates of the leases and of the misnaming of the parties to them (although the latter point did not apply to Mrs McCormick’s case, a distinction the judge did not make) was sufficiently fundamental to invalidate the notices. Miss Jodie James-Stadden, for the landlords, did not overplay her hand on this point during the argument before us, and I find myself in disagreement with the judge on this aspect of the case. I accept that the attempted identification of the leases was performed incompetently. But it should also be borne in mind that the responses to boxes 1 and 2 had correctly identified the property the subject of the box 3 tenancy. In addition, the notices were served on the landlords of these properties, who must, in my view, be taken to be familiar with the leases to which they were respectively subject. I consider that, in each case, the application of the Mannai principles does justify the conclusion that the reasonable landlord would interpret the combined sense of the imperfect information in boxes 1 to 3 as identifying the leases respectively dated 30 November 1900, 1 October 1901 and 18 October 1901. The landlords may have been puzzled by the identification of the wrong lessee in the Dalziel notice and by the omission to identify any lessee in the Lascelles notice, and the omission to identify a date for any of the leases was unhelpful. But I nevertheless consider that, overall, the inaccurate information provided was at least sufficient to enable the landlords to identify the correct leases. The property had been identified in boxes 1 and 2, and the term of 99 years from 1 July 1900 was correctly identified in each case, as were the original lessors. It is unlikely that those lessors would have granted leases of any of the properties for identical terms to two different people, and I conclude that the landlords would have interpreted the tenants’ responses to box 3 as sufficiently identifying the instruments creating the relevant tenancies.
33. Box 4 asked for:
(a) Particulars of the tenancy of the house and premises sufficient to show that the tenancy is and has at the material times been a tenancy at a low rent, or treated as a tenancy at a low rent. OR (b) If your claim is based on section 1AA (additional right to enfranchisement only in case of houses whose rent exceeds applicable limit under section 4), particulars of the tenancy sufficient to show that the tenancy is one in relation to which section 1AA has effect to confer a right to acquire the freehold of the house and premises.
Mrs Dalziel’s response was “(a) and (b) as above”, and Mr Lascelles’s and Mrs McCormick’s responses were the same. I interpret them as meaning that the answer to both subparagraphs of the request is to be found in the answers to box 3, in particular in their references to the apportioned rent being 35 pence a year.
34. In fact, the tenants should not have answered both subparagraphs, which are alternatives. They should only have answered the applicable one, box 4(a), and should have indicated that box 4(b) was inapplicable. The judge held that their answer was anyway inadequate, because although it identified the rent as 35 pence, it did not provide the information necessary to show that it was a “low rent”. To do this, it was necessary also to identify the rateable value of the house on the appropriate day, 23 March 1965, and so show that the rent was less than two-thirds of it: see section 4 of the 1967 Act. He held that the omission to refer to the relevant rateable value was a fatal omission, and that it was no answer that the landlords already knew it, because there was an obligation to provide this information. Miss James-Stadden supported that view. Mr Gerald’s written submission was that the omission to refer to the rateable value was immaterial because the landlords already knew it, and the provision of the information as to the rent was therefore sufficient to show that the rent was a low rent. Alternatively, he said that its omission was a mere inaccuracy covered by para 6(3) of Schedule 3.
35. A rent of 35 pence is, by any standards, a low rent, although what box 4(a) is directed to ascertaining is whether it is a “low rent” within the meaning of section 4 of the 1967 Act, and I agree that that does require a comparison of it with the rateable value of the properties on the appropriate day. But, during the argument, the point was raised as to whether box 4(a) does in fact require the provision of information about the rateable value. All it asks for is: “Particulars of the tenancy of the house and premises sufficient to show that the tenancy is and has at the material times been a tenancy at a low rent…”. The rateable value of a house is not accurately described as a particular “of the tenancy” of the house: it is a particular of the house itself, and on a natural reading of box 4(a) there appear to be no words in it that require the provision of information about rateable value. On one view, all that they ask of the tenant is that he should identify the rent, from which it would then be easy to ascertain whether it is a “low rent”. These tenants did identify the rent. On the other hand, para 6(1)(b) of Schedule 3 plainly does require the tenant to provide particulars of the rateable value. The problem is that, whereas box 4 might be expected to ask for that information, it does not appear to do so. Both counsel agreed with that.
36. In my view, that state of affairs poses a difficulty. The tenants’ responses to box 4 do not provide the information they were required to provide pursuant to para 6(1)(b) of Schedule 3, but I consider that they can be said to provide the rather more limited information apparently being sought by box 4. I would be reluctant to hold that a tenant who correctly provided the particulars sought by the prescribed form, being particulars falling short of those required by Schedule 3, had thereby caused his Part I notice to suffer from a fatal omission. It cannot be the case that a tenant using the prescribed form is expected to check it against para 6(1) of Schedule 3 in order to see that it asks for all the information that Schedule 3 requires. I consider that the prudent tenant answering box 4 would certainly be well advised also to identify the rateable value of the house and premises. These tenants did not do that, but, in the circumstances, I consider that, if this was an error at all, it ought to be regarded as an “inaccuracy” within para 6(3), which does not invalidate the notice. I find it all the easier to come to that conclusion bearing in mind that it is anyway a near certainty that 35 pence was less than two-thirds of the relevant rateable value.
