First-tier Tribunal Decides on Collective Enfranchisement Claim

OUTCOME: Allowed in Part

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

[NAME_1]/29UQ/OCE/2019/0037

Property

:

[NAME_2], Tunbridge Wells, Kent [POSTCODE]

Applicant

:

[redacted]

:

[COMPANY_5]

Respondent

: [redacted] [COMPANY_7] (2) [NAME_8] (3) [COMPANY_12]

:

:

(1) [COMPANY_13] (2)(3) [COMPANY_5]

For the Applicant:

[redacted]

For the First Respondent:

[redacted]

Type of Application

:

Collective Enfranchisement – Section 24 Leasehold Reform, Housing and Urban Development Act 1993

Tribunal Member(s)

:

Judge M Davey Judge J [NAME_18]

Date of decision : 26 October 2020

2

The Application

1. By an application (“the Application”) to the First Tier Tribunal (Property Chamber) (“the Tribunal”), dated 10 October 2019, the Applicant, [COMPANY_4], as Nominee Purchaser, seeks a determination from the Tribunal under section 24 of the Leasehold Reform Housing and Urban Development Act 1993 (“the 1993 Act”) of (a) the premium to be paid and (b) the terms of acquisition in respect of a collective enfranchisement claim to the property, [NAME_2], Tunbridge Wells, Kent.

Directions

2. On 20 January 2020 the Tribunal asked the parties to identify the questions that they wished the Tribunal to decide, together with draft directions. The request was prompted by the failure of the parties to settle their differences at mediation held on 15 January 2020.

3. The parties agreed a preliminary issue to be decided but could not agree on whether an oral hearing was required to determine the issue. The Applicant considered that an oral hearing was not necessary. The First Respondent requested an oral hearing. On 30 January 2020 the Tribunal (Judge Tildesley) issued Directions to the effect that an oral hearing was not necessary to decide the preliminary issue but that in the light of the witness statements and submissions this might change. The Tribunal directed that all further proceedings were to be stayed until determination of the preliminary issue or further order.

4. Judge Tildesley stated that the preliminary issue to be determined was “whether or not the Applicant is entitled to include in its claim the Additional Freeholds (being the two areas of garden edged blue and green on plan 1 attached to the section 13 notice) under section 1(2)(a) of the 1993 Act.”

5. The Applicant subsequently sought an extension of time, which was not opposed by the First Respondent, and the Tribunal granted the extension. The Tribunal (Judge Tildesley) issued amended directions, dated 15 April 2020, which set out a timetable requiring service of all witness statements by 5 June 2020 and written submissions by 19 June 2020. The Tribunal received, both the First Respondent’s written submissions on the

3 preliminary issue, which were dated 17 June 2020, and the Applicant’s written submissions, dated 19 June 2020.

6. Having considered the representations of the parties, the Tribunal (Judge Tildesley) decided that an oral hearing of the matter should be held. This was because the Applicant wished to cross-examine [NAME_19], a witness for the Respondent, whose witness statement contradicted evidence given by the witnesses produced by the Applicant in their witness statements. The Tribunal accordingly issued amended Directions on 23 June 2020 stating that an oral hearing would be held on the CVP platform on 13 July 2020. Paragraph 16 of those Directions stated that, “The oral hearing will be restricted to cross examination and re-examination of [NAME_19]. Her witness statement will be admitted as evidence in chief and limited oral submissions from both parties to supplement their written submissions.” Paragraph 17 stated that, “Judge Tildesley does not agree that a site inspection is necessary. The existing evidence includes plans and photographs. The Tribunal may also decide to look at the property on the internet.”

The hearing of 13 July 2020

7. The Tribunal was composed of Judge M Davey (Chairman), Judge J Dobson (Deputy Regional Judge) and [NAME_18]. Mr [NAME_14] [NAME_15] QC, of counsel, instructed by [COMPANY_5], solicitors, represented the Applicant and Mr [NAME_23] [NAME_24] QC of counsel, instructed by [COMPANY_13], solicitors, represented the First Respondent. Also present were [NAME_25], solicitor for the Applicant; [NAME_26], solicitor for the First Respondent; [NAME_28] (director of [COMPANY_30]); [NAME_8] and [NAME_34] (director of [COMPANY_12]. and [COMPANY_33].)

8. At the opening of the hearing [NAME_24] requested an adjournment to permit the First Respondent’s witness, [NAME_19], to give oral evidence and to be cross-examined by counsel for the Applicant. The application for an adjournment had been made earlier on 9 July 2020. However, on 10 July 2020 the Tribunal (Judge Dobson) refused the application on paper but stated that the application may be renewed at the start of the hearing if the First Respondent was so advised. The ground given by the First Respondent for an adjournment was that [NAME_19] was caring for her aged and infirm parents and was not in a position to give undistracted evidence by telephone on 13 July 2020. [NAME_24] submitted that if [NAME_19] could not be cross-examined her evidence would not have the appropriate weight it deserved.

4 9. [NAME_24] referred to a letter of 17 June 2020 in which the First Respondent’s solicitor sought clarification from the Applicant as to what aspect of [NAME_19]’s evidence was challenged by the Applicant so that his client could give a written response. [NAME_24] said there was no reply to that letter. [NAME_15] said that this was because the Tribunal fixed a hearing date shortly thereafter. Furthermore, [NAME_15] said that there was a second reason for challenging [NAME_19]’s evidence. This related to a planning application made by [NAME_34], in respect of another property at [NAME_3], which [NAME_19] had opposed. [NAME_34]’s companies were the qualifying tenants of two of the three flats at [NAME_2]. 10. [NAME_15] opposed the application for an adjournment on the ground that:

(1) the witness was available; (2) her evidence and examination would require no more than one

hour; (3) it was not highly technical; (4) no medical evidence had been provided; (5) the Applicant had agreed to every concession; (6) breaks would have been offered and (7) the First Respondent did not wish to challenge the Applicant’s

witnesses.

He therefore asked the Tribunal to proceed in the absence of [NAME_19]

and to accept the unchallenged evidence of the Applicant’s witnesses.

11. The Tribunal, having considered the submissions of the parties, decided that despite the force of [NAME_15]’s submission, it was not satisfied that it had been established that [NAME_19] would be able to give undistracted evidence by telephone and therefore natural justice required that an adjournment should be granted. The Tribunal accordingly adjourned the matter until a date to be agreed, which was subsequently fixed as 17 September 2020.

The hearing of 17 September 2020

12. The Tribunal was again composed of Judge M Davey (Chairman), Judge [NAME_18]. Mr [NAME_14] [NAME_15] QC, of counsel, represented the Applicant and Mr [NAME_16] [NAME_17] of counsel now represented the First Respondent. Also present were [NAME_25], of [COMPANY_35], instructing solicitor for the Applicant; [NAME_26], of [COMPANY_13], instructing solicitor for the First Respondent; Mr [NAME_36] [NAME_37] (director of the First Respondent, [COMPANY_7]), [NAME_38], [NAME_8] and [NAME_19].

Preliminary matters

13. At the start of the hearing Judge Davey explained that on 14 September

2020 the First Respondent sought permission of the Tribunal to rely

on witness statements from two further witnesses. The Tribunal refused

this request on 16 September 202o for the reasons set out in the

direction issued by Judge Dobson on that date. 14. Judge Davey also referred to the “Applicant’s Supplemental Note on the

preliminary issue”, prepared by [NAME_15] and dated 14 September 2020

and a document headed “Further Written Submissions on behalf of the

First Respondent”, prepared by [NAME_39] and dated 16 September

2020. After hearing representations from both counsel as to whether

these documents should be admitted the Tribunal decided that it would

consider them with one qualification. In his [NAME_15] had gone beyond the Applicant’s submissions of 19 June 2020 in

so far as he sought to raise an alternative ground on which his case would

be made, should he fail on his initial ground. 15. The Tribunal decided that it would not consider that argument at the

hearing. The adjourned hearing of 17 September 2020 was, in

accordance with the Directions of 23 June 2020, limited to the cross

examination of [NAME_19] and “brief oral submissions to supplement

the written submissions of the parties.” That is to say the written

submissions made on 17 and 19 June. 16 In his submission of 19 June 2020, [NAME_15] says (at paragraph 4) that

“The Preliminary Issue turns on whether or not section 1(3)(a) of the

1993 Act is satisfied. For the reasons developed below, in this case the

issue turns on whether or not at the Relevant Date the disputed areas

were “belonging to or usually enjoyed with” the [NAME_40] at

[NAME_2].” 17. With this in mind the Tribunal decided not to hear [NAME_15]’s

alternative case, based on section 1(3)(b) of the Act, which was not

foreshadowed in his submission of 19 June 2020 and to which the

Respondent would need time to respond if it were to be considered

by the Tribunal. This decision would not prevent [NAME_15] from

applying to raise the argument in the appropriate manner, should he so

wish, on a future occasion, although [NAME_39] reserved the right to

oppose such a request.

6 18. [NAME_39]’s Further Submissions document was accepted because it

was mostly (but not entirely, as to which see later) concerned with

making supplementary submissions to those set out in [NAME_24]’s

written submission of 18 June 2020 and summarising points that [NAME_39] would make in his oral submission at the hearing.

