Right to manage – Commonhold and Leasehold Reform Act 2002 – Claim notice – Section 80(6) and (7) of 2002 Act – Claim notice specifying 30 September as date under s80(6) by which landlord to give counternotice and 31 December as date under s80(7) on which RTM company to acquire right to manage – Whether claim notice invalid for failure to specify date for acquisition of right to manage “at least three months after” date specified for giving of landlord’s counternotice – Correct approach to calculating three-month period
The appellant was an RTM company formed by lessees of flats in a property in Kenley, Surrey, for the purpose of acquiring the right to manage that property pursuant to Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002. In late August 2013, the appellant gave a claim notice to the respondent landlord under s79 of the 2002 Act. In accordance with s80(6), the notice indicated that the respondent was to serve any counternotice by 30 September 2013. The notice further specified that the appellant intended to acquire the right to manage on 31 December 2013.
The first-tier tribunal held that the claim notice was invalid since the date specified for the acquisition of the right to manage was not “at least three months after that specified under subsection (6)” as required by s80(7). It held that the inclusion of the word “after” in s80(7) meant that the date had to be after 31 December 2013, which was three calendar months from the date specified under s80(6), ignoring that day in calculating the period; accordingly, 1 January 2014 was the earliest date that could have been specified under s80(7). The appellant appealed.
Held: The appeal was allowed. The simple and long-established rule for calculating a period of months after the giving of a notice is that the period ends on the corresponding date in the appropriate subsequent month, namely the day of that month with the same number as the day of the earlier month on which the notice was given. Using that method of calculation, the date specified under s80(7) had to be “after” midnight on 30-31 December 2013. Specifying 31 December 2013, which was after midnight on 30 December, as the date on which to acquire the right to manage therefore satisfied the requirements of s80(7) of the 2002 Act so that the claim notice complied with s80. It followed that the claim notice was valid and an effective to exercise the right to manage.
This was an appeal by the appellant, Windermere Court Kenley RTM Co Ltd, from a decision of the first-tier tribunal dismissing a claim against the respondent, Sinclair Gardens Investments (Kensington) Ltd, to acquire the right to manage premises pursuant to Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002.
The appeal was determined on the written representations of the appellant; the respondent did not make representations.
Decision:
Introduction
1. The appellant appeals against the 5 March 2014, decision of the First-Tier Tribunal Property Chamber (Residential Property) (“FFT”) refusing its application for the appointment of a manager under the Commonhold and Leasehold Reform Act 2002 (the “2002 Act”) in respect of which the Deputy President of this tribunal granted permission to appeal by way of review on 19 June 2014, following refusal of permission to appeal the FFT on 14 April 2014. There have been no written representations from the respondent.
2. The facts can be shortly stated and are not in dispute. On 29 August 2013, the appellant RTM company gave a claim notice to the respondent under s79(6) of the 2002 Act, specifying that the respondent must respond to it by giving a counter-notice by 30 September 2013, that it intended to acquire the right to manage the subject premises on 31 December 2013.
3. Section 80 of the 2002 Act prescribes the contents of the claim notice. There are two material provisions for these purposes:
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“80(6) |
It [the claim notice] must specify a date, at least one month after the relevant date, by which each person who was given the notice under section 79(6) may respond to it by giving a counter-notice under section 84. |
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80(7) |
It [the claim notice] must specify a date, at least three months after that specified under subsection (6), on which the RTM company intends to acquire the right to manage the premises.” |
4. For these purposes, “the relevant date” is the 29 August 2013, when the claim notice was given, and the 30 September 2013, is the date specified under s80(6). The dispute is whether or not the 31 December 2013, specified date satisfied the requirements of s80(7) or whether the earliest date it could have been was 1 January 2014.
5. The FFT held that the claim notice was invalid and so dismissed the application because the 1 January 2014, was the earliest date which could have been specified under s80(7). Having cited and sought to apply the leading authority of Dodds v Walker [1981] 2 All ER 609 (HL), which I shall refer to in a moment, the kernel of the decision is to be found in para 10:
“10. Accordingly the date of 30th September 2013 at s80(6) should have led to a date of not earlier than 1st January 2014 in s80(7), this being ‘a date, at least three months after that specified under subsection (6)’. The inclusion of the word ‘after’ means that the date must be after 31st December 2013, being three calendar months from the date contained at s80(6), ignoring that day in calculating the period.”
6. It is the appellant’s case that this was wrong, and a misapplication of the corresponding date rule as expounded in Dodds where Lord Diplock said at pp610f-611a (only the first paragraph of which was cited and purportedly applied by the FFT):-
“My Lords, reference to a ‘month’ in a statute is to be understood as a calendar month. The Interpretation Act 1978 says so. It is also clear under a rule that has been consistently applied by courts since Lester v Garland (1808) 15 Ves 248 [1803-13] All ER Rep 436 that, in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or a specified number of months after the giving of a notice the general rule is that the period ends on the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.
