UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2015] UKUT 236 (LC)

UTLC Case Number: LRX/125/2014

 

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

LANDLORD AND TENANT – service charges – Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002 – right to manage – claim notice specifying ‘the premises’ – section 80(2) – effect of including land which could not be part of the claim – function of section 81(1) – interpretation of claim notice – appeal dismissed

 

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE

THE FIRST TIER TRIBUNAL PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

 

BETWEEN MILTONLAND LIMITED

Appellant

And

 

PLATINUM HOUSE (HARROW) RTM CO LTD

Respondent

Re: Platinum House,

Lyon Road,

Harrow

Middlesex

HA1 2EX

Before: His Honour Judge Stuart Bridge

Sitting at: Royal Courts of Justice, Strand, London WC2A 2LL

on

29 April 2015

 

Anthony Radevsky instructed by Brethertons LLP for the Appellant

Margarita Mossop for the Respondent

© CROWN COPYRIGHT 2015

 

 

The following cases are referred to in this decision:

 

Albion Residential Ltd v Albion Riverside Residents RTM Co Ltd [2014] UKUT 6 (LC)

Assethold Ltd v 15 Yonge Park RTM Co Ltd [2011] UKUT 379 (LC)

Assethold Ltd v 14 Stansfield Road RTM Co Ltd [2012] UKUT 262 (LC)

Cadogan v Morris [1999] 1 EGLR 59

Gala Unity Ltd v Ariadne Road RTM Co Ltd [2011] UKUT 425 (LC)

Gala Unity Ltd v Ariadne Road RTM Co Ltd [2012] EWCA Civ 1372, [2013] 1 WLR 988

Malekshad v Howard de Walden Estates Ltd (No 2) [2003] EWHC 3106 (Ch), [2004] 1 WLR 862

Moskovitz v 75 Worple Road RTM Co Ltd [2010] UKUT 393

Natt v Osman [2014] EWCA Civ 1520, [2015] 1 WLR 1536

Pineview Ltd v 83 Crampton Street RTM Co Ltd [2013] UKUT 598 (LC)

Triplerose Ltd v 90 Broomfield Road RTM Co Ltd [2015] EWCA Civ 282

 

 

 

DECISION

Introduction

1.             Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002 (‘the 2002 Act’) introduced a statutory right to manage which is exercisable, in respect of premises to which the Chapter applies, by a company (an ‘RTM company’) formed by leaseholders specifically for that purpose. Exercise of this right is often highly contentious, and there have been many cases where landlords have challenged its exercise as they are perfectly entitled to do.

2.             Platinum House is a single block of 168 flats in Harrow. Miltonland Limited (‘the appellant’) is the landlord under the leases of the flats. An RTM Company, Platinum House (Harrow) RTM Company Limited (‘the respondent’), was incorporated by those holding leases of flats in the block.

3.             On 6 February 2014, a claim notice (pursuant to section 80 of the 2002 Act) was given to the appellant, thereby initiating a claim on behalf of the respondent to acquire the right to manage the premises. The single issue for determination on this appeal is whether that claim notice was valid. If it was, then the respondent is entitled to the right to manage; if it was not, then it is not.

4.             On 14 March 2014, the appellant replied by its solicitors acknowledging receipt of the claim notice and serving a counter notice (pursuant to section 84 of the 2002 Act).  Although a number of reasons were given in that letter explaining why the claim notice was invalid, only one remains for consideration in this appeal: whether the claim included property, a small yard, which did not fall within the statutory definition of ‘premises’ and whether the inclusion of this property within the claim rendered the claim notice itself invalid.