The statute law

19. Section 1 of the 1993 Act provides:

(1) This Chapter has effect for the purpose of conferring on qualifying tenants of flats, contained in premises to which this Chapter applies on the relevant date the right, exercisable subject to and in accordance with this Chapter, to have the [NAME_41] of those premises acquired on their behalf

(a) by a person or persons appointed by them for the purpose, and

(b) at a price determined in accordance with this Chapter;

and that right is referred to in this chapter as “the right to collective enfranchisement”.

(2) Where the right to collective enfranchisement is exercised in relation to any such premises (“the relevant premises”) -

(a) the qualifying tenants by whom the right is exercised shall be entitled, subject to and in accordance with this Chapter, to have acquired in like manner, the [NAME_41] of any property which is not comprised in the relevant premises but to which this paragraph applies by virtue of subsection (3); and (b) section 2 has effect with respect to the acquisition of leasehold interests to which paragraph (a) or (b) of subsection (1) of that section applies.

(3) Subsection (2)(a) applies to any property if at the relevant time either –

(a) it is appurtenant property which is demised by the lease held by a qualifying tenant of a flat contained in the relevant premises; or (b) it is property which any such tenant is entitled under the terms of the lease of his flat to use in common with occupiers of other premises (whether those premises are contained in the relevant premises or not).

7

Section 1(7) provides that

“Appurtenant property,” in relation to a flat means any garage, out-house,

garden, yard or appurtenance belonging to or usually enjoyed with the

flat.”

The preliminary issue – factual background

20. The Tribunal, which did not inspect the property but relied on plans and other photographic evidence provided with the trial bundle, finds that the background, as revealed by the evidence and submissions, is as follows.

21. The subject property, [NAME_2], is one of a row of eight semi- detached Victorian properties numbered 1 to 8 [NAME_3]. All eight properties are converted and laid out as flats. Each property has a garden to the rear. Opposite the front of 5-8 is a communal garden, referred in the witness statements as the [ADDRESS] (“the OG”). There is a similar garden opposite numbers 1 to 4 [NAME_3]. Access to the properties is by a T shaped private access road the “cross” of which separates the front of the row of buildings from the two communal gardens and the “stem” of which separates the two communal gardens from each other.

22. Number 7 consists of four stories (including a lower ground floor) and contains three flats; 7a on the lower ground floor, 7b on the ground floor and a maisonette on the upper two floors (referred to as “the [NAME_40]”). About halfway down the rear garden of number 7 there is a thick hedge with an arch in the middle that divides the garden in two. The half beyond the hedge is the private garden of the [NAME_40] (as to which see further below).

23. So far as relevant to the Application the title history is as follows. On 1 January 1936 a headlease (“the Headlease”) was granted by the then freeholder, for a term of 99 years, of the whole row 1-8 [NAME_3], together with the land on which the communal OG and the adjacent garden opposite 1 to 4 [NAME_3] now lie. The Headlease permitted the conversion of each of the properties into not more than four flats. It also included a covenant by the headlessee to

“…lay out and plant [the OG and equivalent in front of numbers 1 to 4] and at all times during the said term maintain the same as an ornamental or pleasure garden with proper lawns beds shrubberies roads and paths...”

As noted above, all the properties were duly converted into flats and the OG laid out in accordance with the covenant in the Headlease. 24. In 1946 the Headlease was part assigned. The part that comprised 5-8 [NAME_3] and the OG was assigned to [NAME_42]. His

8 descendants remain the joint owners of the head lease so far as [NAME_2] and the OG is concerned today. In the 1980s the three flats at [NAME_2] were sold off on long underleases. The underlease of the [NAME_40] was granted 0n 26 September 1980 to [NAME_43], brother of the Third Respondent, [NAME_8] (“aka “[NAME_44]”), who has lived in the [NAME_40] since 1983 and became the underlessee by transfer from his brother in 1995. None of the long underleases conferred an express right to use the OG as a communal garden. However, the underlease of the [NAME_40] extended (or was thought to extend, as to which see below) to the half of the rear garden beyond the hedge.

25. Since 1946 there have been numerous dealings with the titles to the [NAME_41], the Headlease and the various underleases of the flats within number 7 as well as numbers 5, 6 and 8. These include transactions consequent on past lease renewal and enfranchisement claims under the 1993 Act, most recently a collective enfranchisement in 2015 with regard to number 7 (as to which see below).

26. By 2014 [COMPANY_45] (a company controlled by [NAME_38]) owned the [NAME_41] of [NAME_2] and the rear garden. The [NAME_41] of the OG was owned by [COMPANY_47] (as Trustee of the [COMPANY_49]). The underlease of flat 7a was owned by [COMPANY_33] (a company controlled by [NAME_50]) and the underlease of flat 7b by [COMPANY_12] (a company also controlled by [NAME_50]). As noted above [NAME_44] owned the underlease of the [NAME_40] which underlease included the private part at the far end of the rear garden. The Headlease comprising [NAME_2], the rear garden to no 7 and the OG was owned by [COMPANY_30] (a company controlled by [NAME_28] and his daughters) and [NAME_51], to whom it had been assigned on 30 September 1999 and registered under title No K802546). Numbers 6 and 8 and their rear gardens, which were also in this title, were removed and registered with their own titles title on 5 October 2006.

27. By a notice dated 23 January 2014, a claim to collective enfranchisement

of the [NAME_41] of [NAME_2], together with the whole of the rear

garden and the OG, was made by the long underlessees of two of the three

flats; viz [NAME_44] and [COMPANY_12], as Nominee

Purchaser. [COMPANY_33], the underlesse of the third flat, was

a non- participating qualifying tenant.

28. The [NAME_41] subsequently acquired in that claim by [NAME_8] and [COMPANY_12]., as Nominee Purchaser, and registered with Title No TT 37522, excluded (a) a strip, immediately beyond the hedge, of the private garden belonging to the [NAME_40] (b) the part of the rear garden lying between the building and the hedge and (c) the OG (the area edged blue for the purposes of the preliminary issue). The

9 reason for their exclusion was that none of the leases held by the qualifying tenants either demised those areas or granted common use rights over them. The far part of the rear garden (save for the excluded strip) together with a path down the rear garden to access the far part was included in the freeholds acquired. The strip beyond the hedge was excluded because there was a discrepancy between the line of the hedge and the boundary of the demise of the underlease of the [NAME_40] as shown on the underlease plan.

29. On 15 March 2017, [NAME_44] surrendered the underlease of the [NAME_40] to the headlessee. The Headlease, which now demises [NAME_2], its rear garden and the OG was at the same time transferred by the existing headlessees to themselves and [NAME_52]. Since that date, the registered proprietors of the Headlease (under Title No. K802546) have been [COMPANY_30], [NAME_51] and [NAME_8].

30. The effect of these transactions was to make the headlessees the qualifying tenant of the [NAME_40] by virtue of them holding the Headlease (As to which see the decision of the House of Lords in [NAME_53] de Walden Estates Ltd v Aggio [2009] AC 39).

31. A fresh collective enfranchisement claim to the [NAME_41] of the building,

the rear garden (including the nearer part and the strip of the far part not

acquired in 2015) together with the OG was then made by a section 13

notice dated 5 June 2017. The nominee purchaser was [COMPANY_4]. The claimant qualifying tenants on this occasion were the joint

headlessees (in respect of the [NAME_40]), [COMPANY_12] (underlessee of flat 7a) and [COMPANY_33] (underlessee

of flat 7b). The Respondents were [NAME_8] and

[COMPANY_12] (freeholder of the building, path and far rear

garden), [COMPANY_45] (freeholder of the near part of the rear

garden and strip of the far part excluded from the 2015 enfranchisement)

under Title No K448284) and [COMPANY_48] (freeholder of the OG under

Title No K952300). The section 13 notice also claimed the entirety of

the Headlease of [NAME_2] and the additional areas claimed.

32. A counter notice was served by [COMPANY_45]. and [COMPANY_48] on 16 August

2017 disputing the acquisition of the near part of the rear garden and the

OG and the price to be paid. Unfortunately for the claimants the section 13

notice was not protected by UN1s and the [NAME_41] titles to the garden

areas were both transferred to [COMPANY_7] (a company

controlled by [NAME_38]). This led to service of a further section 13

notice by the claimants and a dispute as to whether the first notice had

ceased to have effect when the second was served and whether the

second notice was thereby invalidated. Suffice to say that both notices

were eventually deemed ineffective and withdrawn and there the matter

rested until the service of a fresh section 13 notice dated 18 February

10

2019. The claim was met with a counter notice and once again the

enfranchisement of the garden areas, owned now by [COMPANY_7], was opposed. The ground of objection was that the areas

claimed were not additional freeholds because they neither belonged to

nor were enjoyed with the [NAME_40]. It is the failure of the parties

to agree this matter that has led to the present application to the Tribunal.

