First-tier Tribunal Rules in favour of Right to Manage Application

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AP/LRM/2019/0008 Property : [ADDRESS], London [POSTCODE] Applicant : [redacted] : [COMPANY] ([NAME]) Respondent : [redacted] : [COUNSEL] [COMPANY] of [NAME] : [NAME] in relation to the denial of the Right to Manage Tribunal member : Judge Pittaway Date of decision : 3 July 2019

DECISION

Decisions of the Tribunal 1. The Tribunal determines that the applicant was on the relevant date entitled to acquire the right to manage the premises pursuant to section 84(5)(a) of the Act.

2. Therefore, in accordance with section 90(4), within three months after this determination becomes final the Applicant will acquire the right to manage these premises.

3. The tribunal orders the respondent to refund the fee of £100 paid by the applicant within 28 days of the date of this decision.

4. No costs of the proceedings to the respondent are awarded because the [NAME] for the right to manage has not been dismissed

The [NAME]

5. By a claim notice dated 23 January 2019 the applicant gave notice that it intended to acquire the Right to Manage [ADDRESS], London [POSTCODE] (“the premises”) on 1 July 2019.

6. The [NAME] served a counter-notice dated 5 March 2019 asserting that the applicant had failed to establish compliance with sections 79(3), 80(3), 80(8) and 80(9) of the Act.

7. On 2 May 2019 the tribunal received an [NAME] under section 84(3) Commonhold and Leasehold Reform Act 2002 (the “Act”) for a determination that on the relevant date, the applicant [COMPANY] was entitled to acquire the Right to Manage the premises. In this the applicant indicated that it was content for the tribunal to deal with the [NAME] without a hearing.

8. The tribunal identified that the only issue before it to determine was whether on the date on which the notice of claim was given the applicant was entitled to acquire the Right to Manage the premises. It issued directions on 23 May 2019 directing that the matter would be determined without a hearing unless either party requested one. Neither party has done so.

9. The directions further required the respondent to provide the applicant and the tribunal with a statement of case including legal submissions by 23 May 2019. It has not done so. The law 10. The relevant provisions of the Act are referred to in the decision below.

Evidence and submissions 11. In its counter-notice, the respondent raised failure by the applicant to comply with sections 79(3), 80(3), 80(8) and 80(9) of the Act, but gave no details of how the applicant had so failed. And the respondent has not provided a statement of case as directed by the tribunal.

12. The only document from the respondent which indicates the basis upon which it challenged the validity of the [NAME] is an e mail of 25 March 2019 from the [NAME] to an unidentified recipient (“Legal Administrator 1”), included by the applicant with the [NAME], stating that the respondent had concerns as to the validity of the register of members and the due process of registration of the members, because of an alleged discrepancy between two versions of the register; and that the respondent was therefore concerned that there might be consequential inaccuracies affecting compliance. What these consequential inaccuracies might be are unspecified.

13. The [NAME] to the tribunal included a statement by [NAME] that when the Notice of Claim was served all the qualifying tenants were (and still were at the date of the statement) members of the [COMPANY], that the notice gave the information required by section 80(3), that it complied with section 80(8) and section 80(9). 14. [NAME] has drawn the tribunal’s attention to the open correspondence that it sent the respondent on 13 May 2019 inviting the respondent to withdraw its counter-notice. The respondent not having done so the applicant invited the tribunal to make an immediate determination in favour of the applicant.

15. By e mail to the tribunal of 30 May 2019, copied to the [NAME], [NAME] requested the reimbursement of its [NAME] fee of £100. The Tribunal's decisions and reasons 16. Having considered the documents which accompanied the [NAME], the tribunal determines the notice of invitation to participate is valid.

17. The only submission by the respondent (if the e mail from the [NAME] can be considered as such) appears to relate to a discrepancy between two versions of the members’ register. The tribunal are satisfied on the basis of the evidence before it that the applicant had complied with section 80(3), which requires the Claim Notice to state the full name of each person who is both the qualifying tenant of a flat in the premises, and a member of the [COMPANY].

18. Further, by section 81(1) of the Act a claim notice is not invalidated by an inaccuracy in any of the particulars required by or by virtue of

section 80 of the Act, so that any discrepancy between two versions of the members’ register would not invalidate the Claim Notice.

19. As to the date upon which the applicant acquires the right to manage the premises, the tribunal is bound by section 90(4) of the Act, which provides that the applicant acquires the right three months’ after this determination becomes final. According to section 84(7): “(7) A determination on an [NAME] under subsection (3) becomes final— (a) if not appealed against, at the end of the period for bringing an appeal, or (b) if appealed against, at the time when the appeal (or any further appeal) is disposed of.” 20. In light of the failure by the respondent to comply with Directions and taking into account the tribunal’s determinations above the tribunal orders the respondent to refund the fee of £100 paid by the applicant within 28 days of the date of this decision.

21. As to costs, Section 88(3) of the Act states: “(3) A [COMPANY] is liable for any costs which such a person incurs as party to any proceedings under this Chapter before a leasehold valuation tribunal only if the tribunal dismisses an [NAME] by the company for a determination that it is entitled to acquire the right to manage the premises.” 22. In the light of the Tribunal’s decision, there is no question of awarding any costs of the proceedings to the respondent because the [NAME] for the right to acquire has not been dismissed.

Name: Judge Pittaway

Date: 3 July 2019

Rights of appeal

By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal ([NAME]), then a written [NAME] for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28 day time limit, such [NAME] 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 [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] 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 [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal ([NAME]).