5.             Application was made by the respondent to the Ft T seeking a determination that it was entitled to the right to manage.  Case management directions were made and, following an inspection of the premises, a hearing took place on 5 June 2014. In determining that the respondent was entitled to the right to manage, the Ft T ruled against the landlord in relation to alleged failures in the participation procedures and in relation to submissions that the building should be excluded on account of its non-residential use. Neither of these issues have been pursued on appeal, permission being granted on 9 December 2014 in respect of three issues, only one of which, as a result of concessions made subsequently by the appellant, remains live. That issue, as described in the grant of permission to appeal, is:

Whether the claim was invalidated by the inclusion of a parcel of land over which the RTM Company was not entitled to acquire the right in the claim notice, and in the description of the premises in the RTM Company’s memorandum and articles of association.

 

6.             Counsel for the appellant was asked by this Tribunal to clarify whether the appeal was being pursued on the basis of the description of the premises in the RTM Company’s memorandum and articles of association. He confirmed that no separate point was made in that respect. As a result, the claim notice has been the sole focus of this appeal.

7.             The claim notice, addressed to the appellant, states, so far as is relevant to the issue in this appeal:

1. PLATINUM HOUSE (HARROW) RTM COMPANY LIMITED (“the company”) of Suite D Eden House, The Office Village, River Way, Uckfield, East Sussex, TN22 1SL, and of which the registered number is 8574808, in accordance with Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”) claims to acquire the right to manage Platinum House, Lyon Road, Harrow and appurtenant property (within the area edged in red on freehold plan NGL88768). (the premises”).

2. The company claims that the premises are ones to which Chapter 1 of the 2002 Act applies on the grounds that the premises a) consist of a self-contained building or part of a building, with or without appurtenant property, b) they contain one hundred and sixty five flats held by qualifying tenants, and c) the total number of flats held by such tenants is not less than two-thirds of the total number of flats contained in the premises.

8.             Although the claim notice referred to the freehold plan, the plan was not appended to the claim form. The ‘area edged in red’ on that plan comprises the building known as Platinum House, its grounds, and a small yard, measuring some 40 square metres, in the extreme north-west corner of the area. It became clear, in the course of argument before me, that there remained issues between the parties concerning both the topography of the area and the actual use made of the yard. Agreement was reached about the topography, but the parties continue to differ on the issue of use, no relevant factual findings having been made in the Ft T. It is accepted that the yard, although not enclosed, has brick walls to its south and east aspects and there is no direct access between the yard and the remainder of the area edged in red, in particular Platinum House. I consider that that is sufficient to enable me to determine this appeal. I should however record the parties’ factual differences which have not been capable of resolution. The appellant contends that the only access into the yard is and has been from the west (that is from the rear of a property, a grocer’s shop, at 298 Station Road) or from the north (by means of a private way from St John’s Road). The respondent contends that there is and has been further direct access to the yard from the adjacent public car park.

9.             The contention of the appellant is that, in seeking to define the premises over which it is entitled to the right to manage, the respondent has included the yard. That is not, says the appellant, property over which it has any such entitlement, and its inclusion in the claim renders the claim notice invalid.

10.         The Ft T dealt with this contention in a single paragraph, headed ‘A defective claim notice?’:

‘[The landlord’s] first objection is that the notice incorrectly refers to land which is not part of the property. Counsel for the landlord did not appear to us to pursue this objection with much vigour at the hearing. We consider that he was right not to do so. The plan submitted to which objection was taken was confirmed by Mr Radley-Gardner [counsel then appearing for the landlord] to be the Land Registry plan for the property. As Ms Mossop [counsel for the RTM company] submits, the claim notice correctly identified the premises and insomuch as it should not have referred to a strip of land this is an inaccuracy that under section 81(1) of the Act can be excused. On the claim notice point, therefore, we prefer Ms Mossop’s submissions. If there was a mistaken reference to land which is not appurtenant this is an inaccuracy that can be excused.’

The statutory provisions and their interpretation

11.         The statutory procedure for the acquisition of the right to manage is initiated by the service (on, among others, the landlord) of a claim notice by the RTM company under section 79(6) of the 2002 Act.

12.         Section 80 makes provision for the contents of the claim notice as follows:

(1) The claim notice must comply with the following requirements.

(2) It must specify the premises and contain a statement of the grounds on which it is claimed that they are premises to which this Chapter applies.

