First-tier Tribunal Invalidates Right to Manage Notice Due to Omissions

OUTCOME: Dismissed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AH/LRN/2020/0027 HMCTS code (paper, video, audio) : P: PAPER REMOTE Property : 18 [ADDRESS] [POSTCODE] Applicant : [redacted] : Ms [COUNSEL] [NAME] (Ref: LM49-01) Respondent : [redacted] : [COUNSEL] [RESPONDENT] of application : In relation to the denial of the right to manage Tribunal members : Mr [NAME] B [NAME] [NAME] Mr [NAME] M.Sc Venue : Remote Date of decision : 15 September 2021

DECISION

Covid-19 pandemic: description of hearing: This has been a remote paper hearing , which had not been objected to by the parties. The documents the Tribunal referred to are in a single bundle comprising 52-pages submitted jointly by the parties.

Determination 1. The Tribunal has determined the Right to Manage Claim Notice served on the [NAME] is defective and invalid. Application 2. This is an application relating to a right to manage Claim Notice served pursuant to Chapter 1, Commonhold & Leasehold Reform Act 2002 (‘the Act’) seeking rights to manage 18 [ADDRESS] [POSTCODE] (“the Property”). Background 3. The Applicant, the 18 [APPELLANT] ('[COMPANY]') made an application dated 18 June 2020 to seek a determination that on the relevant date, [COMPANY] was entitled to acquire the right to manage the Property.

4. The Property comprises two dwellings situate at 18 [ADDRESS] [POSTCODE]. 5. [COMPANY] issued a Notice of Claim dated 14 May 2020, signed by the qualifying tenants, on [RESPONDENT] ('the Respondent'). Appended to the Notice were copies of the Memorandum & Articles of Association and Certificate of Incorporation of [COMPANY]. 6. [NAME] served a Counter Notice dated 16 June 2020. This alleged the Notice served by [COMPANY] was invalid, because: i. It did not comply with the requirements of the prescribed regulations. ii. [COMPANY] was not entitled to acquire the right to manage the premises specified in the Claim Notice because the Notice was not served on each qualifying person as required by the Act. iii. It alleged that due to these defects in the [COMPANY] did not have the acquire right to manage the premises. 7. [COMPANY] made an application to the Tribunal on 18 June 2020 for this matter to be Determined.

8. Directions dated 10 May 2021 were issued by the Tribunal. These identified a single issue to be decided, namely, whether on the date on which the Notice of Claim was served [COMPANY] was entitled to acquire the right to manage the premises specified in the Notice.

9. The Directions identify failures alleged in sections 80(8), 80(9) and 79(8) of the Act.

10. The Respondent in its statement of reply dated 21 July 2021 withdrew the objection to the Notice under s.79(8). Legislation The relevant legislation is as follows: Commonhold and Leasehold Reform Act 2002 Section 80: Contents of claim notice (1) The claim notice must comply with the following requirements. (2) It must specify the premises and contain a statement of the grounds on which it is claimed that they are premises to which this Chapter applies. (3) It must state the full name of each person who is both— (a) the qualifying tenant of a flat contained in the premises, and (b) a member of [COMPANY], and the address of his flat. (4) And it must contain, in relation to each such person, such particulars of his lease as are sufficient to identify it, including— (a) the date on which it was entered into, (b) the term for which it was granted, and (c) the date of the commencement of the term. (5) It must state the name and registered office of [COMPANY]. (6) It must specify a date, not earlier than one month after the relevant date, by which each person who was given the notice under section 79(6) may respond to it by giving a counter-notice under section 84. (7) It must specify a date, at least three months after that specified under subsection (6), on which [COMPANY] intends to acquire the right to manage the premises. (8) It must also contain such other particulars (if any) as may be required to be contained in claim notices by regulations made by the appropriate national authority. (9) And it must comply with such requirements (if any) about the form of claim notices as may be prescribed by regulations so made.

Section 81 Claim notice: supplementary (1) A claim notice is not invalidated by any inaccuracy in any of the particulars required by or by virtue of section 80. Right to Manage (Prescribed Particulars and Forms) (England) Regulations 2010/825

4: Additional content of claim notice A claim notice shall contain, in addition to the particulars required by section 80(2) to (7) (contents of claim notice) of the 2002 Act— (c) a statement that the notice is not invalidated by any inaccuracy in any of the particulars required by section 80(2) to (7) of the 2002 Act or this regulation, but that a person who is of the opinion that any of the particulars contained in the claim notice are inaccurate may— (i) identify the particulars in question to [COMPANY] by which the notice was given; and (ii) indicate the respects in which they are considered to be inaccurate; (d) a statement that a person who receives the notice but does not fully understand its purpose, is advised to seek professional help; and (e) the information provided in the notes to the form set out in Schedule 2 to these Regulations. 8: Form of notices (1) Notices of invitation to participate shall be in the form set out in Schedule 1 to these Regulations. (2) Claim notices shall be in the form set out in Schedule 2 to these Regulations. (3) Counter-notices shall be in the form set out in Schedule 3 to these Regulations.