33. This latest section 13 notice claims the [NAME_41] and head leasehold interests in [NAME_2] (“the specified premises”). The claimants are once again (1) [COMPANY_30], [NAME_51] and [NAME_8] (being jointly the qualifying tenant of the [NAME_40]) (2) [COMPANY_33] (a company controlled by [NAME_50] (the underlessee of flat 7a) and (3) [COMPANY_12] (a company controlled by [NAME_50]) (the underlessee of flat 7b). The notice also claims under section 1(2)(a) of the 1993 Act, the [NAME_41] of the two areas of garden of which the First Respondent is the [NAME_41] proprietor (see above). They are (a) the OG, which is shown as edged blue on Plan 1 attached to the initial notice, and (b) part of the garden at the rear of the specified premises, coloured green on Plan 1. These are the areas that were excluded from the 2015 enfranchisement because they were not leased to a qualifying tenant at that time (including the strip of land, also claimed, that belongs to the [NAME_40] but was mistakenly excluded from the underlease of that flat and therefore from the [NAME_41] of the garden acquired in 2015).

34. The First Respondent, [COMPANY_7]., is as noted above the current [NAME_41] proprietor of title number K952300, which includes the OG. It is also the current [NAME_41] proprietor of title number K448284, which includes the parts of the rear garden of [NAME_2] claimed by the qualifying tenants in their section 13 notice. The freeholder of the building at [NAME_2] together with the path down the middle of the rear garden and the far part of that garden (save for the strip of the far part excluded in 2015) is [COMPANY_90] (the Second and Third Respondents) these areas having been acquired in the 2015 enfranchisement. The preliminary issue 35. The preliminary issue is thus whether the Applicant is entitled to claim the disputed garden areas under section 1(2)(a) of the 1993 Act. As [NAME_15] pointed out in the Applicant’s submission, the disputed part of the rear garden is more properly described as that area coloured green on Plan 1 attached to the section 13 notice and not, as the Directions state, an area edged green. Furthermore, the disputed area is more particularly that area of the rear garden, which is coloured green on Plan 1 and not coloured pink on Plan 2, because the counter notice accepts that the area coloured pink on Plan 2 is to be acquired. (It was part of the 2015 enfranchisement being the far end of the rear garden, which had been part of the title of the

11 underlessee of the [NAME_40] until that lease was surrendered). [NAME_15] stated that the disputed area is in fact more clearly identified as that shaded yellow on the plan attached to the transfer of 8 June 2015 (as to which see above).

The Applicant’s case

36. The Applicant’s submission first deals with the contested issue of law. Section 1(2)(a) of the 1993 Act permits the qualifying tenants by whom the right to collective enfranchisement is exercised in relation to the relevant premises (as defined in section 3 of the Act) to acquire in like manner the [NAME_41] of any property which is not comprised in the relevant premises but to which section 1(2) applies by virtue of section 1(3). Section 1(3) provides that section 1(2)(a) applies to any property if at the relevant date either (a) it is appurtenant property which is demised by the lease held by a qualifying tenant of a flat contained in the relevant premises; or (b) it is property which any such tenant is entitled under the terms of the lease of his flat to use in common with occupiers of other premises (whether those premises are contained in the relevant premises or not).

37. The Applicant relies on section 1(3)(a) being applicable to the garden areas claimed under section 1(2)(a). “Appurtenant property” is defined for this purpose in section 1(7) as meaning in relation to a flat “ any “garage, out- house, garden, yard or appurtenances belonging to or usually enjoyed with the flat.” 38. It is not disputed that a lease held by a qualifying tenant demises the

gardens claimed. The lease in question is the Headlease, which, since 15

March 2017, demises both the [NAME_40] of [NAME_2]

and the gardens claimed by the qualifying tenants. The issue on which

the parties disagree is the meaning of the words “belonging to or

usually enjoyed with the flat” in section 1(7) of the Act and whether either

limb of that requirement is satisfied in relation to the disputed

garden areas.

39. [NAME_15] for the Applicant submits that the first limb, that is to say

“belonging to” is distinct from the second limb, “usually enjoyed with”. He

relies on the decision of the Court of Appeal in Buckley v Tibber [2016] QB

706, a case on the leaseback provisions of the 1993 Act. Paragraph 1(2) of

Schedule 9 provides

“In this schedule any reference to a flat or other unit, in the context of the

grant of a lease of it, includes any yard, garden, garage, outhouses and

12

appurtenances belonging to or usually enjoyed with it and let with it

immediately before the appropriate time.”

[ADDRESS] recognised that the two limbs of section 1(7) were alternatives

but held that because the property claimed with the flat, (part of a

mezzanine landing outside the flat and a front garden) were not let with

the flat they could not be included in a leaseback of the flat. Thus it was

not necessary for the Court to decide whether they belonged to or were

usually enjoyed with the flat or indeed what the difference was

between those two alternatives.

40. [NAME_15] therefore offered his own interpretation. He submits that the former means that the appurtenant property is for the exclusive use of the flat in question whereas the latter refers to appurtenant thing property, which is enjoyed with the flat but not exclusively. That is to say by comparison with something that merely happens to be demised by the lease but really has nothing to do with the flat. He suggests that “usually enjoyed with” includes, but is not limited to, a common amenity demised by a flat lease, e.g. property which would be common use property and which would fall under section 1(3)(b) were it not for the fact that it is actually demised by one of the qualifying tenancies.

41. Furthermore, he argues that “enjoyed with” is not a particularly

demanding test and does not equate to any particular degree of active

use. He said that the different occupiers may make more or less use of an

amenity which is nevertheless usually enjoyed with the flat; the degree to

which the occupier exercises his enjoyment of the amenity may vary

over time. [NAME_15] referred to authority, in the context of section 62 of

the Law of Property Act 1925, that there does not need to be any actual use

at the date of the conveyance for something to be enjoyed with the land

(Re Yateley Common [1977] 1 WLR 840 at 850). He submitted that the

same applies to section 1(3)(a) of the 1993 Act.

42. [NAME_15] accepts that the date at which the test in section 1(7) is to be

applied is the Relevant Date, which is the date of the section 13 notice

(see section 1(8)). He says that in the case of “belonging to” that is the only

date to consider. However, he submits that in the case of “usually enjoyed

with”, a wide range of enquiry is required in order to establish whether it

can be said that the appurtenant thing was usually enjoyed with the flat at

the Relevant Date and furthermore user as of right is not necessarily

required.

43. [NAME_15] submits that in any event, although the old underlease of the

[NAME_40] did not confer an express right to use the other areas of

the rear garden or the OG there is a strong argument that when the

underlease of the [NAME_40] was granted in 1980, section 62 of the

Law of Property Act 1925 would have converted a prior permission of the

13

occupier of the [NAME_40] to use the rear garden and the OG

into a legal easement thereby making the user of the nearer part of the

rear garden and the OG a common use right as far as the [NAME_40] was concerned. However, he further submits that even if

section 62 did not apply, the merely permissive user of those areas would

suffice to make them “usually enjoyed with” the [NAME_40] for the

purposes of satisfying the definition of appurtenant property in section

1(7) of the 1993 Act.

44. [NAME_15] drew the Tribunal’s attention to [NAME_88] v Corporation of Trinity House [2018] 1 WLR 4876 (CA). That

was also a case concerning a communal garden, shared between several

buildings. The qualifying tenants had (in their leases) revocable licences of

use of the garden. It was thus a section 1(3)(b) claim. The parties had

agreed that the outgoing freeholder should retain the [NAME_41] of the

garden. In those circumstances it was held that the nominee purchaser

should acquire permanent fee simple rights over the garden under section

1(4) of the Act even though the lessees only had permissive revocable

licences of use. [NAME_15] submitted that it would be extraordinarily

bizarre if, in a case like the present, where one of the qualifying tenants

actually has a lease of the garden and thus the absolute right of use, the

nominee purchaser were not entitled to acquire the [NAME_41].

45. With regard to the strip of land beyond the hedge that was not included in

the 2015 enfranchisement [NAME_15] says that it was only a quirk in the

1980 underlease conveyancing that prevented it from being included in

the 2015 claim. The result was that the outgoing freeholder retained part

of the [NAME_41] of the private garden and subsequently transferred it to the

First Respondent. [NAME_15] said that the problem at the time of the 2015

enfranchisement, that this area was not demised by the qualifying

tenancy of a flat, disappeared in 2017 when the old underlease was

surrendered and the Headlease became the qualifying tenancy of the

[NAME_40].

46. As to the nearer part of the rear garden, [NAME_15] submits that since

15 March 2017 [NAME_44] as joint headlessee has had the absolute

right to use the rear garden. He is the actual occupier of the [NAME_40], and has been since 1983, and he has made actual use of the

nearer part of the rear garden. [NAME_15] says that section 1(3)(a) is

thereby satisfied.

47. With regard to the OG, [NAME_15] submits that, since 15 March 2017, [NAME_44], as joint headlessee, has had the absolute right to use the

OG. He is the actual occupier of the [NAME_40] under that

Headlease, which is a qualifying tenancy, and has made actual use of the

OG. [NAME_15] says that section 1(3)(a) is thereby satisfied.