(3) It must state the full name of each person who is both—

(a) the qualifying tenant of a flat contained in the premises, and

(b) a member of the RTM company,

and the address of his flat.

(4) And it must contain, in relation to each such person, such particulars of his lease as are sufficient to identify it, including—

(a) the date on which it was entered into,

(b) the term for which it was granted, and

(c) the date of the commencement of the term.

(5) It must state the name and registered office of the RTM company.

(6) It must specify a date, not earlier than 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.

(7) It 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.

(8) It must also contain such other particulars (if any) as may be required to be contained in claim notices by regulations made by the appropriate national authority.

(9) And it must comply with such requirements (if any) about the form of claim notices as may be prescribed by regulations so made.

13.         In this appeal, the appellant contends that the claim notice failed to comply with section 80(2) in failing to ‘specify the premises’. ‘Premises’ are dealt with by section 72, which provides, so far as is relevant:

(1) This Chapter applies to premises if—

(a) they consist of a self-contained building or part of a building, with or without appurtenant property,

(b) they contain two or more flats held by qualifying tenants, and

(c) the total number of flats held by such tenants is not less than two-thirds of the total number of flats contained in the premises.

(2) A building is a self-contained building if it is structurally detached.

14.         The expression ‘appurtenant property’ is defined in turn by section 112(1) to mean, in relation to a building (or part of a building or a flat)

any garage, outhouse, garden, yard or appurtenances belonging to, or usually enjoyed with, the building or part or flat.

15.         It has been laconically observed in this Tribunal that section 72 has been ‘drafted with such economy of wording as to make its interpretation not entirely clear’ (see Gala Unity Ltd v Ariadne Road RTM Co Ltd [2011] UKUT 425 (LC) (George Bartlett QC). The Court of Appeal has recently decided a particularly intractable issue in holding that ‘premises’ are restricted to a single building, and that an RTM company therefore cannot exercise the right to manage more than one set of premises (see Triplerose Ltd v 90 Broomfield Road RTM Co Ltd [2015] EWCA Civ 282).

16.         More relevant to the current appeal is the relationship between ‘premises’ and ‘appurtenant property’. This was considered and explored in Gala Unity, above. The Tribunal held that the effect of section 72(1)(a) is that, if the ‘self-contained building’ has appurtenant property, the premises for the purposes of the Act consist of the building plus such appurtenant property as the building may have. It followed that ‘the effect of a valid notice is to extend the right to manage to any property appurtenant to the building or part of a building’, the Tribunal observing (with reference to the relevant regulations) that it would be ‘unsatisfactory’ if a claim notice had to specify whether or not it was made in respect of appurtenant property: Gala Unity, above at [14].

17.         One reason for this appears to be the potential breadth of ‘appurtenant property’. As defined by section 112(1), it comprises not only physical land (that is, ‘garages, outhouses, gardens and yards’) but also appurtenances, in other words rights in and over other land. The latter may include incorporeal hereditaments (rights of way were specifically mentioned in Gala Unity at [15]) and such rights may be express or implied. In Gala Unity, the Court of Appeal, upholding the decision of the Tribunal, held that ‘appurtenant property’ is not restricted to land appertaining exclusively to the premises and that it may, for example, include rights enjoyed in common with others whose property is not itself the subject of the right to manage claim: see [2012] EWCA Civ 1372, [2013] 1 WLR 988.

