Local Housing Authority Granted Interim Empty Dwelling Order

OUTCOME: Allowed

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Case Reference

: CAM/00KC/HYI/2021/0003

HMCTS

: CVP

Property

: 81 Corbet Ride, Leighton Buzzard, Bedfordshire [POSTCODE]

Applicant

: [redacted] Representative

: [APPELLANT]

Respondents : [redacted] [NAME] of Application : Application for authorisation to make an [NAME] (Ss 133 & 134 [NAME] 2004)

Tribunal

: Judge JR [NAME]

Date of Application : 2nd September 2021 Date of Directions : 21st May 2021 Date of Hearing : 27th September 2021 Date of Decision : 27th September 2021

____________________________________________

DECISION ____________________________________ © CROWN COPYRIGHT 2021

FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

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Covid-19 Pandemic: Remote Video Hearing

This determination included a remote video hearing together with the papers submitted by the parties which has been consented to by the parties. The form of remote hearing was Video. A face-to-face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing/on paper. The documents referred to are in a bundle, the contents of which are noted.

Pursuant to Rule 33(2A) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 and to enable this case to be heard remotely during the Covid- 19 pandemic in accordance with the Practice Direction: Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal the Tribunal has directed that the hearing be held in private. The Tribunal has directed that the proceedings are to be conducted wholly as video proceedings; it is not reasonably practicable for such a hearing, or such part, to be accessed in a court or tribunal venue by persons who are not parties entitled to participate in the hearing; a media representative is not able to access the proceedings remotely while they are taking place; and such a direction is necessary to secure the proper administration of justice.

Decision

1. The Tribunal authorises the Applicant to make an interim [NAME] in the form as set out at page A64-69 of the Bundle with the following amendments: “DRAFT” is to be deleted The Order is to be addressed to: 1) [APPELLANT] as the relevant proprietor at such address as he has given for communications 2) [NAME] as the relevant person at 1 [ADDRESS] [POSTCODE] The Schedule narrative is to be completed “and as such shall carry out or arrange to have carried out the following works” followed by the table of works.

2. The Tribunal makes no order for payment of compensation.

Reasons

Introduction

3. On 16th April 2021 the Applicant applied for authorisation for an interim [NAME] in respect of the Property. The Order will enable the Applicant to enter the Property, because it is a dwelling, to undertake work and then to let it on the open market. In the absence of the owner’s consent being obtained the Applicant can make a Final Order without the further involvement of the Tribunal.

4. Following receipt of the Application, the Tribunal made a Directions Order on 21st May 2021.

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The Law

5. The relevant law is contained in sections 133, 134 and Schedules 6 and 7 of the [NAME] 2004 and the [NAME] ([NAME]) (Prescribed Exceptions and Requirements) (England) Order 2006.

6. Section 133 states that a local [NAME] authority may make an interim [NAME] in respect of a dwelling which is wholly unoccupied and the relevant proprietor is not a public sector body, after it has obtained authority from a First-tier Tribunal (Property Chamber) (Residential Property).

7. Before making an application, the authority must: a) identify the “relevant proprietor” in relation to the dwelling. The relevant proprietor means, in this case, “the person who has the freehold estate in the dwelling” (section 132(4)(c)(ii); b) “make reasonable efforts” to find out what the relevant proprietor is intending to do “to secure that the dwelling is occupied” and to notify the relevant proprietor of its intentions to make an application for an Order (section 133(3)); b) take into account the rights of the relevant proprietor and the interests of the wider community when deciding whether to apply for authorisation.

8. Section 134 sets out the matters, which a tribunal must take into account. These are that: - none of the exceptions set out in the [NAME] ([NAME]) (Prescribed Exceptions and Requirements) (England) Order 2006 apply which are: (a) it has been occupied solely or principally by the relevant proprietor and is wholly unoccupied because— (i) he is temporarily resident elsewhere; (ii) he is absent from the dwelling for the purpose of receiving personal care by reason of old age, disablement, illness, past or present alcohol or drug dependence or past or present mental disorder; (iii) he is absent from the dwelling for the purpose of providing, or better providing, personal care for a person who requires such care by reason of old age, disablement, illness, past or present alcohol or drug dependence or past or present mental disorder; or (iv) he is a serving member of the armed forces and he is absent from the dwelling as a result of such service; (b) it is used as a holiday home (whether or not it is let as such on a commercial basis) or is otherwise occupied by the relevant proprietor or his guests on a temporary basis from time to time; (c) it is genuinely on the market for sale or letting; (d) it is comprised in an agricultural holding within the meaning of the Agricultural Holdings Act 1986 or a farm business tenancy within the meaning of the Agricultural Tenancies Act 1995;