14 48. Finally, [NAME_15] submits that the OG was required to be laid out and

maintained throughout the term as an ornamental or pleasure garden by

the 1936 Headlease. Although the Headlease does not explicitly state that

it is for the use of occupiers of the properties demised he asks the

question, what else is it for? [NAME_15] says that the witness evidence

is that in fact the OG has been treated as a common amenity for the use of

all flat occupiers since 1946. Thus the occupiers of the [NAME_40]

from time to time certainly had permission, if not the right (from 1980 by

virtue of section 62 of the Law of Property Act 1925), to use the OG. He

concludes that the OG has therefore been usually enjoyed (in common

with others) with the [NAME_40] since 1946 and section 1(3)(a) is

thereby satisfied.

49. The witnesses for the Applicant, whose evidence is relied on by [NAME_15],

are [NAME_55], [NAME_28], [NAME_8] and

[NAME_56]. Their evidence, which the First Respondent chose not

to test by cross examination is as follows:

[NAME_55]

50. [NAME_55], who is 87 years old, states that his father, [NAME_42],

purchased the Headlease of 5-8 [NAME_3] and the OG in 1946.

He said that his father’s priority was restoration of the OG which was in

need of attention after the War. [NAME_55] lived at 8 [NAME_3] with his parents and brother from 1946 to 1955. He remembers

playing cricket and football with his father and brother on the lawn of the

OG. Mr [NAME_29] provided (1) a photograph taken around 1947 of a Miss

[NAME_57] with the [NAME_29] family dogs. Miss [NAME_57] lived at that time with

her family in the [NAME_40]. [NAME_55] said that the two

families used to have picnics in the OG. (2) a photograph of [NAME_55]

with his tennis racket and his dog in the OG taken in 1947 and (3)

a photograph of his mother with their dogs in the OG in 1954. [NAME_55] says that between 1950 and 1953 his father built a wooden

shed/garage in the OG to store garden equipment. This garage was later let

to [NAME_44] to store his classic cars. [NAME_55]’s father died in 1966 and

left a share of the Headlease to [NAME_55] and the other share to [NAME_55]’s

brother, [NAME_42].

51. [NAME_55] says that his brother continued to maintain the OG until they

transferred their shares in the Headlease to their respective sons in 1998.

[NAME_55] said that at all times the OG had been used as a communal

garden for all the residents of [NAME_3]. He provides a

photograph of his father, maintaining the garden as such, taken around

1952.

52. [NAME_55] says that in the late 1960s a [NAME_58] and her daughters,

[NAME_60] and [NAME_61], occupied the [NAME_40]. [NAME_61] later wrote

15

an autobiographical work (Hideous Kinky) in which she referred to the OG

and which she referred to again in an article in the Daily Telegraph when

she recalled frequently picnicking in what would clearly appear to have

been the OG.

53. [NAME_55] states that in or around the late 1960s or early 1970s the

Council removed the central floral bed to lay a sewer pipe but this did not

deter communal use of the OG thereafter. He says that his son and nephew

now own the Headlease, of which the OG forms a part.

[NAME_28]

54. [NAME_28] is [NAME_55]’s son. He says that in 1998 his father gifted

his share in the Headlease to him. His uncle [NAME_42] sold his share to

his son [NAME_51], [NAME_28]’s cousin. [NAME_28]’s share was vested in [COMPANY_30]. (“[NAME_62]”). This company was incorporated on 23

November 1998 and is a property development company wholly owned

and controlled by [NAME_28] and his daughters, [NAME_63]. [NAME_62] has been a joint owner of the Headlease since

1998.

55. Mr [NAME_29] supplied evidence of payment by him to [NAME_64],

the then leaseholder of [NAME_67], for lawn mowing and other

gardening tasks relating to the OG and Ms [NAME_68]’s own rear garden from

2009 to 2012. He stated that he paid for the maintenance of the OG and

[NAME_44] helped with the tree work voluntarily. [NAME_28]

said that the garage, which he believed was built by his grandfather,

fell into disrepair in or around 1995 and has not been rebuilt. [NAME_28]

paid to have it cleared out in 2010. By that time it was very dilapidated and

had ceased to be used by [NAME_44] for storing his cars. The garage

fell down in 2012 and is no longer in situ.

56. [NAME_28] said that he and his cousin [NAME_51] have been responsible for

the upkeep and maintenance of the OG as headlessee, but Tree

Preservation Orders on trees in the OG had prevented proper pruning

without Council approval and this had reduced the size of the lawn area.

He confirmed that various residents of [NAME_3] have used

the OG for as long as he can remember, but particularly [NAME_8] who used the wooden garage for his cars and also for logging to

provide fuel for his open fire. [NAME_28] said that he had no issue with [NAME_52] using the OG at any time and neither did his father or uncle as

far as he knew. He had always regarded the OG as a common amenity for

the residents of [NAME_3].

[NAME_69]

16 57. [NAME_44] stated that his brother, [NAME_43], took an

underlease of the [NAME_40] in 1980 in his sole name, although

[NAME_44] had provided the deposit. In or around 1983, following

marriage difficulties, [NAME_44] moved into the flat with his brother.

[NAME_44]’s subsequent divorce in 1995, his brother left the flat

and transferred the underlease to [NAME_44] who remained there alone at first

but was later joined by his mother. [NAME_44]’s daughter [NAME_56], who was 10

years old at the time, stayed at weekends. She eventually came to stay with

her father full-time when she was 25 and lived with him for around four

years.

58. [NAME_44] says that in 1983 he rented a garage on the OG from the

then headlessors. He had acquired a collection of classic cars at the time

and stored one of them in the garage. He says that the garage became

incapable of use from about 1995 and eventually fell down around 2012

following which the site was cleared. He states that, from on or around

2003, he used the OG for processing logs for the open fire in his flat.

He says that he also processed logs with tenants in numbers 5 and 7 and

stored some of these logs on the OG. [NAME_52] says that he and his

family and friends used the OG for recreational purposes throughout his

occupation of the [NAME_40]. He states that he used the OG for

sunbathing, barbecues and parties and generally used it as a garden

because it was easier to access than his own rear garden and was also

more secluded. He says that he used to do tree trimming, and [NAME_65] arranged lawn mowing, for the headlessors who were

responsible for the maintenance of the OG.

59. [NAME_44] says that in 1992, following the death of her second

husband, his elderly mother came to live with him because she needed

care. He says that her condition was fair until the last eight or nine years

of her life when she needed more and more care. In the final three years

she was very ill and needed twenty four hour care. This meant that [NAME_44]

did not have time to maintain the garden as previously. In 2017, following

the death of his mother, [NAME_44] had a heart attack followed by a more

serious one a year later. He then had a heart operation, which meant that

he was not physically able to maintain the OG and explains why it became

overgrown between 2015 and 2018, although more recently he and [NAME_28] have tidied up the lawn and cut back some bushes. He says that he

still uses the OG from time to time for logging and recreational purposes,

weather permitting.

60. With regard to the rear garden, [NAME_44] explained that he had installed

the arch in the middle of the garden and planted the hedges on either side

of the arch which have now grown to around 25 feet tall. However, it was

discovered during the 2015 enfranchisement that the portion of garden on

the 1980 underlease plan was in fact around 25 feet short of what he had

17

always considered to be his garden under that lease. He understands from

his brother that the arch was placed there with [NAME_42]’s

permission because around 25 feet of the far end of the garden was

unusable because it was about 9 feet higher than the rest of the garden.

Nevertheless, he says that he always used the whole area at the rear garden

beyond the hedge and everybody accepted this as being his garden.

61. [NAME_44] explained that the occupants of the middle and ground

floor flats (i.e. 7a and 7b) used the portion of the garden closest to the

building but did not do so exclusively because he used and still uses two

sheds in that section for storage. A tenant of the basement/ ground floor

flat helps [NAME_44] with mowing the lawn in all areas of the rear garden at

present, but he says that he mowed the lawn from the date that he moved

in, usually when the other occupants took no interest. He says that it is a

very informal arrangement and that other occupants of the property are

short-term tenants and they do not really use the rear garden at all.

62. He says that no one but himself has used the near part of the rear garden

for the last five or six years. He says that he has used the middle part of

the garden for parties. He says that in or around 1992 he installed a pizza

oven in the middle of the garden. He supplied a photograph of [NAME_44],

his brother, and his brother’s family and [NAME_44]’s then girlfriend, [NAME_70],

taken in or around 2002/3 in the rear garden when they were eating pizza

that they had cooked using the oven. There are also photographs of [NAME_44]

and his mother sitting by the oven in around 2000 and of [NAME_70] and her

mother with the dogs in the rear garden in or around 2002/3. He also

provided photographs of he and his brother using the oven in 2011/12.

[NAME_56]

63. [NAME_56] is the daughter of [NAME_44]. She says that her

parents separated in 1983 when she was 10 years old and her father went

to live in the [NAME_40] at [NAME_2]. She said that she

used to stay there at weekends until she was 15 years old. She says that she

lived there with her father and her grandmother for around 4 years from

1998 to 2002. [NAME_56] remembers playing in the OG around 1984-5.