37. Box 5 asked for “The date on which you acquired the tenancy”, which each tenant answered correctly. Their answers showed that they had each acquired them at least 30 years earlier.
38. Box 6 asked for particulars of:
The periods for which, in the last ten years and since acquiring the tenancy, you have and have not occupied the house as your residence; and the following particulars about any such periods during which you have occupied the house as your residence:–– (a) what parts (if any) of the house have not been in your own occupation and for what periods; and (b) what other residence (if any) you have had and for what periods, and which was your main residence.
Mrs Dalziel simply answered: “(a) and (b) Not applicable”. So did Mrs McCormick. Mr Lascelles answered it with an “N/A” against the body of the main question, and with a further “N/A” against box 6(b).
39. The information sought by box 6 is among the most important the tenant has to provide. It is essential to his right to enfranchise that he should have occupied the house as his main residence for the three years preceding his notice, or for periods amounting to three years in the last 10: see section 1(1)(b) and (2) of the 1967 Act. Unlike much of the other information asked for in the prescribed form, information about this will relate to factual matters that, in many cases, will not be within the landlords’ knowledge. Box 6 therefore requires the tenant to set out the facts by which he claims to make out his case under section 1(1)(b) and (2), and the purpose of this is so that the landlords can consider those facts, investigate them and, if so advised, challenge them. In Dymond, at p114E, Ralph Gibson LJ said as follows, with reference to the information that box 6(b) seeks as to any “other residence”, but I regard the point he there made as applying likewise to the box 6 information generally:
The legislative purpose of the requirement must be, as Slade LJ has already said, to cause the applicant who has more than one residence to inform the landlord of the other residence –– other, that is, than the house the subject-matter of the application –– so that if the landlord wishes to do so, the landlord may investigate the facts so as to be able to test, and it may be to demonstrate, the inaccuracy of the assertion that the house the subject-matter of the application has indeed been occupied as the main residence of the applicant during the relevant period. The obligation to give particulars of the other residence is not qualified in the statute by reference to any necessary significance, or frequency of habitation of that residence.
40. Taking first Mr Lascelles’s response to box 6, I regard its sense as being that he had had no other residences (which was untrue, since other information shows that as from 6 July 1998 he did have another residence, although one he said was not his main residence), but otherwise as providing none of the information asked for in the main body of box 6 and in its subpara (a).
41. The other two notices were slightly more forthcoming. They responded to box 6 by asserting that “(a) and (b) [were] not applicable”, but otherwise added nothing more about Mrs Dalziel’s and Mrs McCormick’s respective periods of occupation of their houses. In particular, they did not answer the opening questions in box 6 as to the periods during which, in the preceding 10 years, they respectively had and had not occupied their houses as their residence. Mr Gerald submitted that, on a fair interpretation of their responses, it was implicit that they had been in occupation throughout the preceding ten years. My views on that submission have wavered, but I have concluded that it is incorrect. The most that the responses can fairly be regarded as saying is that during such unspecified periods as the tenants had occupied their houses, they had occupied the whole of them, and they had had no other residences. But the responses do not provide any information as to the periods of occupation or non-occupation during the preceding 10 years. It may be an inference that it is likely that they had been in occupation during the whole of that period, but it is not a necessary inference. Box 6 was asking for specific information about the period, or periods, of the tenant’s occupation that information is crucial, but neither Mrs Dalziel nor Mrs McCormick made any attempt to provide it.
42. In the circumstances, I take the view that the tenants’ answers to box 6 cannot be regarded as containing mere inaccuracies. I regard the shortcomings in their answers to this box as quite different in character from the tenant’s shortcomings in Cresswell. In that case, the tenant provided the main substance of the information required by box 6, but did so inaccurately. In this case, I consider that the tenants failed to provide the main substance of the information that box 6 required of them, and so failed to provide particulars crucial to their claim to enfranchise.
43. Turning finally to boxes 7 and 8, these required the following:
7. Additional particulars sufficient to show that the value of the house and premises does not exceed the applicable financial limit specified in section 1(1)(a)(i) or (ii), (5) or (6) of the Act. (These are not required where the right to have the freehold is claimed in reliance on any one or more of the provisions in section 1A, 1AA or 1B of the Act).
8. Additional particulars sufficient to show whether the house and premises are to be valued in accordance with section 9(1) or section 9(1A) of the Act. (These are not required where the right to have the freehold is claimed in reliance on any one or more of the provisions in section 1A, 1AA or 1B of the Act.)
44. Each tenant simply responded to each box by asserting it to be “Not applicable”. The natural meaning of that is that the tenants did not need to provide any such particulars because their case was a section 1A, 1AA or 1B one. In fact, that is not their case, nor does anything in their notices suggest otherwise, and so they did need to provide the requested particulars. In response to box 7, they needed to show that the rateable value of their houses did not exceed the limit referred to. In response to box 8, they needed to show whether it was a section 9(1) or a 9(1A) case. They made no attempt to do either. Paragraph 6(1) of Schedule 3 does not in terms require the provision of this information, but it does require the use of the prescribed form, and that form requires this information. Therefore, the tenants had to provide it. They did not.