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(e) it is usually occupied by an employee of the relevant proprietor in connection with the performance of his duties under the terms of his contract of employment; (f) it is available for occupation by a minister of religion as a residence from which to perform the duties of his office; (g) it is subject to a court order freezing the property of the relevant proprietor; (h) it is prevented from being occupied as a result of a criminal investigation or criminal proceedings; (i) it is mortgaged, where the mortgagee, in right of the mortgage, has entered into and is in possession of the dwelling; or (j) the person who was the relevant proprietor of it has died and six months has not elapsed since the grant of representation was obtained in respect of such person. - the tribunal must take into account the interests of the community and the effect that the order will have on the rights of the owner or any third party - the tribunal must be satisfied of the following matters:  that the dwelling has been wholly unoccupied for at least 2 years or such longer period as may be prescribed;  that there is no reasonable prospect that the dwelling will become occupied in the near future;  that, if an interim order is made, there is a reasonable prospect that the dwelling will become occupied  that the authority has complied with section 133(3) and  that any prescribed requirements have been complied with

9. The [NAME] ([NAME]) (Prescribed Exceptions and Requirements) (England) Order 2006 sets out what information has to be provided to the Tribunal to satisfy it that it has complied with Section 133(3) of the [NAME] 2004 i.e., to tell the owner what the applicant intends to do and what advice has been given.

10. If the Tribunal gives authority for the making of an interim [NAME], it may also make an order requiring the applicant to pay “to any third party specified in the order an amount of compensation in respect of any interference in consequence of the order with the rights of the third party”.

Hearing

11. A hearing was held on 27th September 2021 attended by Ms [NAME] who is a Technical Officer in the [NAME] and Ms [COUNSEL] [NAME] Manager and Ms [COUNSEL], Solicitor, of [APPELLANT] (formerly [APPELLANT]) for the Applicant. The Respondents did not attend.

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Evidence and Considerations

12. The Witness Statement of [NAME] who is a Technical Officer in the [NAME] of the Applicant was provided. This statement was not disputed by the Respondents.

13. [NAME] provided a Schedule to her witness statement setting out in chronological order the steps to determine the condition of the Property, its status as empty, the attempts to determine the relevant proprietor and the attempts to find the relevant proprietor resulting in the service of a Notice of Intention to make an interim [NAME].

Description and Condition of the Property & Locality

14. The Property is a semi-detached two-bedroom bungalow in a residential area of Linslade. A plan and photographs of the Property were provided.

15. Internally the bungalow comprises a hallway, kitchen, living room, two bedrooms and a bathroom.

16. Externally the bungalow has brick elevations under a concrete tile roof, timber framed single glazed windows, timber door, soffits and facias and upvc rainwater goods. At the hearing it was said that the timber of the windows was rotten beyond repair and the replacement with double glazed units would greatly increase the insulation. The garden to all sides of the Property is overgrown. The property is believed to have been constructed in the 1980’s.

17. An inspection was carried out following the exercise of the powers of entry under section 239 [NAME] 2004 and a Schedule of Works was produced as follows: Internal Works Asbestos report, electrical condition report, inspect/service boiler, power flush central heating system, insulate loft, install new consumer unit, install wired smoke and heat detectors, replace windows (5), clear property, deep clean house, redecorate house, install lampshades and curtains, replace wc seat, replace taps. External Works Repaint fascia, replace fencing, replace external lights, jet wash path, clear front, side and rear garden, treat weeds, level steps, install hand rail. It was noted that the draft Order was for 12 months which is appropriate in order to carry out the work.

18. At the hearing it was said that modifications regarding the levelling of the path would make the Property particularly suitable for elderly persons for whom there was a significant demand for accommodation.