A copy of the prescribed Notice is appended at Annex A [COMPANY]'s submission 11. [COMPANY] referred the tribunal to authority [COMPANY] –v– [COMPANY]. This authority is relied upon by the Applicants as it directs that a claim notice that does not comply with all of the statutory requirements of the Act may still be valid. [COMPANY] specifically referred to the following: 'Lastly, there may be a distinction to be drawn between the failure to satisfy jurisdictional or eligibility requirements on the one hand and purely procedural requirements on the other.’

12. The Respondent identified that the Claim Notice was submitted without the signatures of [COMPANY] officers. [COMPANY] claimed there was no explicit requirement in the Right to Manage Prescribed Particulars & Forms (England Regulations 2010) ('the Regulations') that a claim notice must be signed. A copy of the prescribed Claim Notice is appended to this decision at Annex A. 13. [COMPANY] also relied on s.81(1) of the Act and note 9 of the prescribed form. This states that the notice is not invalidated by any inaccuracy in any of the particulars required under the Act. They assert the inaccuracies and errors in the Claim Notice are not fatal to the validity of the notice. 14. [COMPANY] also referred the Tribunal to paragraph 4(c) of the Regulations, which require any person who is of the opinion that any of the particulars contained in a claim notice are inaccurate may identify the particulars in question and advise the Applicants. 15. [COMPANY] alleges the first notification they received the Respondent had identified erroneous details or content within the Claim notice, was in the Respondent's statement of case. This was submitted in response to the application made by [COMPANY] to the Tribunal. The Respondent's evidence 16. The Respondent submits that the Claim Notice must be in the prescribed form and this includes all relevant notes.

17. The Respondent has relied upon s.80(9) of the Act, which states: 'Must comply with such requirements, if any, about the form of claim notices, as may be prescribed by Regulation so made.'

18. The form of a claim notice is prescribed by Schedule 2 of the 2010 Regulations.

19. The prescribed Claim Notice form includes notes. The Claim Notice also has a signature space and requirement.

20. Paragraph 8 of the 2010 Regulations specifies the form of notices for the purposes of the 2002 Act.

21. Paragraph 8, (2) provides that: 'Claim notices shall be in the form set-out in schedule 2.'

22. The Respondent alleges the failure to sign the document was in breach of s.80. The Respondent also alleges that the omission of an entire paragraph contained within the prescribed format invalidates the notice. The Respondent alleges it cannot be remedied by reliance upon s.81(1) of the 2002 Act.

23. The Respondent asserts that the omission of a notes paragraph in the Claim Notice does not constitute an inaccuracy. The Respondents describe an inaccuracy as a spelling mistake or typographical error but the complete omission of a prescribed paragraph is not an inaccuracy but a failure in compliance with statute.

24. The Respondent referred to the decision [RESPONDENT] –v– [COMPANY] 2006 (UKUT/80(LC)). This Upper Tribunal decision, is prescriptive about the use of prescribed notes within any statutory notice. This Decision held that: 'As a matter of construction of the statutory scheme, the inclusion of the notes in a prescribed form is essential in the validity of a notice of invitation to participate.' Discussion and conclusion 25. The Tribunal is satisfied that a number of inaccuracies and errors exist in the Claim Notice.

26. The Tribunal has identified two failures in [COMPANY]'s Notice, namely: - i. the lack of a signature by a registered authority of the Company (signature of authorised member or officer); and ii. the omission of the paragraph 1 in the Notes section, which referred to appropriate procedure to be followed should a landlord not be traceable.

27. The Tribunal has carefully weighed the evidence presented by the parties and reviewed the relevant law and submitted authorities.

28. The Tribunal acknowledges that in the recent past, physical signature of notices has proven very difficult to achieve under Covid-19 restrictions.

29. The Tribunal does not see this as a fatal flaw, particularly as the covering letter was signed by an authorised officer of [COMPANY].

30. The Tribunal is concerned that the prescribed form for the Claim Form, as specified by the 2010 Regulations, was not used by [COMPANY] in making the Notice. The paragraph note 1 was omitted from the submitted Notice.

31. The Tribunal relies upon the Upper Tribunal guidance that confirms the requirement to use a prescribed form in a statutory notice. This was not done by [COMPANY].

32. The Tribunal accepts that the lack of signature is not a fatal flaw in the Claim Notice. However, the Tribunal is unable to accept that failure to use the prescribed form is an error or an inaccuracy which can be remedied by s.81(1)(a) of the Act. The Claim Notice served by [COMPANY] failed to satisfy the requirements of s. 80(9) of the Act and the Tribunal therefore determines that the Notice is invalid.

Name: [NAME]: 14 September 2021

Valuer Chairman

Annex A Prescribed Notice

CLAIM NOTICE

ANNEX – RIGHTS OF APPEAL i. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) then a written application for permission must be made to the First- tier Tribunal at the Regional office which has been dealing with the case. ii. The application for permission to appeal must arrive at the Regional office within 28 days after the Tribunal sends written reasons for the decision to the person making the application. iii. If the application is not made within the 28 day time limit, such application must include a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit. iv. The application for permission to appeal must identify the decision of the Tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal, and state the result the party making the application is seeking.