She sunbathed in the OG when she was living at the [NAME_40]

and occasionally when visiting. She also remembered walking the dog in

the garden. As to the rear garden, [NAME_56] recalled sunbathing there and

attending her father’s pizza parties over the years. She mainly used the

rear part which belonged to the [NAME_40], although she was

aware that her father “used the whole of the garden from time to time

however as he has sheds” and a pizza oven in the middle portion of the

garden.

The First Respondent’s case

18

64. The case for the First Respondent is now set out in [NAME_24]’s

written submission of 17 June 2020, together with [NAME_39]’s

supplementary written submission of 16 September 2020 and his oral

submission on 17 September 2020. [NAME_39]’s written submission for

the most part elaborates that of [NAME_24] but first immediately

introduces a new submission. That is to say that that the OG had become

so overgrown and neglected that at the relevant date it, or part of it, had

ceased to have the character of a “garden” in which case it fell wholly

or partly outside the definition of appurtenant property in section 1(7) of

the 1993 Act. He submitted that it was more akin to the paddock in

Methuen-Campbell v Walters [1979] 1 QB 525 which was held not to be a

garden.

65. [NAME_39] then submitted that for a garage, outhouse, garden, yard or

appurtenance to be appurtenant property in relation to a flat it had to be

within the curtilage of the building in which the flat is situated. He relied

on Cadogan v McGirk [1996] 2 EGLR 75 where a claim was made under

the 1993 Act to a new lease of a second floor flat in a building. The tenant

also had a tenancy of a storeroom on the 6th floor and argued that the

storeroom should be included in the new lease because it fell within the

extended definition of “flat” in section 62(2) of the Act. It was held that

the new lease should contain the storeroom as well because it was an

appurtenance of the flat, being within the curtilage of the building. [ADDRESS] rejected the landlord’s argument that the appurtenance had to be

within the curtilage of the flat itself.

66. [NAME_39] referred to the passage below from Millet LJ’s judgment.

“as I see it it is necessary first to identify a separate set of rooms within the

building which constitutes the flat; next to identify other areas within the

building which or the right to enjoy which may be appurtenant to the flat;

and finally to consider the grounds of the building in order to identify

any garage, outhouse, garden, yard or other erection or land within the

curtilage of the building which or the right to enjoy which is usually

enjoyed and let to the tenant with the flat.”

67. [NAME_39] said that the OG, separated by a road from the building

was not within the curtilage of that building. He said that in [NAME_71]-

[NAME_72] v [NAME_73] a paddock, let by the same lease to a tenant of a house

and garden and separated by a fence from the garden, was not within

the curtilage of the house. [NAME_39] submitted that the suggestion in

Hague, Leasehold Enfranchisement, [at 2.16 discussing the extended

meaning of house and premises in section 2(3) of the 1967 Act] that a

garden may be within that definition even if separated by a road, is

19

erroneous and is based on an old Scottish case (Cargill v Phillips (1951)

S.C. 67) that does not support such a bold assertion.

68. [NAME_39] therefore submitted that the Applicant fails at the first hurdle.

Nonetheless he proceeded to engage with the main focus of the Applicant’s

case. That is to say whether the OG and rear garden area claimed were

usually enjoyed with the [NAME_40]. [NAME_39] submitted that

sections 1(3)(a) and 1(7) of the 1993 Act require that at the Relevant Date

the property claimed must be let to the qualifying tenant and enjoyed by

such qualifying tenant. He says that there is no evidence that the OG, or

any part of it, was used by [NAME_52] as headlessee at the relevant

date or indeed during the preceding two years, save perhaps for some

logging by him in one corner.

69. [NAME_39] also said that the OG covers a large area which has fallen into

disuse and become overgrown. He questions how it or all of it can be

enjoyed when overgrown. He says that the Applicant’s evidence does not

specify which parts if any were still used at the time of the relevant date or

in the years leading up to it. He said cutting logs from time to time in the

furthermost corner cannot trigger entitlement to acquire the whole area.

Similarly, cutting trees sporadically is not the kind of use envisaged by

section 1(7). At best it is maintenance not enjoyment. The Applicant does

not particularise which parts of the OG were being enjoyed, save in the

most general terms and then only in the dim and distant past.

70. [NAME_39] says that it cannot be said that at the material date the whole,

or indeed any part, of the OG was “usually” enjoyed with the [NAME_40]. The word usually requires a degree of frequency and

regularity of user as the qualifying tenant, which is clearly missing in this

case. [NAME_39] says that in any event [NAME_52]’s evidence does not

give sufficient examples of regular use to support the notion that he

usually enjoyed use of the whole of the OG since he became a headlessee,

let alone user “with” the flat.

71. [NAME_39] submits that all of the Applicant’s witnesses are “clients”

being participating tenants on whose behalf the Applicant is bringing this

claim. He said that when the witness statements are considered carefully

they say very little. [NAME_39] said that the evidence of the main

witness, [NAME_44], does not support the assertion of extensive use

of the OG between 1983 and 2014. There is no particularisation of the

geographical parameters of any use by [NAME_52] during that

period. His evidence does not support usual enjoyment and certainly not

in respect of the whole of the OG.

[NAME_21]

20 72. [NAME_39] sought to refute the Applicant’s contention that the OG had

been enjoyed with the [NAME_40] by relying on evidence from [NAME_19] who is the freeholder of the building at 3 [NAME_3]. [NAME_19] said that she had lived in a flat at number 3, where

she brought up her daughter, for 16 years. [NAME_19] is a solicitor who

for many years worked at home. She relocated to Dorset in October 2019

to be near her parents who were in need of care, although she comes

back to [NAME_3] from time to time to check her flat and deal

with any matters that might have arisen in her absence. She gave

evidence that all the occupants of those properties have used the area

opposite 1-4 [NAME_3] over the years for a variety of [COMPANY_54]

activities, such as children’s play, picnics and barbecues. She said that

she has been instrumental in ensuring that the area was mown, weeded

and pruned by resident volunteers. She says that the OG is very different.

73. [NAME_19] said that since [NAME_65] left in 2012 little had been

done by way of maintenance of the OG, which had become overgrown

with brambles, weeds and dense overgrown shrubs. She did see a

contractor scything and mowing grass in 2018 and about a year ago [NAME_44] asked her about advice about how to get consent for tree pruning.

She could not recall anyone sitting in the garden or any other [COMPANY_54]

activity between 2012 and 2019.

74. [NAME_19]’s evidence was strongly challenged by [NAME_15] in cross

examination during which he suggested that any view of the OG that she

would have had from inside the OG was angled and limited and only

available from a bedroom window in her flat. The bedroom was that of

[NAME_19]’s daughter when she was living there. He also argued that any

view from passing by the OG from the car park was denied because of

the trees and shrubbery. [NAME_19] said that she looked out of the

bedroom window from time to time and when passing by the OG it was

possible to see into the OG through the shrubbery when seasonal

conditions permitted.

75. [NAME_15] also took [NAME_19] through her detailed and vigorous

objection to a planning application by [NAME_50] with regard to

land behind 1 and 2 [NAME_3]. Permission was granted in May

2020. [NAME_19] denied being unhappy about the decision. [NAME_15]

suggested that this had motivated her to be biased with regard to the

present enfranchisement application because she had an axe to grind. [NAME_19] said that she knew that [COMPANY_12] had plans but did not know

the details nor was she particularly interested. She said that if a planning

application were to be made she would consider it and make such

representations as she thought fit to the Council. [NAME_15] asked [NAME_19] if she was aware of plans that [NAME_74] had with regard to

redevelopment of the whole of [NAME_3] including no.3. She

said that she had heard of a scheme but it was only a proposal as far as she

21

was aware. Her concerns were with no. 3 and she would look at any such

scheme nearer the time. [NAME_19] said that she did not mind who

owned the [NAME_41], but [NAME_15] said it made an enormous difference

because of [NAME_74]’s plans.

76. [NAME_15] took [NAME_19] through [NAME_52]’s evidence as to user of

the OG but she simply said that she had never seen any of these uses. She

said the barbecue could have been abandoned there. He also suggested

that if there had not been any maintenance of the garden between 2012

and 2019 it would look like a jungle, which the photographs taken by [NAME_75] in 2017 and 2019 did not show to be the case. [NAME_19]

said it depends what you mean by “jungle”. She referred to weeds and

brambles and the fact that the OG had needed severe scything and

strimming.

77. [NAME_39] next argued that user “with”, requires a nexus of enjoyment

between the OG and the flat. At the most there has historically been

common user of the OG, which precludes user exclusively with the [NAME_40]. [NAME_39] said that in an Aggio scenario, i.e. where a

claimant qualifying tenant is a headlessee of a flat and a garden area

is claimed as appurtenant property, it is impossible to argue

successfully that an appurtenance (sic) other than one with a direct nexus to the flat is used with the flat. The reality is that it is used as headlessee and owner of the OG. It is not user in connection with the flat.

