The Commonhold and Leasehold Reform Act 2002 gives long leaseholders of flats in self-contained buildings the right to acquire the right to manage their block without the need to show any wrongdoing on the part of the landlord’s previous management of the block. To exercise this right the leaseholders are required to form a right to manage company (an RTM company) and that company must serve the correct notices on the landlord.
In 18 Langdale Road RTM Company Ltd v Assethold Ltd [2022] UKUT 215 (LC), the Upper Tribunal (Lands Chamber) considered whether the First-tier tribunal FTT had been correct to conclude that the claim notice, which omitted a paragraph of the required notes, was invalid.
The requirements of a claim notice are set out in s80 of the 2002 Act. They are primarily designed to demonstrate to the recipient of the notice that the RTM company is properly constituted, to identify the participants and to tell the landlord what it has to do if it wants to serve a counter-notice.
Subsections 80(8) and (9) require the notice to include such other particulars as may be required by regulations. The relevant regulations are the Right to Manage (Prescribed Particulars and Forms) (England) Regulations 2010. One of the things these regulations require is for prescribed notes to be given, one paragraph of which notes sets out the procedure in cases where a landlord cannot be traced. It was this paragraph of the notes that 18 Langdale Road RTM Company Ltd had omitted from their notice of claim.
The FTT considered Triplerose Ltd v Mill House RTM Co Ltd [2016] UKUT 80 (LC); [2016] PLSCS 68 and found the failure to include all the prescribed information rendered the notice of claim invalid, but in reaching that conclusion Judge Elizabeth Cooke found that the FTT had erred.
The FTT had failed to consider deputy president Martin Rodger QC’s observation in Mill House: “It might be arguable that the omission of a particular note which had no possible application to the circumstances of an individual case might not be fatal…”
Elim Court RTM Company Ltd v Avon Freeholds Ltd [2017] EWCA Civ 89; [2017] PLSCS 46 and Natt v Osman [2013] EWCA Civ 584 make it clear that in cases in which the non-compliance relates to a statute which confers a property or similar right on a private person (as opposed to procedural non-compliance by a public body) the question is not whether there has been substantial compliance – the court interprets the notice to see whether it actually complies with the strict requirements of the statute, and if it does not then will find the notice wholly valid or invalid, but Judge Cooke clarified that does not mean that the slightest defect in the claim notice renders it invalid. It is necessary to determine the requirements of the statute.
Applying the guidance in Elim Court (in which the findings of Natt v Osman were summarised) to the present case, Judge Cooke had no hesitation in finding that the missing paragraph did not invalidate the claim. The information in the missing paragraph would rarely be needed, and its omission would be unlikely to cause prejudice to a landlord on whom it was served. The notes correctly referred to the relevant provisions of the 2002 Act, and any recipient would then be able to see the law as regards serving notice upon an entity that cannot be traced. Moreover, the inclusion of the notes is purely a requirement of secondary legislation. The decision of the FTT was set aside and the UT substituted its own decision that the claim notice was valid.
As the UT reached the decision that the claim notice was valid, it did not consider s81 (1) of the 2002 Act, which states: “A claim notice is not invalidated by any inaccuracy in any of the particulars required by or by virtue of section 80.”
Elizabeth Haggerty, barrister