19. Cost of works estimated at £20,950.00 plus additional costs of management and maintenance costs of £11,288.54 makes a total of £31,238.40 which it was anticipated would be recouped over a period of 6.5 years with a rental income of £822.73 per month, in line with the local [NAME] allowance.

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20. In comparison a compulsory purchase was likely to lead to a loss of £25,528.75.

21. The Tribunal noted that the cost of certain items of the schedule of works was high relative to their replacement, in particular the £4,000 set aside for curtains, blinds and light shades. The [NAME] responded that the purpose of the expenditure was to put the Property in a fit state for letting. The Tribunal accepted that some cost would be under budget and others over but essentially the Schedule and costing was appropriate.

22. The Tribunal commented that from its knowledge and experience in its other jurisdictions the anticipated rent appeared modest. The Tribunal suggested that if the rent were higher the costs incurred for refurbishment would be recovered sooner and so well within the 7-year period of the final Order.

23. The [NAME] said that it was intended to let the Property at an affordable rent as part of the Applicant’s related policies.

24. The Tribunal, following the hearing, noted the requirements of the final Empty Dwelling Order Management Scheme as set out in Part 2 of Schedule 7 paragraph 13. This states at sub paragraph (3) The scheme is to contain a plan giving details of the way in which the authority proposes to manage the dwelling, which must in particular include- (c) the amount of rent which, in the opinion of the authority, the dwelling might reasonably be expected to fetch on the open market at the time the management scheme is made

25. The Tribunal appreciates the commendable desire of the Applicant to provide affordable accommodation. However, the purpose of the [NAME] is to bring back into occupation dwellings which are empty. In achieving this the Applicant is a [NAME] which is taking over a private individual’s property to meet the general need for accommodation and is able to recoup its costs in doing so through the rent. The proprietor of the Property should not be penalised by the Order being prolonged or the financial gain reduced by a rent being charged that is less than the market rent. The Tribunal is of the opinion that paragraph 13(3)(c) of Part 1 of Schedule 7 of the [NAME] 2004 supports a market rent being charged. The Tribunal appreciates that the present application is with regard to an interim Order nevertheless it suggests that this view be taken into account in respect of the final [NAME].

26. The [NAME] has been seeking to sell her bungalow but several sales are said to have ‘fallen through’ due to the condition of the Property. At the hearing it was also stated that the Police have received complaints about the condition and possible use of the Property. In addition, adjacent to the Property is an area of open land which is also overgrown. The condition of the Property exacerbates the risk of fly tipping both at the Property and on the adjacent open area of land. [NAME] confirmed that inquiries were

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being made with regard to the use of the adjacent open area of land. The condition of the Property affected the amenity in the area generally.

27. The Applicant has as at 1st May 2020 a [NAME] waiting list of 444 applicants with a need for two-bedroom accommodation, 98 of whom are registered in Leighton Buzzard. Empty properties with overgrown gardens have a negative impact on the prices of neighbouring properties which directly affects the financial position of their owners.

28. At the hearing it was said that bungalows, which were suitable for elderly persons such as the Property, were in particularly short supply.

Status as Empty Dwelling

29. The Applicant submitted that the Property has, for at least two years, been empty. According to the Applicant’s Council Tax records it has been empty since 18th December 2011 (section 134(2)(a)).

30. On 21st May 2019 and 25th June 2019 letters were sent by [NAME] to [NAME], as the contact for the Property for Applicant’s Council Tax Department, seeking information as to the status of the Property. On 8th August 2019 [NAME] telephoned [NAME] stating that the person believed to be the relevant proprietor had mental health issues.

31. On 24th January 2020 an Officer of the Applicant carried out a site inspection and found the garden to be overgrown and received no answer at the bungalow.

32. On 11th February 2020 a Notice of Entry under section 239 [NAME] 2004 was served on the Property requesting access to inspect the Property on 18th February 2020. Officer of the Applicant attended on 18th February 2020 but could not obtain access.

On 18th February 2020 a warrant was applied for ([NAME] were informed) and was granted on 4th March 2020 ([NAME] were informed). On 17th March 2020 the Warrant was executed and a full survey was carried out, a copy of which was provided as noted above.