78. Turning to the rear garden area, [NAME_39] said that he was not

instructed to make any submissions seeking to resist the claim to the strip

of rear garden, which had been excluded from the 2015 enfranchisement

and which the Applicant contends was always treated as if it had been

demised by the underlease of the [NAME_40]. [NAME_39] said it is

apparent that this clearly defined area separated by the hedge has been,

and was, leading up to and at the relevant date, treated by all as part and

parcel of the [NAME_40].

79. However, [NAME_39] submits that the remainder of the rear garden

claimed by the Applicant cannot be said to have been usually enjoyed with

the [NAME_40]. With regard to that part of the garden nearest to

the building he says that this was used by the middle and ground floor

flats. He says that save for use of some sheds near the hedge by [NAME_52] he has never made use of this part of the rear garden. He says

that in the circumstances the claim to acquire this area must fail. He

submits that cutting the grass from time to time during the period

leading up to the section 13 notice is not sufficient usual enjoyment with

the [NAME_40]. With regard to the remainder of the rear

garden up to the hedge, [NAME_39] submits that historically this has

been used in common with other occupiers. In any event [NAME_39]

submits that despite the fact that [NAME_52] has been headlessee of

22

the area since 15 March 2017, his witness statement gives no evidence as

to any use at all during this two-year period.

80. [NAME_76] concludes that in the circumstances the claim to acquire the

OG and all but the strip of private garden excluded from the 2015

enfranchisement must fail.

The Applicant’s response

81. In his oral submission,[NAME_15] confined himself to dealing with matters

raised by [NAME_39] in his written and oral submissions that were either

not dealt with at all or not elaborated in [NAME_24]’s brief written

submission.

82. He submitted that the OG is patently a garden as shown by the

photographs. It might be a less well-kept garden than that opposite 1-4

[NAME_3] but it remains a garden just as a shabby or derelict

house remains a house. What is more the Headlease required it to be set

out and maintained as a garden.

83. With regard to the argument that the OG had to be within the curtilage of

no 7 he says that the First Respondent is wrong. It is appurtenant property

as defined in section 1(7). [NAME_15] says that [NAME_39] confuses

the first four types of appurtenant property set out in section 1(7) with the

fifth as if they were examples of appurtenance. He says that a

garage, outhouse, garden, yard or appurtenance are all separate things.

The first four are separate from the fifth.

84. [NAME_15] says that [NAME_77] v [NAME_73] was about a paddock let

with a house and whether it fell within the definition of house and

premises for the purposes of the Leasehold Reform Act 1967. He said that

the paddock in that case was not a garden. Therefore to qualify at all

as appurtenant property it had to be as an appurtenance. However it

could not qualify as such because it was not within the curtilage of the

house, which is a required element of an appurtenance Had it been a

garden it would have qualified as such.

85. [NAME_15] says that the present case is one of collective enfranchisement.

He says that it is not uncommon that a site might comprise several

buildings and have shared common land. It has never been suggested that

if one building of several is enfranchised the common land cannot also be

acquired even though it is not within the curtilage of any one building. He

says that a flat may be let with a garage in another block but the fact that

the garage is not within the curtilage of the building containing the flat

does not mean it cannot be acquired.

23

86. [NAME_15] submits that in [NAME_78] v [NAME_79] the only difference from

[NAME_77] v [NAME_73] was how to apply the curtilage test to a

second floor flat that does not have a curtilage. He says therefore that the

test applies to the block rather than the flat. The storeroom in that case

was an appurtenance and therefore had to be within the curtilage of the

block. It was not an outhouse. [NAME_15] says this explains the comment

in Hague (see paragraph 67 above) that a garden separated from the

premises by a road can be appurtenant property. It would only matter

that it was not within the curtilage if it was an appurtenance.

87. [NAME_15] further submitted that in any event he does not accept that the

OG is not within the curtilage of no 7. He says that is a question of fact. He

says that a number of blocks within a common area can have a

common curtilage; e.g. 5-8 or 1-4 and both OGs. The road is a

private access road.

88. [NAME_15] says that if the OG is demised by the Headlease and yet is not

belonging to or usually enjoyed with the flat then what is it? He submits

that it is equivalent to common use and must fall within the second limb

(usually enjoyed with). Had it not been demised it would have fallen

within s(1)(3)(b)). He says that there is no fourth category or hole to fall

through.

Discussion

89. By their latest collective enfranchisement claim, [NAME_44] and [NAME_50] (the latter through his companies, [COMPANY_12].

and [COMPANY_33]), being qualifying tenants under long leases of

the three flats at [NAME_2], seek to obtain [NAME_41] ownership

of the whole of the rear garden of no [NAME_2] and the OG.

They successfully acquired the freeholds of the building and the far end

of the rear garden (together with an access path from the building across

the remainder of that garden) in the 2015 enfranchisement but were

unsuccessful in their attempt on that occasion to acquire the garden

areas that they now claim once more (this time along with the other

joint lessees under the Headlease) as Additional Freeholds.

90. There is a clear commercial context to the claim. [NAME_15]’s

cross-examination of [NAME_19] he made reference to [NAME_34]

having development plans at [NAME_3]. [NAME_34]

already has planning permission for land behind 1 and 2 [NAME_3]. [NAME_15] also referred to plans which [NAME_38] has,

involving redevelopment of the whole of [NAME_3]. As

explained above, [COMPANY_80] was the freeholder of

24

the building and rear garden at number 7 before the 2015

enfranchisement and [COMPANY_81] was the

owner of the OG. [NAME_74] retains ownership of both the disputed garden

areas through a third company (the First Respondent) to whom these

areas were transferred in 2017. This transfer was clearly a tactic to defeat

an enfranchisement claim to the disputed areas launched by [NAME_44] and [NAME_34] (through his companies) in 2017 and

subsequently abandoned before being revived in the fresh claim in 2019,

which led to the present proceedings. Thus, as [NAME_15] observed, the

ownership of the [NAME_41] of the disputed garden areas is a battle

between two camps.

91. Whatever that battle might be it does not affect the function of the

Tribunal, which is to determine the matter according to the law and the

facts to which that law applies. Before examining the law, and its

application to the facts, the Tribunal records that it adopts as fact, the

evidence, summarised above, that is given in their witness statements

by the witnesses for the Applicant, whose evidence was not challenged by

the First Respondent. The evidence given by [NAME_19] for the First

Respondent, whilst, in the Tribunal’s view, honestly given and without

ulterior motive, does not contradict that given by [NAME_44]. [NAME_19] simply says that she did not see [NAME_52] making use of the

OG on the occasions when she looked out of the bedroom window in

her flat or into the OG, as far as possible, when she passed by on the way

to the shops. That does not mean that [NAME_52] did not use it, as

he claimed, on other occasions or indeed on occasions when she did look.

She may just not have seen him if he was there on any such occasion

because of an obstructed view

92. The statutory right of a tenant under a long lease of a house to obtain

the [NAME_41] or an extended lease of the house was introduced by the

Leasehold Reform Act 1967, which was designed to prevent a lessee under

a long lease of a house which was nearing expiry from losing their home.

93. The 1993 Act extended that right to flats. The Act introduced the right of

collective enfranchisement in Chapter 1 of Part 1 which enables qualifying

tenants to obtain the [NAME_41] of the building in which their flats are

contained. The policy context in the case of flats is different to that

applicable in the case of houses. The collective enfranchisement provisions

were designed to enable a group of leaseholders buy out the freeholder’s

interest so that tenants, who were obliged to pay for the services provided

by the landlord could thereafter control those services and their cost.

94. Chapter 2 of Part 1 of the 1993 Act contains the individual right of a

qualifying tenant of a flat to obtain a new lease. The underlying policy of

this Part of the Act was to enable a tenant whose lease had become a

wasting asset, and who was therefore at the mercy of the freeholder when

25

it came to security of their investment and in their home, to obtain a new

lease at a price and on terms provided for by the Act. This policy was

modified later when the Commonhold and Leasehold Reform Act 2002

removed the original residence requirement in the 1993 Act.

95. Section 1 of the Act contains the right to obtain the [NAME_41] of the self-

contained building or part of a building in which the flats of the

qualifying tenants are contained (the “specified premises”). Furthermore,

section 1(2)(a) entitles the claimants to acquire additional [NAME_41]

property (“[NAME_41](s)”) if that property falls within either

section 1(3)(a) or (b) of the Act.

96. Section 1(3) provides that section 1(2)(a) applies to any property if, at the

relevant date (which is the date of service of the section 13 claim notice),

(a) it is appurtenant property which is demised by the lease held by a

qualifying tenant of a flat contained in the relevant premises or (b) it

is a property which any such tenant is entitled under the terms of the

lease of his flat to use in common with the occupiers of other premises

(whether those premises are contained in the relevant premises or not).

Where section 1(3)(b) applies the freeholder can, instead of acceding to the

claim, offer permanent rights over the land claimed or of other land in

lieu, under section 1(4).

97. Qualifying tenants who enfranchise under section 1 are also required or

entitled to acquire leasehold interests (section 2). Superior leases of flats

must be acquired (section 2(2)) and leases of common parts or of property

within section 1(2)(a) which the tenants are acquiring may also be

acquired where the acquisition of that interest is reasonably necessary for

the management or maintenance of those common parts or (as the case

may be) that property, on behalf of the tenants by whom the right to

collective enfranchisement is exercised.