18.         In Pineview Ltd v 83 Crampton Street RTM Co Ltd [2013] UKUT 598 (LC), a claim notice failed to specify whether or not the premises included appurtenant property. It was contended before the Upper Tribunal that the claim notice was in consequence fatally defective as it failed to comply with section 80(2). The Tribunal followed the decision of the Court of Appeal in Gala Unity in interpreting ‘appurtenant property’, acknowledging (at [61]) that it was part of the statutory scheme that more than one party could have management responsibility for such appurtenances and concluding that there was no reason why management functions in relation to the same appurtenant property may not be exercised simultaneously by different RTM companies operating in neighbouring buildings. As a result, the relatively limited purpose of the claim notice was:

‘to identify the premises, but that is sufficiently achieved by identifying each self-contained building to which the claim relates, as was done in Gala Unity. Both the giver and the receivers of the notice know the additional property, if any, which is appurtenant to that building because they are all either parties to the leases of the building which confer rights over the appurtenant property or a tribunal appointed manager of the building. The identification of the building over which RTM is claimed is therefore a sufficient specification of the premises to satisfy the requirement of section 80(2)’ (Pineview at [61]).’

19.         The combined effect of Gala Unity and Pineview is that it is not necessary for the claim notice to state that there is any property appurtenant to the building or part of the building over which the right to manage is claimed, and if reference is made to appurtenant property, it is not necessary to state what that property is. This approach is confirmed by the prescribed form of claim notice (see Schedule 2 to the Right to Manage (Prescribed Particulars and Forms) (England) Regulations 2010 (SI 2010/825)), which only requires that the premises be named: no provision is made for any appurtenant property to be described or referred to, whether by a plan or otherwise (see Pineview at [62]).

The challenge to the claim notice

20.         In this appeal, the claim notice has been challenged on the ground that it includes not only the building (the block of flats referred to as Platinum House) but also the yard described above (see paragraph 7 above). Counsel for the appellant has contended that the claim notice was in respect of the whole of the property in a registered title which included a piece of land (the yard) which was not appurtenant property within section 112(1) and that as a result the claim notice was invalid. Reference has been made in the appellant’s skeleton argument and in the course of oral submissions to the words of the Tribunal in Albion Residential Ltd v Albion Riverside Residents RTM Co Ltd [2014] UKUT 6 (LC) at [44]:

‘If a claim notice is invalid because it relates to a building which is not self-contained, or because it is given by leaseholders who are too few in number or who are not qualifying tenants, or if for any other reason the qualifying conditions set out in section 72 are not satisfied, none of the provisions in the remaining sections of Chapter 1 have any application. The satisfaction of the qualifying conditions is essential to the jurisdiction of the LVT to make a determination of entitlement under section 84(3).’

21.         The point is made by the appellant that there is no saving provision in the 2002 Act in relation to the specification of the premises, and that in this respect it differs from other comparable legislation such as Leasehold Reform Act 1967, Schedule 3, paragraph 6(3) and Leasehold Reform, Housing and Urban Development Act 1993, Schedule 3, paragraph 15. In other words, failure to comply with section 80(2) cannot be excused, the consequence being that the claim notice is invalid and that the claim must fail.

22.         I referred counsel to a recent decision of the Court of Appeal in which the Chancellor of the High Court discussed at some length the approach to be taken when considering whether non-compliance with a statutory provision resulted in invalidity: Natt v Osman [2014] EWCA Civ 1520, [2015] 1 WLR 1536. The case itself concerned a notice claiming collective enfranchisement (pursuant to section 13 of the Leasehold Reform, Housing and Urban Development Act 1993) which failed to give the name and address, and particulars of the lease, of one of the qualifying tenants. The following principles can be extracted from the Chancellor’s judgment (see generally paragraphs [28] to [39] inclusive).

(1) The use of the word ‘must’ (as in section 80(2) of the 2002 Act) does not of itself ‘give any independent indication of the consequences of non-compliance’: although it clearly imposes an obligation, it throws ‘no particular light on whether the legislature intended non-compliance to result in invalidity and nullity’.

(2) In cases where a statute ‘confers a property or similar right on a private person and the issue is whether non-compliance with the statutory requirement precludes that person from acquiring the right in question’- terminology singularly apt to describe the RTM legislation- the court should not adopt the ‘substantial compliance’ approach, that is of examining the gravity and consequences of the particular breach.

(3) Instead, the court is to ‘interpret the notice to see whether it actually complies with the strict requirements of the statute’: if it does not, then the court, as a matter of statutory interpretation, holds the notice to be invalid; if it does, then the notice is valid.