33. On 2nd October 2020 a Notice of Intention to make an [NAME] was served on the Property. On 16th October 2020, following legal advice as set out below, further notices were served on [NAME] at her partner’s address of [ADDRESS], Watford and [NAME] [APPELLANT] at [NAME]. The three-month notice period ending on 17th January 2021.

Identifying Relevant Proprietor

34. [NAME] sought to determine who the relevant proprietor is in order to serve the Notice of Intention. The communications by telephone, email and letter commenced on 21st May 2020 with [NAME] as the contact address for Council Tax. A brief background was provided by

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[NAME]. On 24th September 2019 [NAME] obtained a copy of the Land Registry Entry for the Property identifying [NAME] as the Proprietor (Copy provided).

35. In February and March 2020, [NAME], liaising with the Council Tax Department, received some contradictory and unclear information from [NAME] as to who held the Property. In June and August 2020, [NAME] were able to obtain documentation which it passed to [COMPANY] (formerly [COMPANY]) on 13th August and instructed them for advice. On 8th October 202o [NAME] received advice with regard to the Relevant Proprietor.

36. A copy of the legal advice was provided which set out the history of the ownership of the property in chronological order as follows:

1. An official copy of Title Number BD194956 at HM Land Registry dated 21st February 2020 shows the Proprietor of the Property on 11th July 1996 to be [NAME]. No mortgage is shown on the Charges Register.

2. The will of [NAME] dated 19th April 1985 appointed [NAME] as Executor and her daughters, [NAME] and [NAME] were left the residue of her estate in equal shares. 3. [NAME] died on 1st March 2003 and [NAME] and [NAME] became the beneficiaries of her estate and entitled to the Property.

4. The Grant of Probate for [NAME] was issued on 30th March 2005 and named [NAME] as her executor not [NAME]. It is not known why [NAME] did not apply for Probate and it is not relevant to these proceedings. [NAME] gave address as the Property when she was appointed as executor and it is understood that she is the same [NAME]. It is not known why her surname has changed.

5. The will of [NAME] [NAME] dated 16th May 2014 appointed [NAME] [APPELLANT] as her sole executor and made modest legacies to 5 persons and the residue to her half-sister [NAME]. 6. [NAME] died on 31st May 2014 and [NAME] became the beneficiary of the residue of her estate which included the Property.

7. The Grant of Probate for [APPELLANT] was issued on 10th October 2014 and named [APPELLANT] as executor.

8. Both the Grants state that the will is annexed but it is not known whether the will annexed is the will provided although there is no evidence to show they are not. 9. [NAME] as the executor of [NAME] should have vested the Property to [NAME] and herself. This did not happen and therefore the administration of [NAME] was not complete. Under the chain of representation [NAME]’s executor, [APPELLANT] can complete the administration of [APPELLANT].

10. Until the Property is vested in the beneficiary, [APPELLANT], by the Executor, [APPELLANT], she has no legal title only an equitable

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or beneficial interest which would be insufficient to register her as the Proprietor at the Land Registry. It is the executor who has the legal title.

11. The [NAME] and legislation does not refer to registered proprietors but “relevant proprietors”. At the time of giving the advice it was not clear whether [NAME] or [APPELLANT] or both are the relevant proprietors under the legislation. 12. [NAME] were advised to serve the appropriate notices on the Property and to serve notices on [APPELLANT] and [NAME] [APPELLANT].

37. The above was confirmed at the hearing.

Tracing Relevant Proprietor

38. On the understanding that [APPELLANT] was a relevant proprietor [NAME] sought to trace her.

39. On 6th November 2019 in response to a Notice served under section 16 Local Government (Miscellaneous Provisions) Act 1976 for information as to ownership [NAME] received an address for [APPELLANT] of 21 [ADDRESS] [POSTCODE]. On 12th November 2019 a letter was sent by post and on 14th November 2019 hand delivered to the address and again on 15th and 21st January 2020 respectively.

40. In January 2020 neighbours of the Property were also asked whether they knew of Ms [NAME] address to no avail.

41. In March 2020 Dacorum Council within whose area Ms [NAME] address is situated was approached asking if they were able to provide an address for Ms [NAME]. In addition, [COMPANY] who are shown at HM Land registry to own 21 [ADDRESS] [POSTCODE] were asked if they could provide any information as to how to contact Ms [NAME]. Neither were able to reply presumably due to confidentiality obligations.

