First-tier Tribunal Grants Right to Manage to RTM Company

OUTCOME: Allowed

1 © CROWN COPYRIGHT 2025

Case Reference : HAV/18UB/LRM/2025/0604

Property : [ADDRESS] [POSTCODE]

Applicant : [redacted] : [NAME]

Respondent : [redacted] [RESPONDENT] [COUNSEL] [NAME] [COUNSEL] : n/a

Type of Application : Determination of entitlement to acquire the (No Fault) Right to Manage under s.84(3) of the Commonhold and Leasehold Reform Act 2002

Tribunal Member(s) : Judge D Gethin

Date type and venue of Hearing : On the papers

Date of Decision : 3 September 2025

DECISION

FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

2 Summary of the Decisions of the Tribunal

1. The Tribunal determines that the Applicant was entitled on the relevant date to acquire the right to manage of [ADDRESS] [POSTCODE].

The Application

2. The Tribunal received an application from the Applicant’s representative, [NAME] (“WBW”), dated 11 February 2025 under section 84(3) of the Commonhold and Leasehold Reform Act 2002 ("the 2002 Act") for a decision that, on the relevant date, the [COMPANY] was entitled to acquire the Right to Manage in relation to the Property (pp. 1-9).

3. The Respondent comprises the four owners of the freehold of the Property, all of whom are leaseholders in the Property. The members of the [COMPANY] are three of those owners, namely those other than [NAME] (“Ms [RESPONDENT]”). To avoid confusion, I will not refer to the Respondent below but refer to Ms [RESPONDENT], as she is the only owner that makes up the Respondent who objects to the application.

4. By a Claim Notice dated 13 January 2025, WBW gave notice in the prescribed form that the Applicant intended to acquire the Right to Manage the Property on 15 May 2025 (pp. 122-123).

5. By Counter Notice dated 7 February 2025, Ms [APPELLANT] disputed the claim, alleging that the Applicant was not entitled to acquire the right to manage. She argues that as the freeholders had previously collectively enfranchised, an [COMPANY] cannot override or circumvent the existing enfranchisement or its leases. She considers it a deliberate attempt by the other leaseholders to circumvent her in the decision making and to disregard her disabilities. Ms [NAME] refers to an earlier claim notice sent to her dated 9 January 2025. Ms [NAME] also argues that the later claim notice, upon which the Applicant seeks to rely and which Ms [APPELLANT] states is dated 15 and not 13 January 2025 contains inaccuracies (pp. 124-125).

6. The Tribunal has identified a single issue to be decided namely whether on the date on which the notice of claim was given, the Applicant was entitled to acquire the Right to Manage the Property specified in the notice.

7. Directions were issued on 9 May 2025 (pp. 10-15). Those Directions indicated a preliminary opinion that the application was likely to be suitable for determination on the papers. There have been no objections to this approach.

8. The Applicant’s Statement of Case was served on behalf of the Applicant by WBW (pp. 94-113). It states that Ms [APPELLANT] has failed to rely upon those grounds by which a respondent may object to the transfer of the right to manage, and that pursuant to section 81 of the 2002 Act, a claim notice

3 is not invalidated by any inaccuracy in the particulars required by or by virtue of section 80.

9. A Response to the application dated 10 July 2025 was served by Ms [NAME] (pp. 114-115) in which Ms [NAME] sets out her grounds of objection.

10. A Bundle of Documents (152 pages) has been provided by WBW.

11. Further to the Directions of Judge Lumby dated 24 July 2025, the parties were notified that the application would be determined on the papers. The Tribunal has accordingly proceeded by way of a paper determination on the evidence and arguments produced by the parties. This is the decision made following that paper determination.

The Issues in Dispute

12. Taking Ms [NAME] witness statement (pp. 50-93) and Ms [NAME] (pp. 114-115) together, the bases on which Ms [NAME] contends that the Company is not entitled to acquire the Right to Manage are set out in detail. Those bases, and therefore the matters for determination by the Tribunal are as follows:

a. collective enfranchisement supersedes a [COMPANY]’s responsibilities and powers; b. that the witness statement of [APPELLANT] is misleading; c. that the Applicant’s directors do not possess the care, skills and diligence to be the directors; d. that the Notice of Invitation to Participate (“NIP”) is in direct conflict with the Freehold and Leaseholds of [ADDRESS] which requires unanimous agreement, and the right to manage is being used to impose majority rule and isolate Ms [NAME] from the decision-making process; e. the claim notice dated 9 January 2025 was invalid; f. the Claim Notice dated 13 January 2025 was invalid as the period in which a Counter Notice may be served is less than one month from the date of service of the Claim Notice; g. the Claim Notice dated 13 January 2025 was invalid because of a number of errors (this was not relied upon in the Response, but these concerns were raised in Ms [NAME] witness statement and I think it would be unhelpful to not have regard to them).