(4) On this approach, consistently with the policy of providing certainty in relation to the existence, acquisition and transfer of property interests, ‘the outcome does not depend on the particular circumstances of the actual parties, such as the state of mind or knowledge of the recipient or the actual prejudice caused by non-compliance on the particular facts of the case’.

(5) The intention of the legislature as to the consequences of non-compliance with the statutory procedures (where not expressly stated in the statute) is to be ascertained in the light of the statutory scheme as a whole. Where the notice (or the information missing from it) is of critical importance in the context of the scheme, then the court will hold in favour of invalidity; where the information missing is of secondary importance or merely ancillary, the court will hold the notice valid.

23.         It is clear to me that it is essential that the parties know the ‘self-contained building’ that being the subject matter of the claim to the right to manage. If there is no objection made to the claim by recipients of the claim notice, the process will result in the right to manage being acquired over that building without any need to resort to a court or tribunal: the default position is therefore that the right will be acquired. The right to manage itself confers on the RTM company functions with respect to services, repairs, maintenance, improvements, insurance and management (see section 96) which have hitherto been functions which the landlord had under the lease. It is obviously important that there is clarity so that the landlord and the RTM company know, once the right has been acquired, the demarcation of their respective responsibilities as far as is possible.

24.         I do not however consider that it is so necessary that the claim notice specifies precisely what the ‘appurtenant property’ is. This is for the reasons elucidated in Pineview above. It should be recognised that to make it an absolute requirement that the claim notice set out all ‘appurtenant property’ when one considers the wide range of rights that potentially fall within the definition of ‘appurtenances’ would be setting intending claimants up to fail. There is, in my judgment, a degree of pragmatism in the approach adopted by the Tribunal in decisions such as Gala Unity and Pineview which I endorse.

25.         In reviewing the statutory context of section 80(2), I must consider the extent to which the legislation itself provides for condonation of certain breaches of the statutory requirements. In this case, the Ft T made reference, when rejecting the appellant’s contention that the claim notice was invalid, to excusing any mistaken inclusion of property by invoking its power to do so conferred by section 81(1). That provision states simply that ‘A claim notice is not invalidated by any inaccuracy in any of the particulars required by or by virtue of section 80.’ The Ft T appeared to be saying that, if property had been included by mistake, that would be an inaccuracy in the particulars required by section 80(2) which would not invalidate the notice.

26.         The appellant challenges this reasoning first as a matter of statutory construction. The appellant contends that, when section 81(1) refers to ‘any of the particulars required by or by virtue of section 80’, it is referring only to those requirements which are expressly described as ‘particulars’ within section 80 itself. This construction would limit the operation of section 81(1) to inaccuracies in the particulars of the leases of the qualifying tenants (section 80(4)) and to inaccuracies in ‘such other particulars’ as may be required to be contained in claim notices by regulations; that is, secondary legislation made under the Act, rather than anything required by the primary legislation- the Act itself (section 80(8)). It would not allow section 81(1) to be invoked in circumstances where there was an inaccuracy in the specification of the premises or the statement of the grounds for the claim, as those requirements are not specifically described as “particulars” in section 80 itself.

27.         This particular construction of section 81(1) was accepted by the Upper Tribunal in Moskovitz v 75 Worple Road RTM Co Ltd [2010] UKUT 393, an unopposed appeal determined on the basis of written representations by its President George Bartlett QC. The Tribunal in Moskovitz followed the decision of the Court of Appeal in Cadogan v Morris [1999] 1 EGLR 59 construing section 42 of the Leasehold Reform, Housing and Urban Development Act 1993. As a result, where a claim notice specified a date for giving any counter-notices which was too early (in breach of section 80(6)), section 81(1) could be of no avail. 