42. On 29th June 2020 [NAME] made inquiries of its Social Service Department as Ms [NAME] was known to have mental health issues but she was not known to Adult Social Care.

43. Also, on 29th June 2020 [NAME], a tracing agency, were engaged. On 25th September 2020, following information provided by the Agency the Applicant contacted a mental health facility in Haywards Heath.

44. On 15th October 2020 [NAME] were able to contact Ms [APPELLANT] on a mobile number who confirmed that her address is 21 [ADDRESS] [POSTCODE] but that she was living temporarily with her partner, Mr [NAME], at [ADDRESS], Watford due to an incident at her home address.

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45. Ms [NAME] said the Property had been owned by her mother and had then passed to her half-sister but said that she had another sister following her father’s re-marriage. [NAME] explained the situation with regard to the Property and the help she could get and said that the relevant information would be sent to [ADDRESS]. A Notice of Intention was sent to [ADDRESS] on 16th October 2020.

46. On 8th September 2021 Mr [NAME] brother, Mr [NAME], informed the Tribunal that [ADDRESS], Watford had been unoccupied for five months due to his brother being in hospital and intermediate care. He said his brother is now permanently in a care home. He added that he believed that Ms [NAME] was under the care of mental health services and that her address may now be 21 [ADDRESS] [POSTCODE].

Compliance with Notice etc Requirements

47. Copies of correspondence were provided as follows:

Letters & enclosures regarding proprietors’ intentions for empty property

48. Letter dated 21st May 2019, repeated 25th June 2019 and 12th November 2019, requesting Ms [NAME] intentions by questionnaire addressed to [NAME]. Similar letter dated 6th January 2020 and repeated 15th January 2020 to Ms [NAME] addressed to 21 [ADDRESS] [POSTCODE].

Letters and enclosures regarding Notice of Intention to make an [NAME]

49. Letter dated 15th October 2020 following a telephone conversation with Ms [NAME] in which she confirmed her address at that time was [ADDRESS], Watford and to Mr [APPELLANT] at [NAME] both with a Notice of Intention to make an interim [NAME] and accompanying notes a copy of which were provided.

Summary

50. [NAME] submitted that:

a) The Applicant has made reasonable efforts to find out who the relevant proprietor is and what the relevant proprietor intends to do to ensure that the dwelling is occupied and to notify the relevant proprietor of its intentions to make an application for an Order and a Notice of Intention and draft Order has been served on 16th October 2020 (Section 133(3) [NAME] 2004). b) The Property has been unoccupied for at least two years as required by Section 134(2)(a) [NAME] 2004. c) There is no reasonable prospect that the dwelling will be occupied in the near future as it has remained unoccupied since December 2011 (section 134(2)(b) [NAME] 2004).

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d) If the [NAME] is made there is a reasonable prospect that the dwelling will become occupied (section 134(2)(c) [NAME] 2004). e) The Applicant has complied with section 133(3) [NAME] 2004 on 16th October 2004 and the Respondents have not complied with the prescribed requirements (section 134(2)(d) [NAME] 2004). f) The Applicant has at 1st May 2020 a [NAME] waiting list of 444 applicants with a need for two-bedroom accommodation, 98 of whom are registered in Leighton Buzzard. Empty properties with overgrown gardens have a negative impact on the prices of neighbouring properties which directly affects the financial position of their owners (section 134(3)(a) [NAME] 2004); g) The Applicant is not aware of any particular or special circumstances of the proprietor that would mean the making an [NAME] would have an impact on them that was not envisaged by the legislation. There is no mortgage and the resultant income generated by its occupation following the reimbursement of the cost of refurbishment is of benefit to the Respondent (section 134(3)(b) [NAME] 2004). h) The Applicant is not aware of any particular or special circumstances of the proprietor or of any third party that would mean an order for compensation to be made i) It is the Applicant’s duty to take appropriate steps for the purpose of securing the occupation of the dwelling. The Applicant has made an assessment of the repairs and the costs and calculated the rental income that is likely to be produced and found that the project is cost effective. The Applicant has funds and a management service available (section 135(2) [NAME] 2004). j) The relevant proprietor does not come within the exceptions set out in article 3 of the [NAME] ([NAME]) Prescribed Exceptions and Requirements) (England) Order 2006 ([NAME] 2006) (article 4(1)(a) [NAME] 2006). k) The Applicant made enquiries to find the relevant proprietor and ascertain the proprietor’s intentions to secure the occupation of the dwelling and to identify the course of action to achieve this (article 4(1)(b)(ii) [NAME]). l) The Applicant has offered advice, assistance and encouragement (article 4(1)(b)(iii) [NAME] 2006) m) The Property is in Council Tax Band B (article 4(1)(b)(v) [NAME] 2006).