13. The issue in dispute requires a determination as to whether the notice served by the Applicant was valid and whether the counternotice was effective. There is discussion about the Applicant’s motivation, but this is irrelevant to the issue to be determined.

The Relevant Facts

14. The premises comprise a block of 4 self-contained flats, together with the common parts. There are 4 owners in total, whether sole or joint, of the 4 flats.

4 15. It is not in dispute that the Applicant, is [COMPANY] (“the Company”), and that there were 3 Members of the Company from the date of incorporation, namely the owners of Flats 1, 3 and 4.

16. The 3 Members of the Company, all stated to be [NAME], are listed in the Claim Notice. Between them, they owned 3 of the 4 flats. There was 1 owner in total of the other flat, namely Ms [NAME].

17. The articles of association of the Company (“the Articles of Association”) adopt the model form prescribed by the RTM Companies (Model Articles) Regulations 2009 (“the Articles Regulations”).

18. The particular premises defined in the Articles of Association of the Company are recorded as being “[ADDRESS] [POSTCODE]” (p. 130). [NAME] disputes this is the correct address as it should specify “[ADDRESS], [ADDRESS]”, and the Claim Notice states that the Company “claims to acquire the Right to [ADDRESS] [POSTCODE] (the “Premises”).” (p. 122).

19. It is not in dispute that all of the [NAME], insofar as they were [NAME] on the relevant date, were given the NIP dated 13 December 2024 (pp. 116-121).

20. A Claim Notice dated 7 January 2025 was sent under cover of a letter dated 7 January 2025 by WBW (pp. 73-75). Ms [NAME] alleges that there was a material error relating to the date by which the Counter Notice must be served and a discrepancy between the date in the cover letter and the notice as to when the right to manage would be acquired by the Applicant.

21. It is not in dispute that all of the [NAME], insofar as they were [NAME] on the relevant date, were given a revised Claim Notice dated 13 January 2025 (pp. 122-123).

The Law

22. The statutory scheme is set out in sections 71 to 94 inclusive of the 2002 Act. The relevant parts of that scheme for the purpose of this application are those which set out the key general provisions and those upon which Ms [NAME] has based her objections.

23. Section 71 provides that a [COMPANY] may acquire the right to manage premises. Section 72(1) defines premises as needing to consist of “a self- contained building or part of a building, with or without appurtenant property”. The premises must contain two or more flats held by [NAME]. Section 73(2) provides that a [COMPANY] is a private company limited by guarantee whose Memorandum of Association states that its object, or one of them, is the acquisition and exercise of the right to manage premises.

5 24. Section 74(1) provides that [NAME], and from the date on which it acquires the right to manage any landlord under a lease of the whole or any part of the premises, are entitled to be members of the [COMPANY].

25. Section 78(1) requires that the NIP is to be served on all [NAME] who are not members of the [COMPANY] and have not agreed to become members of the company. A [NAME] tenant is one who holds a long lease. The following clause, section 78(2) sets out the information to be provided. Section 78(3) requires the NIP to comply with such requirements (if any) about the form of the NIP as prescribed by regulations. Section 78(7) provides that a NIP is not invalidated by any inaccuracy in the particulars required to be included.

26. The relevant parts of Section 79 similarly provide that the claim notice:

a. may not be given unless each person required to be given a NIP has been given such a notice at least 14 days before – s.79(2); b. must be given by an [COMPANY] which complies with subsection (4) and (5) [which relate to the membership of the [COMPANY]] – s.79(3); c. must be served on the landlord under a lease of the whole or part of the premises, any third party to such a lease, and any manager appointed under Part 2 of the Landlord and Tenant Act 1987, unless such person(s) cannot be found or their identity cannot be ascertained – s.79(6)-(7); and d. the claim notice must be given to every [NAME] tenant of a flat – s.79(8).

27. Sections 80(2)-(7) sets out the information to be provided in the claim notice including the date by which a person served with a notice may give a counter-notice under section 84. Sections 80(8)-(9) requires the claim notice to comply with such requirements (if any) about the information to be included and the form of the claim notice as prescribed by regulations. Section 81(1) provides that a claim notice is not invalidated by any inaccuracy in the particulars required to be included.

28. There has been a significant quantity of decisions variously of the First- tier Tribunal (Property Chamber), the Upper Tribunal (Lands Chamber), the Court of Appeal and the Supreme Court in respect of disputed claims for the right to manage, involving what has been described as “trench warfare”.

29. I will refer to and apply relevant authorities below.

The Tribunal’s Decision and Reasons

30. The present application concerns an uncommon situation. Each leaseholder is also a joint owner of the freehold Property. No separate resident management company was ever incorporated. As a result of the passage of time and the changing owners, it is understood that all flats

6 have been subject of conveyance since June 2020 and none of the present owners are the original lessees. There appears to be a dearth of administrative paperwork or evidence of agreements as to how matters should be managed by the owners of the Property.

