The claimant, as nominee purchaser on behalf of the tenants of a building, issued a claim for the tenants to establish their entitlement to acquire the freehold of the building under the Leasehold Reform, Housing and Urban Development Act 1993. The claimant served two notices on the first defendant landlord, pursuant to section 13(1) of the Act, which required that notice be given by not less than one half of the total number of flats. The first notice was given on the basis that there were, on the relevant date, 26 flats in the building. Both notices were signed by a solicitor purportedly on behalf of 17 participating tenants of flats. The landlord served counter notices, stating that there were 30 flats in the building; asserting that there were four new flats on the sixth and seventh floors of the building. The landlord also asserted that three of the participating tenants were not qualifying tenants. The claimant issued a Part 8 claim, seeking declarations, including that the participating tenants were, as at the date of service of the initial notice, entitled to exercise the right of collective enfranchisement, that there were 26 flats in the building and disputing that the four sets of premises in question were “flats” for the purposes of section 101(1) of the Act as they had no identity or function or physical character as dwellings and could not be used for the purposes of a dwelling at that time. The second defendant, the owner of the head lease, was joined to the claim.
On the claim—
Held, claim dismissed. The definition of “flat” in the 1993 Act was concerned with the purpose for which premises had been constructed or subsequently adapted. The relevant question was whether the premises had been constructed or adapted for use for the purposes of a dwelling or for use for some other purposes. The test was not whether the separate set of premises had reached such an extent of fitting out, or remained in such good condition, that it could actually be used for living, eating and sleeping purposes on the relevant date. Each of the four separate sets of premises in existence on the sixth and seventh floors had been constructed for use for residential purposes, even though their current condition precluded actual use for those purposes. On the relevant date there were 30 flats in the building, which in turn meant that the initial notice had to be signed on behalf of at least 15 qualifying tenants and had to identify all the qualifying tenants in the building. The initial notice was therefore invalid. The second notice was deemed withdrawn because no application capable of relating to that notice was made to the court before the relevant date. Accordingly, there was no valid notice on which the claimant could rely and its claim was dismissed (paras 34–37, 47–51, 144).
Edwin Johnson QC (instructed by Forsters llp) for the claimant.
Gemma de Cordova (instructed by Boodle Hatfield llp) for the first defendant.
Stephen Jourdan QC and Thomas Jefferies (instructed by Stephenson Harwood llp) for the second defendant.