28.         However, in two later decisions, the Tribunal has taken a different view. In Assethold Ltd v 15 Yonge Park RTM Co Ltd [2011] UKUT 379 (LC) Judge Walden-Smith declined to follow Moskovitz, preferring a purposive approach to section 81(1) whereby it could save a claim notice from invalidity in the event of any inaccuracy in complying with any of the requirements laid down by section 80.  In other words, there was nothing special about sections 80(4) and (8); section 81(1) was of wider application than Moskovitz had considered. 

29.         In deciding that section 81(1) could not render valid a claim notice which had given an entirely wrong address of the RTM company’s registered office (in breach of section 80(5)), Judge Walden-Smith emphasised the relative narrowness of ‘inaccuracy’ which she considered was intended to deal with spelling mistakes or typographical errors.  Her decision was followed subsequently by George Bartlett QC in Assethold Ltd v 14 Stansfield Road RTM Co Ltd [2012] UKUT 262 (LC), another determination on written representations, where the President held that he had been wrong in Moskovitz to follow Cadogan v Morris, emphasising (at [14]) that:

‘Under section 81(1) a distinction falls to be drawn between the failure to provide the required particulars and an inaccuracy in the statement of the particulars. A claim notice is saved from invalidity only in the case of the latter. That was the basis of Judge Walden-Smith’s decision in Assethold Ltd v 15 Yonge Park RTM, and I respectfully agree with her approach.’

30.         For myself, I agree with the approach adopted by Judge Walden-Smith for the reasons she gave and for the reasons given by the President in 14 Stansfield Road. I do not consider that where a claim notice clearly includes, within its statement of the premises over which RTM is claimed, land which cannot form part of the claim that can be said to be an inaccuracy in the particulars required by section 80(2). And so, while the appellant has not succeeded in persuading me to adopt the narrow construction of section 81(1) which its counsel advocates, I do accept that, if there had been an error of the magnitude alleged by the appellant, it could not be legitimately excused.

31.         In arriving at that conclusion, I have derived some support from the decision of Neuberger J (as he then was) in Malekshad v Howard de Walden Estates Ltd (No 2) [2003] EWHC 3106 (Ch), [2004] 1 WLR 862. There, a notice of enfranchisement (under the Leasehold Reform Act 1967) identified the property to which the claim extended as ‘the whole of the premises demised by the lease’. The lease demised two houses, a main house and a mews house, and the landlord in opposing the claim contended that these properties could not, taken together, amount to ‘a house’ of which enfranchisement could properly be claimed. Accepting that there was a saving provision in the 1967 Act (Schedule 3, paragraph 6(3)), Neuberger J did not consider that it was applicable to the enfranchisement claim before him, stating at [40]:

‘It does not seem to me that, as a matter of ordinary language, the inclusion of the mews house in the 1997 notice constituted an ‘inaccuracy in the particulars’ or ‘misdescription of the property’, as those terms are commonly used. The reference in the notice to mews house as well as the main house ‘accurately’ ‘described’ the property to which the tenant intended his claim to extend: there was therefore neither an ‘inaccuracy’ nor a ‘misdescription’. What the claim under the 1997 notice undoubtedly did was to ‘extend… to property not properly included in the house or premises.’

32.         As I am of the view that section 81(1) could not save a claim notice where the claim wrongly included land which could not be the subject of RTM, I do not agree with the Ft T that it could have excused any such mistaken inclusion, if there were one.

The validity of the claim notice

33.         I turn finally to the question whether the claim notice given by the respondent complied with section 80(2) of the 2002 Act.

34.         The appellant contends that the claim was made in respect of the whole of the property comprised within the freehold title referred to. This title, relating to the area edged red on the plan referred to in the claim notice, included the yard. The yard could not, however, be the subject matter of a right to manage claim by the respondent. It is obvious that it was not a building. It could be ‘appurtenant property’, in that such property is defined in section 112(1) as including ‘a yard’, but this yard neither belonged to nor was usually enjoyed with the building being claimed. As the yard did not come within the premises over which a claim to acquire could be made, it followed that the claim notice included property which was surplus, property which could not be part of the claim, and in those circumstances the claim notice was invalid.