The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month. Because the number of days in five months of the year is less than in the seven others the inevitable consequence of the corresponding date rule is that one month’s notice given in a 30-day month is one day shorter than one month’s notice given in a 31-day month and is three days shorter if it is given in February. Corresponding variations in the length of notice reckoned in days occurs where the acquired noticed is a plurality of months.
This simple general rule, which Cockburn CH in Freeman v Read (1863) 4 B&S 174 at 184, 122 ER 425 at 429 described as being ‘in accordance with common usage… and with the sense of mankind’, works perfectly well without need for any modification so long as there is in the month in which the notice expires a day which bears the same number as the day of the month on which the notice was given. Such was the instant case and such will be every other case except for notices given on the 31st of a 31-day month and expiring in a 30-day month or in February, and notices expiring in February and given on 30th or 29th (except in leap years) of any other month of the year. In these exceptional cases, the modification of the corresponding date rule that is called for is also well established: the period given by the notice ends on the last day of the month in which the notice expires.”
7. Lord Russell of Killowen said at pp611f-612c:
“My Lords, it is common ground that in this case the period of four months did not begin to run until the end of the date of the relevant service on 30th September, i.e. at midnight 30th September-1st October. It is also common ground that ordinarily the calculation of a period of a calendar month or calendar months ends on what has been conveniently referred to as the corresponding date. For example, in a four-month period, when service of the relevant notice was on 28th September, time would begin to run at midnight 28th-29th September and would end at midnight 28th-29th January, a period embracing four calendar months. It is to be observed that the number of days in the four-month period in that example is in one sense inevitably limited by the fact that September and November each contains but 30 days. But the application of the corresponding date principle inevitably produces variation in the number of days involved, depending on the date on which a four-month notice is served and the irregular allotment of days to different months. Sometimes it is not possible to apply directly the principle, for instance if a four-month notice is served on 30th October (the time beginning to run at midnight 30th-31st October), there being in February but 28 (or 29) days it is not possible to find a corresponding date in February and plainly a corresponding date cannot be sought in March; the application of the corresponding date principle in such case can only lead to the termination of the four-month period at midnight 28th February-1st March (or midnight 29th February-1st March in a leap year). That is an inevitable outcome.
Bridge LJ in his dissenting judgment in this case adopted a simple stance. Time he said (correctly) began to run at midnight 30th September-1st October. Stretching ahead were the four calendar months of October, November, December and January; the tenant was allowed the whole of those four calendar months including the whole of 31st January; therefore the application made on 31st January was made in time. I am with respect unable to accept this departure from the corresponding date principle simply because the period starts to run at the outset of the first of a month; a departure from the sound and well-established rule is not required in that one instance, as it is required in the example given of there being no corresponding date in February. For the tenant it was submitted that Templeman LJ had fallen into the error of including the whole of 30th September in the period. I am clearly of opinion that the language used by him was not to that effect.
Accordingly I am of opinion that the corresponding date principle is applicable in this case, that the four-month period expired at midnight 30th-31st January, and that the application made on 31st January was out of time and could not be entertained. Consequently I also would dismiss this appeal.”
8. It is, in my judgment, plain from these opinions that the application of the corresponding date rule in this case requires that the date must be ‘after’ midnight on 30th-31st December 2013 from which it follows that specifying the date as being the 31st December 2013 (being ‘after’ midnight on 30th-31st) satisfied the requirements of s80(7) so that the claim notice complied with the provisions of s80 of the 2002 Act.
9. Where the FFT fell into error was in not treating the start-time as midnight on 30th-31st December, and not applying the long-established rule of common usage and great simplicity that the corresponding date in the following month or months is to be used as the date of calculation particularly where, as here, there is one. In this case, the first day three months “after” the 30th September was the 31st December. That was the effect of the decision in Dodds itself, albeit that it concerned determining that “four months after the giving of landlord’s notice” on 30th September was 31st January under s29(3) of the Landlord and Tenant Act 1985.
10. Whilst the Dodds concerned the provisions of the Landlord and Tenant Act 1985, there is no suggestion that the corresponding date rule should not be applied to interpretation of the 2002 Act. In this regard, the words of Lord Diplock at p611b-c (emphasis supplied) are apposite and equally applicable to the provisions of the 2002 Act:
“My Lords, I do not personally derive assistance from pursuing metaphysical arguments about attributing to the one day or the other the punctum temporis between 2400 hrs on 30th September and 0000 hrs on 1st October at which time began to run against the tenant. These seem to me quite inappropriate to the determination of the meaning of a statute which regulates the mutual rights of landlords and tenants of all business premises and is intended to be understood and acted on by them. It refers to periods to be reckoned in months and was passed at a time when the corresponding date rule had been recognised for more than a century as applicable in reckoning periods of a month after the occurrence of a specified event.“
11. For those reasons, I allow the appeal and hold that the claim notice was valid and an effectual to exercise of the right to manage.
Appeal allowed