31. It appears that the Applicant’s position is that unanimous consensus amongst the Respondent is no longer achievable, and that incorporating a [COMPANY] may help to regularise matters with respect to the Property.

32. I will deal with the points raised by Ms [NAME] in the order in which she raised them in her Statement of Case (pp. 114-115).

Collective enfranchisement supersedes a [COMPANY]’s responsibilities and powers

33. The freehold is owned by the [NAME]. Any collective enfranchisement precedes, and not supersedes, the Applicant’s present right to manage claim and would not be an impediment to such a claim being made.

Witness statement of [NAME] is misleading

34. Ms [NAME] raises objections to Ms [NAME] witness statement but does not, in any great detail, specify what she objects to. Given the grounds upon which Ms [NAME] may object to the application are limited by statute, I am satisfied that I am not required to give significant weight to matters raised in Ms [NAME] witness statement and that I need not make any particular finding regarding the veracity of Ms [NAME] witness statement.

Notice of Invitation to Participate (“NIP”) is in direct conflict with the Freehold and Leaseholds of [ADDRESS] which requires unanimous agreement, and the right to manage is being used to impose majority rule and isolate Ms [NAME] from the decision-making process

35. Ms [NAME] relies upon notes of a meeting on 18 October 2023 (p. 70) recording that [NAME] of [NAME] told those present that where there is no management company in place, all actions taken by the Respondent must be done so on a unanimous basis.

36. I am not required to make any finding on that. Whether or not the Respondent currently requires unanimity in its decision making does not displace the rights of leaseholders to make an application for the transfer of the right to manage under the 2002 Act.

37. Ms [APPELLANT] has not pointed to any evidence to show that the Applicant is not entitled to make the present application, and any clause purporting to disapply Part 2, Chapter 1 of the 2002 Act would be void.

Applicant’s directors do not possess the requisite care, skills and diligence

7 38. There is no merit to this submission as it does not fall within the statutory grounds upon which a respondent may object to the Company acquiring the right to manage the Property.

Claim notice dated 9 January 2025 was invalid

39. The Applicant recognised that there were inaccuracies in the first notice and served the, second, Claim Notice dated 13 January 2025. The first notice is deemed withdrawn and I have not considered it further.

Claim notice dated 13 January 2025 was invalid

40. I have taken the issues of the reply date and the alleged ‘inaccuracies’ in the Claim Notice under the same heading as to whether they render the notice invalid, such that the Applicant should lose its statutory right to transfer the right to manage to the Company.

41. In her witness statement (para. 13, p. 18), Ms [NAME] states that WBW served Ms [NAME] with the revised Claim Notice dated 13 January 2025. In her witness statement (para. 16, p. 52), Ms [NAME] states that she received the notice on 16 January 2025.

42. In establishing the date the Claim Notice was given, I have had regard for the fact that section 111(1)(b) of the 2002 Act provides that a notice may be given by post, although other methods of service may be used. If postal service is adopted, then a claim notice is “given” for the purpose of s.79(1) on the date on which the letter would be delivered in the ordinary course of post, see Moskovitz v 75 [COMPANY] [2010] UKUT 393 (LC). The ordinary course of post is as follows: first class post aims to deliver letters the next working day.

43. I also have regard for the fact that Ms [NAME] accepts that the provided date for commencement of management (15 May 2025) is correct, but that the reply date (9 February 2025) is incorrect.

44. I therefore find, without inferring any criticism of Ms [NAME] evidence as to when the notice was actually received, that the Claim Notice was given for the purposes of the 2002 Act on 14 January 2025.

45. Section 79(1) provides that the date the Claim Notice is given is the “relevant date”. Section 80(6) provides that the Claim Notice “must specify a date, not earlier than one month after the relevant date” by which a person may give a counter-notice under Section 84.

46. I find that the earliest date specified in the Claim Notice by which a counter-notice should be given was 14 February 2025 and that the date given of 9 February 2025 was an inaccuracy. The question then is what, if anything, is the consequence?

47. I have considered the Supreme Court’s relatively recent decision in [COMPANY] (Sunderland) [COMPANY] v [NAME] Company [COMPANY] [2024] UKSC 27 (“A1 Properties”). That is a case concerning the failure

8 of an [COMPANY] to serve an intermediate landlord with the claim notice, but the Supreme Court’s judgment provides useful guidance on the approach the Tribunal should take generally in dealing with notices which contain defects.

48. I am satisfied that the correct approach is not to evaluate whether the notice is or is not valid, and apply the technical approach which has underlined much of the caselaw in this contentious area, but to evaluate whether the procedural failure has the effect of invalidating the process of the transfer of the right to manage.