35.         The respondent denies that the claim was made in respect of the whole of the property comprised within the freehold title, and contends that the appellant misconstrues the effect of the words in the claim notice. The words in brackets ‘(within the area edged red on freehold plan NGL88768)’ should not be read as defining the full extent of the property over which the claim is being made, as to do so fails to give sufficient weight to the word ‘within’. There was no requirement that the building, or the appurtenant property, was identified by reference to a plan. The fact that the plan from the title register was referred to in the claim notice does not mean that the respondent was claiming the right to manage all those premises contained on the title in question. If the effect of the words in brackets was that the yard was within the appurtenant property, that would not invalidate the claim, as even though there is no direct access (that is pedestrian or vehicular access) between the yard and the remainder of the land the yard could nevertheless be appurtenant property, the building potentially having other rights over it.

36.         The appellant’s case depends entirely upon the inclusion in the claim notice of the words in brackets. If those words did not appear, there can be no doubt that the notice would satisfy section 80(2). The claim notice specifies the ‘self-contained building’ in respect of which the respondent claims to acquire the right to manage: Platinum House. The claim notice indicates (although it did not need to: see Gala Unity; Pineview) that there is appurtenant property, that is property appurtenant to the building.

37.         The claim notice does not seek to define the appurtenant property but it is not a requirement that it does. The respondent has been, throughout these proceedings, somewhat ambivalent about the appurtenant property, or more particularly whether the yard is or is not claimed as appurtenant property. That is, in my judgment, the respondent’s prerogative: if it is the case that the right to manage can be acquired without the claimant specifying precisely which property is appurtenant, I see no reason why the claimant should be required to state definitively in these proceedings whether the yard is claimed to be appurtenant to Platinum House.

38.         Ultimately, the question depends upon the purpose and effect of the words in brackets. Do they, as the appellant contends, define the area over which the right to manage is to be exercised (such that the right can be exercised over all of the area edged red, but over no land outside that area)? Or do they, as the respondent contends, do not more than indicate the area which includes the self-contained building over which the claim is being made? Does the notice define the full geographical extent of the rights claimed? Or does the notice merely describe the location of the self-contained building? Is it, in short, definitive of the right being claimed, or merely descriptive of the location of the claim?

39.         It is important to consider the claim as a whole, and not treat the words in brackets in isolation. The claim is ‘to acquire the right to manage Platinum House… and appurtenant property (within the area edged red on freehold plan NGL88768).’ A natural reading of the phrase suggests that the words in brackets are intended to describe the appurtenant property as those words are adjacent. They may also be considered to give the location of Platinum House: in other words, that they qualify both ‘Platinum House’ and its appurtenant property. That said, it is not necessary for the claim notice to specify the appurtenant property at all, and while it is not the obvious interpretation, the words in brackets could be read as qualifying only Platinum House, and not the appurtenant property.

40.         Whichever nouns are intended to be qualified by the words in brackets, however, the one word which in my judgment is particularly important is that word ‘within’. Giving that word its natural meaning, it seems to me that the claim notice is doing no more than indicating that the premises are to be found inside the red edging. The building, Platinum House, is within the area so edged on the plan, but that does not mean that that building is represented by the entirety of that area, and it is obvious when the plan is read that the building is only one part of the land edged red. In short, giving appropriate weight to the word ‘within’, the claim notice read as a whole cannot be said to seek to engage all the land indicated on the plan as edged red, but only such land within that area as falls within the proper ambit of the claim.