45. Having reviewed the tenants’ notices, the judge asked himself: “Are they substantially in the prescribed form?”. He concluded that it was clear that they were not. He concluded that the omissions were not mere inaccuracies for the purposes of para 6(3) of Schedule 3. He held that the notices were invalid.
46. Although I have not agreed with all the judge’s views about the notices, I agree with his overall conclusion that they were invalid. In my view, there were material omissions in the information provided in response to boxes 6, 7 and 8, and I am unable to regard those omissions as mere inaccuracies in the particulars as a whole. In Cresswell, Sir John Donaldson MR said at p152C:
A failure to give any particulars at all would not, I should have thought, have been an inaccuracy in the particulars as a whole; it would simply be an omission. The notice having been given substantially correctly, I do not think there is anything in the argument that a distinction can be drawn between partial omission and inaccuracies.
47. I do not interpret Sir John Donaldson as meaning that the only type of omission that could be committed would be if no particulars at all were to be provided. If, for example, these tenants had simply filled in box 1 and had left boxes 2 to 9 blank, I have little doubt that their failures in that respect would have amounted to omissions invalidating the notices. By contrast, if they had correctly completed all the boxes apart from, say, box 8, which they had left blank, I would be reluctant to conclude that that omission was fatal to the validity of the notices. I would, I consider, be strongly inclined to the view that the requirements of para 6(1) had been substantially, and sufficiently, complied with, although that particular example is not this case, and I am not to be taken as expressing any decided view upon it.
48. The present cases fall within those two extremes. I am fully sensitive to Sir John Donaldson’s observations as to the difficulty in defining what is meant by “any inaccuracy” in para 6(3), but I have concluded that the failure by these tenants to provide the core information required by box 6 amounted to an omission, and not to a mere inaccuracy. Moreover, for reasons given, I regard it as an omission of information of crucial importance. I also regard the complete failure to provide any proper answers to boxes 7 and 8 as constituting omissions of information that the prescribed form required to be provided. In the
49. Overall, I consider that the consequence of the omissions to which I have referred is that none of the tenants’ notices was in substantially the correct form, and none can be said to have substantially satisfied the mandatory requirements of Schedule 3. I have not agreed with the entirety of the judge’s reasoning, but I agree with his conclusion. I would dismiss the appeals.
50. MAY LJ agreed and did not add anything.
Also agreeing, PILL LJ said:
51. I also agree with the conclusion of the judge and for the reasons given by Rimer J.
52. Part I of the Leasehold Reform Act 1967 (the 1967 Act) confers upon tenants of houses held on long leases at low rents a right in certain circumstances to acquire on fair terms the freehold of the house and premises. Not surprisingly, given the importance of the right and the implications for a landlord of its exercise, procedural provisions were enacted to regulate the service of tenants’ notices and the particulars to be contained in them: see para 6 of Schedule 3 to the 1967 Act.
53. Occupation of the house as the tenant’s residence for a prescribed period is a basic prerequisite of the existence of the right (section 1(1) of the Act), and it is also not surprising that the tenant is required by the provisions of the schedule to give information about his occupation of the house. There is an inbuilt and specific protection for the tenant in para 6, in that subpara (3) provides that the tenant’s notice:
shall not be invalidated by any inaccuracy in the particulars required by this paragraph or any misdescription of the property to which the claim extends.
54. The statutory scheme does, in my judgment, require a serious attempt to be made by or on behalf of the tenant to provide the particulars required in para 6 if the notice is to be valid and effective. An inaccuracy or misdescription is not to invalidate, but that specific provision does not undermine, but rather underlines, the need to provide, at least to the best of the tenant’s ability, the particulars from which it can be assessed whether the statutory right to enfranchisement exists. As Phillimore LJ stated in Byrnlea Property Investments Ltd v Ramsay [1969] 2 QB 253 at p268, the clear inference from para 6(3) is that some error other than inaccuracy “may invalidate the form”.
55. The principles to be applied were considered in this court in Byrnlea and in Cresswell v Duke of Westminster [1985] 2 EGLR 151, both cited by Rimer J. The facts in those cases were very different from those in the present case. The defect in the notice in Byrnlea was fundamental in that it did not specify whether the freehold or an extended lease was required. The defect in Cresswell was at the other end of the spectrum, in that there were ample particulars, albeit that some of them were inaccurate. In both cases, however, the reasoning appears to me to be founded upon a belief that basic particulars must be given if the notice is to be valid and capable of being relied upon.
56. In that context, I agree with the analysis of Rimer J on the present facts, and his conclusions in paras 47 to 49. No serious attempt was made to provide in the notices the information required by the statutory scheme. The omissions included, as Rimer J has put it, the core information required by box 6 of the prescribed form and a complete failure to provide any answers to boxes 7 and 8. Moreover, the omission cannot, in my view, be cured by the techniques of interpretation contemplated and applied in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749.
57. I agree that the appeal should be dismissed.
Appeal dismissed.