98. Section 1(7) defines “appurtenant property,” in relation to a flat to mean

“any garage, outhouse, garden, yard or appurtenance belonging to or

usually enjoyed with the flat.”

99. Section 62(2) of the 1993 Act similarly provides that in relation to the

individual right to a new lease under the 1993 Act references to a flat

“include any garage, outhouse, garden, yard and appurtenance belonging

to or usually enjoyed with the flat and let to the tenant with the flat on

the relevant date…”

100. The present case is of course one of collective enfranchisement. It is

necessary for the Tribunal to consider the policy and structure of the

Act. As to the policy of the Act Millet LJ held in [NAME_78] v [NAME_79] that

26

“It would, in my opinion, be wrong to disregard the fact that, while the Act may

to some extent be regarded as expropriatory of the landlord’s interest

nevertheless it was passed for the benefit of tenants. It is the duty of the Court

to construe the Act fairly and with a view, if possible, to making it effective

to confer on tenants those advantages which Parliament must have intended

them to enjoy.’ 101. As to the structure, the Court of Appeal has emphasised the need for

section 1 of the Act to be construed as a coherent whole ([COMPANY_88] v Corporation of the Trinity House

of Deptford Strond [2018] EWCA Civ 764 a case involving sections 1(3)(b)

and 1(4)). The difficulty that remains of course is in discerning “what

Parliament must have intended.” That is particularly acute in the present

case. 102. For the purposes of this determination, the preliminary issue, as argued by

the parties, turns on whether section 1(3)(a) has been satisfied. This

requires the Applicant to establish that the Additional Freeholds claimed

are “appurtenant property” (as defined in section 1(7)) which are demised

by a lease held by a qualifying tenant. 103. It is not disputed that a lease held by a qualifying tenant demises all the

areas claimed. They are demised by the Headlease of the [NAME_40], which is the qualifying tenancy. This is so because of the

decision in [NAME_53] de Walden Estates Ltd v Aggio [2009] AC 39 where

the House of Lords held that a headlessee of a building containing flats

could make a new lease claim of a flat as qualifying tenant of that flat

(provided there was no other qualifying tenant of the flat under an

inferior tenancy).

104. What is disputed is whether, at the Relevant Date, any or all of those areas

claimed are appurtenant property as defined in section 1(7) for the

purposes of s.1(3)(a). Each disputed area is dealt with in turn below. [ADDRESS] (“the OG”)

105. Until the hearing of 17 September 2020 it had been common ground

between the parties that each of the areas claimed by the Applicant was

a “garden” for the purpose of section 1(7). [NAME_24]’s submission of 17

June 2020 certainly did not dispute this. However, in his oral and

written submission [NAME_39] argued that the OG, which was

separated from the building by a roadway and is unfenced was in such an

overgrown and dilapidated state as to arguably be no longer a garden at

all but merely a “cut through.” He suggested that it was more akin to the

rough pastureland in [NAME_77] v [NAME_73], where the Court

of Appeal rejected the submission that it was a garden. [NAME_15] rightly

observed that this was a new point that was being raised for the first time

with little notice. However, [NAME_39] conceded that it was perhaps

27

not his strongest point and he was right to do so. The Headlease

describes the area as a garden and there is a covenant in that lease to

keep it maintained as such. Furthermore, an overgrown garden is

nonetheless a garden. As [NAME_15] observed, a dilapidated or

shabby building is still a building. The pastureland in [NAME_77]

[NAME_73] was never described or used as a garden. It was a paddock.

When it was argued in that case that the paddock was a wild garden Goff

LJ stated

“But when you have, as here, a cultivated garden and a piece of rough

pasture ground separated from one another, and apparently marked as

separate in the lease plan, I do not think it is possible to regard that rough

pasture (the paddock) as being garden.” 106. In the present case the OG is a cultivated garden that has been left to

deteriorate but not to such an extent that it has ceased to be a garden. The

Tribunal accordingly finds that the OG is a garden for the purposes of

section 1(7). 107. The question therefore remains as to whether the OG is a garden that was

“belonging to” or “usually enjoyed with” the flat (i.e. the [NAME_40]) at the relevant date. However, in his submission [NAME_39]

argues that before one even gets to this matter the Applicant has to show

that the OG is a garden belonging to or usually enjoyed with the flat, which

means that it must be within the curtilage of the building at No 7. He relies

on the decision of the Court of Appeal, whose judgment was given by

Millett LJ, in [NAME_78] v [NAME_79].

108. In that case the qualifying tenant of a second floor flat in a building

claimed a new lease (under Chapter 2 of Part I of the 1993 Act) of the flat.

The contested issue was whether the new lease should include a

storeroom on the sixth floor, which was let to the tenant under a separate

lease. Section 7(6) of the Act provides that where there are two such leases

they together constitute a single long lease. Section 62(2) gives an

extended definition of “flat” whereby it includes

“any garage, outhouse, garden yard and appurtenances belonging to or usually

enjoyed with, the flat and let to the tenant with the flat on the relevant

date….”

109. The dispute therefore turned upon whether the storeroom fell within

that definition and more specifically whether it qualified either as an

“outhouse” or “appurtenance” belonging to or usually enjoyed with the

flat”. [ADDRESS] of Appeal, whose judgment was given by Millett LJ, held

that it was not an “outhouse” because that is an outbuilding or outside

building in the grounds of or adjoining a principal building. Millett LJ

then stated that

“If the storeroom is an “appurtenance” of the flat within the meaning of section

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62(2) of the Act, then it is “appurtenant property” within the meaning of section

1(7) which was “let with” the flat within the meaning of section 7(6) and falls

within the extended definition of “the flat” in section 62(2).” 110. The freeholder having contended that an appurtenance must be within the

curtilage of the flat, Millett LJ continued

“The “appurtenance” must be an appurtenance of the flat in the sense that it must

belong to or be usually enjoyed with the flat and must be let with the flat. The

question is whether it must also be within the curtilage (if any) of the flat or

whether it is sufficient if it is contained within the premises of which the flat

forms part or is situate within the curtilage of those premises.

I am of opinion that the latter is sufficient.”

His Lordship continued

“The immediate context provides further support for the construction which I

have favoured. Just as the “outhouse” must be in the grounds of the block of

which the flat forms part, so in my opinion the “appurtenance”, if consisting

of land or a building, must be within the curtilage of the block but need not be

within the curtilage (if any) of the flat. But whereas the “outhouse” must be

outside the main building, the “appurtenance” may be within it.” 111. [NAME_39] draws from this decision the conclusion that to qualify as

appurtenant property for the purposes of section 1(7) the OG must be

within the curtilage of [NAME_2]. 112. [NAME_15] sought to refute this conclusion by reference to a close

reading of the decision and its context. He said, as was made clear in the

headnote of the law report of [NAME_78] v [NAME_79], that the decision was

as to whether the storeroom was an “outhouse” or “appurtenance” for the

purpose of section 62(2) of the Act. Thus, he submitted, whilst an

appurtenance had to be within, or within the curtilage of, the building

containing the flat to which it is appurtenant, that did not mean that

a “garden” had to be within the curtilage of the flat (if any) or the

curtilage of the building containing the flat. He said that the requirement

that an outhouse had to be within the curtilage of the building

followed from the settled meaning of “outhouse”. [NAME_15] said that

in so far as [NAME_39] referred to the OG as an appurtenance he had

fallen into error because an appurtenance is quite separate from the

other items, including a garden, listed in the definition of appurtenant

property is section 1(7). 113. Whilst agreeing with [NAME_15] that the actual decision in [NAME_78] v

[NAME_79] was a case about an appurtenance properly called, and is thereby

distinguishable from the circumstances of the present case, the Tribunal

considers that regard must be had to the following passage from Millett

LJ’s judgment, relied on by [NAME_39].