49. In doing so, regard should be had for (a) the purpose served by the statutory requirement, and (b) the specific facts of the case. In deciding whether a relevant party has been deprived of a significant opportunity to have their opposition to the making of an order to transfer the right to manage considered, regard should be had for the substantive force of the objections they could have raised and would have wished to raise, as well as to whether they have actually had the opportunity to have their objections considered in spite of the procedural defect.

50. I have therefore considered whether the acquisition of the right to manage should be lost and I have decided that it should not for the following reasons:

a. Ms [NAME] gave a counter-notice on 7 February 2025 (p. 124-125) outlining her objections. Ms [NAME] later expanded on those concerns, as she is permitted to do, in her later witness statement (pp. 50-93) and Response (pp. 114-115). Had Ms [NAME] given her counter-notice at any time up to 14 February 2025, I would have considered it to be a valid counter-notice that would put the Applicant to making an application to the First-tier Tribunal; b. s.79(6) does not specify a date when the claim notice must be given or exclude the possibility that it be given at a later date; c. Ms [NAME] has not asserted that the incorrect reply date has caused any prejudice or that any injustice would arise from applying Section 81(1) – that is the provision which specifies that a “claim notice is not invalidated by any inaccuracy in any of the particulars required by or by virtue of section 80”; d. [NAME] will be entitled to be a member of the Company under s.74(1)(b).

51. I would record that whilst Ms [NAME] giving a counter-notice was a reason as to why I did not consider the failure to give the correct reply date should be fatal on this occasion, that should not be seen as encouragement to strategically refuse to give a counter-notice in the hope that the inaccuracy will be considered fatal. I would still have had regard for what, if any, prejudice or injustice might arise by failing to record the correct reply date, as well as for the effect of Section 81(1). In this case, the reply was a few days’ earlier than permitted, and Ms [NAME] had ample opportunity to provide her objections.

9 52. I then must consider what, if any, consequence is occasioned by the following inaccuracies in the Claim Notice as Ms [NAME] listed in her witness statement (para. 24, p. 54):

a. her name is not provided in full; b. the Property address omits ‘30’ from [ADDRESS], [ADDRESS]; c. Part 2 of the Schedule to the Claim Notice gives the impression that the Members of the Company have all been resident since 2006.

53. Again, I have applied the approach of the Supreme Court in [COMPANY] and I have considered whether the acquisition of the right to manage should be lost as a result of the ‘inaccuracies’ that Ms [NAME] describes, and I have decided that it should not for the following reasons:

a. the NIP is addressed to “[NAME[NAME]” and gives “[ADDRESS], [POSTCODE]” as her address. The Claim Notice is addressed simply to “Ms [NAME]” rather than “Ms [NAME]”, and without an address. It is evident that Ms [NAME] refers to herself as [NAME[NAME] in correspondence and the Members of the Company as well as third parties refer to her in that way as well, see for example pp. 61-75. No cover letter or envelope was evidenced showing how the Claim Notice was given to Ms [NAME]. Nonetheless, I am satisfied that it was addressed to Ms [NAME] and she would have recognised the notice as being intended for her, and indeed she responded with her counter-notice; b. the Freehold Title for DN176830 does give the address of the Property as “being [ADDRESS], [ADDRESS], Exmouth ([POSTCODE])”. That is also the address used by Royal Mail on its Postcode Finder. Nevertheless, the premises are clearly identified and would not be mistaken because of the absence of ‘30’, a minor omission, from the address. Whilst it is not within the Tribunal’s jurisdiction to direct a party to do so, it may be helpful in rebuilding the relationship between the parties if the Applicant would take steps to amend its articles of association to correct any error or omission; c. the details in Part 2 are prescribed. In the case of an assignment of a lease such as by way of a conveyance, as opposed to a lease extension, the original lease is not subject to surrender and regrant. The original parties to the lease remain the same insofar as the deed itself. I do not consider giving the date the lease was entered into, which may or may not be the same as the date of commencement of the term, implies or is intended to imply the current owner is the original party to the lease; d. Ms [NAME] has not asserted that the inaccuracies above, insofar as they can be considered inaccuracies, has caused any prejudice to Ms [NAME] or that any injustice would arise from applying Section 81(1) – that is the provision which specifies that a “claim notice is not invalidated by any inaccuracy in any of the particulars required by or by virtue of section 80”;

10 e. [NAME] will be entitled to be a member of the Company under s.74(1)(b).

Conclusion

54. For the reasons given above, the Tribunal is satisfied that the Applicant was entitled to acquire the right to manage the Property on the relevant date.

RIGHTS OF APPEAL

1. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision. Where possible you should send your further application for permission to appeal by email to [EMAIL] as this will enable the First-tier Tribunal to deal with it more efficiently.

3. If the person wishing to appeal does not comply with the 28-day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.