41.         To take a more straightforward example, albeit not far removed from case law to which the appellant has referred. Let us say that a claim is made ‘to acquire the right to manage Gold House and appurtenant property (within the area edged green on the attached freehold plan)’. The area edged green includes not only Gold House but also Silver House. Both are self-contained buildings over which a right to manage can potentially be asserted. Insofar as the claim is to both Gold House and Silver House, the claim will be invalid as a claim cannot, as a result of Triplerose Ltd v 90 Broomfield Road RTM Co Ltd [2015] EWCA Civ 282, be made in respect of two buildings. The claimants contend, however, that the claim does not specify Silver House as the premises: all that the claim has done is seek to identify Gold House by reference to the freehold plan on which it can be seen. Silver House may be appurtenant property but that will not affect the validity of the claim being made. In circumstances such as those, I would interpret the claim as being one to acquire the right to manage Gold House, not being one to acquire both Gold House and Sliver House. I do not therefore consider that the reference to the freehold plan in the terms of the claim notice would invalidate the claim. 

42.         I agree with the respondent that the claim notice did comply with section 80(2). It is accepted that Platinum House is a ‘self-contained building’. There was no need (for the reasons I have given above) for the claim notice to have particularised the ‘appurtenant property’.  I accept that it is not entirely clear whether the words in brackets, that is ‘(within the area edged in red on freehold plan NGL88768)’ are intended to qualify only ‘appurtenant property’ or both Platinum House and the appurtenant property. What is clear, however, is that the claim notice cannot, in my judgment, be sensibly construed as a claim to manage the whole of the property contained within the area edged red on the plan annexed to the title. The word ‘within’ is significant.  At the most, it indicates that all the property referred to in the claim notice can be found inside those red lines.  I do not consider that it carries the meaning advanced by the appellant that all the property delineated on the plan inside the red lines is the subject of the claim.

43.         I agree with the respondent that the reference made to the title plan in the claim notice is nothing more than a guide to the location of the premises in relation to which the claim is made. The premises are to be read as being Platinum House and its appurtenant property, no more, no less.

44.         Returning to the decision of the Ft T, the relevant single paragraph concludes by stating, ‘If there was a mistaken reference to land which is not appurtenant this is an inaccuracy that can be excused.’ I consider that those words carefully and accurately express the position as a matter of law. In my judgment, the words in brackets cannot sensibly be read as including the yard within the claim as appurtenant property. They are unnecessary to the claim that is being made. They have led to some confusion, although I consider that the appellant has sought, for its own ends, to exaggerate the degree of actual confusion they have caused. It is arguable that, being surplus to requirements, the words have caused ‘an inaccuracy in the particulars’ required by section 80(2), and insofar as that is the case, then I agree with the point being made in the Ft T that those words would not, for that reason, invalidate the claim notice.

45.         In my judgment, the Ft T arrived at the correct conclusion in the one paragraph of its decision which addressed the issue upon which this appeal has been based: that the claim notice correctly specified the premises which were the subject matter of the claim. This appeal must therefore be dismissed.

46.         That is the basis upon which I decide this appeal. The respondent did advance an alternative submission that, in the event of the claim notice being construed as including the yard (as property over which it could therefore claim the right to manage), the yard was in any case ‘appurtenant property’. As I indicated above in paragraph 8, the parties remain in dispute about the use made of the yard and the Ft T did not make any relevant factual findings in that regard. The appeal to this Tribunal being by way of review, I am confined to the facts as agreed or as determined by the Ft T. I have not therefore been able to rule upon this alternative submission which remains unresolved. 

47.         I conclude by emphasising that the duty imposed by section 80(2), that of specifying the premises over which the claim to acquire the right to manage is being made, should not normally cause difficulties for a claimant. The claim notice must specify the premises: for these purposes, ‘premises’ is a reference to the self-contained building, or part of a building. It is not however necessary for the claim notice to specify either that there is appurtenant property or, if there is, what that appurtenant property is. If that were a requirement, it would be a requirement that would be impossible, with any degree of certainty to comply with. That is principally because ‘appurtenant property’ includes ‘appurtenances’, that is rights pertaining to the property, some of which will be contained expressly in the leases but others of which will take effect only by implication and which will therefore by definition be difficult, and often impossible, to list comprehensively.

Dated: 15 June 2015

 

His Honour Judge Stuart Bridge