29

“As I see it it is necessary first to identify a separate set of rooms within the

building which or the right to enjoy which may be appurtenant to the flat; and

finally to consider the grounds of the building in order to identify any garage,

outhouse, garden, yard or other erection or land within the curtilage of the

building which or the right to enjoy which is usually enjoyed and let to the tenant

with the flat.” 114. [NAME_15] valiantly argued that the reference in this passage to curtilage

of the building was confined to “or other erection or land” being, he

suggested, a synonym for “appurtenance”. However, that fails to

explain Millett LJ’s statement that one has to “consider the grounds of

the building” in relation not just to appurtenances but also any

garage, outhouse, garden or yard. 115. It is clear from this passage that Millett LJ considered that for the

purposes of sections 62(2) and 1(7) a garage, outhouse, garden, yard or

“other erection or land” (the last mentioned not being within the

building) must be within the curtilage of the building. Whilst being an

obiter dictum uttered in the case of a new lease claim (because the

storeroom in that case was an appurtenance within the building), Millett

LJ’s observation is a weighty statement to which the Tribunal should

have due regard in a collective enfranchisement claim that turns upon the

meaning of section 1(7), which in all material respects uses the same

wording as section 62(2). Furthermore, if [NAME_15] is right it would

mean that a different test would apply to a garden, and presumably a

garage, to that applied to an outhouse, yard or appurtenance. It is highly

unlikely that this was Parliament’s intention. 116. The question therefore is whether the OG is within the curtilage of the

building numbered [NAME_2]. [NAME_15] argued that even if

he was wrong the OG could still be said to be within the curtilage of the

building at No 7 and that this was a matter of fact. [NAME_39] says that

the OG is not within the curtilage of any property and if it was it was

certainly not within that of number 7 alone. 117. The Tribunal agrees that what is within the curtilage of a building is a

question of fact in each case (as was held by Goff LJ in [NAME_82]

v [NAME_73]). The concept of a curtilage is usually associated with a

dwelling-house, in which case it refers to land which is part and parcel of

the house to which it is claimed to be related. In [NAME_73] the rough pasture

let to the tenant of the house and garden was held not to be within the

curtilage of the house because in the words of Goff LJ

“it was clearly divided off physically from the house and garden right from

the start and certainly at all material times.”

118. However, in the context of flats and the 1993 Act what amounts to the

relevant curtilage is more complicated. It relates to the building of which

30

the flat forms a part and if [NAME_78] v [NAME_79] is to be a guide refers to

what might be described as the grounds of that building. [NAME_2] is a semi-detached building (being one of eight such buildings)

containing three flats with a rear garden. Can it sensibly be said that the

OG, separated from that building (and at least three others) by a private

road, is within the grounds (i.e curtilage) of that building such that it could

be said to form part and parcel of the building? The Tribunal agrees with

[NAME_39] that [NAME_84] v [NAME_85], a case on whether certain land was

let with a dwelling-house for the purposes of the application of the Rent

Acts is of no assistance as to the meaning of appurtenant property in the

1993 Act. However, it is a question of fact in each case as to whether

something is within the curtilage of a house or other building. There is no

rule that if separated by a path or road from the building a garden cannot

be within the curtilage of that building. Nonetheless, in the present case

the Tribunal finds that the OG was a communal garden that was not

within the curtilage of any one building at [NAME_3]

including that at number 7.

119. This decisi0n by the Tribunal is sufficient to dispose of the Application as

far as the OG is concerned. It follows that it is not necessary to decide

whether the OG was usually enjoyed with the [NAME_40], as

claimed by the Applicant.

The rear garden

120. Is the [NAME_41] of the rear garden area claimed appurtenant property? This

again turns on whether it belonged to or was usually enjoyed with the

[NAME_40] or the building of which it forms part. The rear

garden claimed falls into two parts. The first part is that which lies

beyond the hedge that divides the garden and which was not included

in the 2015 enfranchisement. The second part is the area between the

hedge and the building.

121. The First Respondent does not oppose the claim to the strip of garden

beyond the hedge, which has always been treated as the private garden of

the [NAME_40] and was only omitted from the registered title to the

surrendered underlease of that flat by a conveyancing error and a

misleading plan. The Tribunal agrees that the evidence demonstrates that

this area belongs to or was usually enjoyed with the [NAME_40] at

the Relevant Date.

122. However, the First Respondent does oppose the claim to the remainder of

the rear garden (referred to hereafter as the front rear garden area; that is

to say the area of garden between the building and the hedge). That claim

can only succeed if the Applicant has established that this area of

garden is demised by the lease of the [NAME_40] and in addition

belongs to or is usually enjoyed with the [NAME_40].

31

123. It is not disputed that the Headlease of the [NAME_40] demises the

garden, nor that that lease is a qualifying tenancy. The question is whether

the front rear garden “belongs to” or is “usually enjoyed with” the [NAME_40]. [NAME_15] submits that “belonging to” means appurtenant

property which is private or exclusive to the flat in question. He does

not seek to argue that this applies to the nearer part of the rear garden.

124. However, he argues that “usually enjoyed” with the flat encompasses

appurtenant property which is not exclusive to the flat in question but

which is nevertheless enjoyed with the flat as opposed to something

which happens to be demised by the lease but which really has

nothing to do with the flat. He says that the front rear garden falls into

that category in that [NAME_52] has used it with the flat since 1983.

Indeed, he says that [NAME_86] as headlessee has a legal easement by

virtue of the grant of the (now surrendered) underlease in 1980 which

will have converted the previous permissive user into an easement through

the operation of section 62 of the Law of Property Act 1925.

125. It is remarkable that the courts appear not to have found it necessary to

distinguish between the two alternative limbs of section 1(7) which can be

found in many Acts of Parliament over at least the last 100 years, let alone

distinguish them in the way suggested by [NAME_15]. It is very unlikely

that in adopting the well used definition of appurtenant property in

section 1(7) of the 1993 Act Parliament will have intended a meaning as

radical as that suggested by [NAME_15]. Had it meant to do so it could have

made that clearer by more explicit words. By contrast, areas used as of

right in common with others are dealt with by section 1(3)(b) of the Act.

126. It is far more likely that whether appurtenant property belongs to or is

usually enjoyed with a flat depends on whether or not it is contiguous to

the flat or is within the curtilage of the building and is usually enjoyed with

the flat and not with the flat and other flats. Until 15 March 2017 the

[NAME_40] had been held since 26 September 1980 on an

underlease which also demised to the underlessee the area of garden

beyond the hedge (save for the strip dealt with in paragraph 115 above).

127. The remainder of the rear garden has never been let on an underlease.

The occupiers of the flats at No 7, including the [NAME_40], have

simply used it in common at different times. The garden and the [NAME_40] are now held on the same lease but that does not mean that

the garden belongs to or is usually enjoyed by that flat exclusively at the

Relevant Date.

128. The Tribunal agrees with [NAME_39] that read together section 1(3)(a) and section 1(7) require that the appurtenant property belongs to or is usually enjoyed with the flat under the qualifying tenancy. The question is

32 whether the evidence shows that the near part of the rear garden is usually enjoyed with the [NAME_40] and that flat alone at the relevant date of 18 February 2019.

129. The Tribunal finds that the evidence does not establish that. [NAME_52] simply says that since he became a qualifying tenant he as an individual has used and still uses the sheds in front of the fence for storage and together with a tenant of one of the lower flats has mowed the (near) rear garden lawn but that does produce the result that the whole of that garden belongs to” or is “usually enjoyed with” the flat i.e. the [NAME_40]. It belongs to the building as a whole and is used by occupiers of the flats within it. 130. [NAME_15] drew the Tribunal’s attention to [NAME_88] v Corporation of Trinity House [2018] 1 WLR 4876 (CA). That

bizarre if in a case like the present, where one of the qualifying tenants

actually has a lease of the garden and thus the absolute right of use, and

hence section 1(3)(a) applies, that somehow the nominee purchaser were

not entitled to the [NAME_41]. He says that a tenant to whom the

appurtenant property is demised cannot be in a worse position than a

qualifying tenant who has a mere easement of use with others. 131. That outcome might well seem bizarre, but arguably only if a headlessee of

a flat who has a lease of the garden used in common with the occupiers of

other premises is somehow precluded from relying on section 1(3)(b).

However, the Tribunal has not heard argument, at least so far, on the

applicability of that provision in the present case.

Decision

132. The Tribunal accordingly determines that for the purposes of

33

the preliminary issue:

(1) The area contained in Title K952300 and edged blue on Plan

1 attached to the section 13 notice does not qualify as an

additional [NAME_41] within section 1(2)(a) of the 1993 Act.

(2) The rear garden area at [NAME_2] in Title

K448284 which area comprises the dividing hedge and beyond

up to the area contained in Title TT37522 is an additional

[NAME_41] under section 1(2)(a) of the 1993 Act by virtue of

being appurtenant property within section 1(3)(a) of that Act.

(3) The remainder of the rear garden within title K448284 does

not qualify as an additional [NAME_41] under section 1(2)(a) of the

1993 Act by virtue of section 1(3)(a) of that Act. 133. The Tribunal agrees with [NAME_15] that the preliminary issue is whether

the areas claimed by the Applicant qualify as additional freeholds under

section 1(2)(a) of the 1993 Act. Furthermore, the Act does not require a

claimant to specify in the claim notice which limb of section 1(3) of the Act

applies to the property claimed by virtue of section 1(2)(a). 134. The decision in paragraph 132 above is confined to the matter of whether

the property claimed by the Applicant under section 1(2)(a) qualifies by

virtue of section 1(3)(a) of the Act. If the Applicant wishes to argue that the

property claimed qualifies by virtue of section 1(3)(b) of the Act it should

do so by a request to the Tribunal, to be received not later than 14 days

after the date of this decision. Following receipt of any such request the

Tribunal will issue Directions as necessary. 135. In the meantime the Tribunal directs, under Rule 6 of the Tribunal

Procedure (First Tier Tribunal)(Property Chamber) Rules 2013, that in the

case of the present decision the period within which an application for

permission to appeal may be made under Rule 52 of the said Rules shall

not start to run until such date as the Tribunal shall specify.

34