51. No representations were received from either of the Respondents.

Decision

52. The Tribunal considered all the evidence adduced and submissions made. In the Reasons above the Tribunal has made some observations e.g., regarding a market rent being charged, which although not part of the Decision for authorisation of an interim Order are relevant to a final Order should it be made.

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53. Firstly, the Tribunal determined the relevant proprietor.

54. The Tribunal finds that [APPELLANT] is the trustee of the Property under the implied statutory trusts under the Administration of Estates Act 1925 and Trustee Act 1925 as amended by the Trusts of Land Appointment of Trustees Act 1996, the express trusts in the wills of [NAME] and [NAME] and in any event by a constructive trust, for [NAME].

55. The reason for the finding is that [NAME] obtained a Grant of Probate to the estate of [NAME]. The estate of [NAME] which included the Property was devised in her will to [NAME] (also known as [NAME]) and [NAME], but no assent of the Property was made. By her will [NAME] left the residue of her estate to [NAME] which included her share in the Property. A Grant of Probate was made to [APPELLANT] personally, who by reason of the chain of representation, automatically is the executor of both testators and holds the undistributed residue, which includes the Property, for [NAME].

56. The need for the finding is to identify the relevant proprietor upon whom the Notice of Intention has to be served for the interim [NAME]. The effect of the finding is that the Tribunal determines that the relevant proprietor is [APPELLANT].

57. Mr [APPELLANT] should apply to be registered at HM Land Registry as the personal representative of the deceased, restrictions will be placed on the register commensurate with his role. He will then be able to transfer or assent the Property. Reference should be made to HM Land Registry Practice Guide 6: Devolution on the death of a registered proprietor (updated 27 August 2021).

58. The appointment in the Will and the Grant of Probate is to Mr [APPELLANT] personally and not to any firm. He should be aware that under section 5 of the Administration of Estates Act 1925 he is unable to delegate, transfer or assign his executorship, although he may employ professional persons to carry out work related to the executorship. There was some reference to costs in the statement of case. There may be an entitlement to remuneration under the terms of a will but it is not a pre-condition to carrying out the obligations of a personal representative.

59. It is not within the Tribunal’s jurisdiction to make any further finding or determination as to the relevant proprietor. However, the Applicant should be aware of possible future issues that may arise during the period of the interim or final Orders. In particular Mr [APPELLANT], under the implied statutory trusts and express trusts of the wills could sell, assent or continue to hold on trust, the Property.

60. A sale would be subject to the Order as a local land charge, and following the sale, Mr [APPELLANT] would need to settle all debts from the proceeds and hold the remainder on trust for Ms [NAME] and those who become entitled through her e.g., by will or intestacy.

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61. If an assent is granted to Ms [NAME] directly or with the assistance of the Court of Protection, taking into account her health, it would be helpful for the Applicant to know who might become entitled through Ms [APPELLANT] e.g., by will or intestacy, at the end of the Order.

62. If the Property continues to be held on trust there may be the need to appoint another trustee or another beneficiary who may become entitled.

63. Secondly, the Tribunal determined the relevant person.

64. Under section 133(8) [NAME] 2004 Part 1 of Schedule 6 applies in relation to the making of an interim [NAME]. Under paragraph 1 of Schedule 6 1. Before making an Order the authority must- (a) Serve a copy of the proposed order together with a notice under this paragraph on each relevant person; and (b) consider any representations made in accordance with the notice and not withdrawn 8. (4) [as per section 133(8)(d)] “relevant person” is any person, who to the knowledge of the local [NAME] authority, is a person having an estate or interest in the dwelling

65. The Tribunal found that the relevant person includes, in this case, Mr [APPELLANT] but it also includes Ms [APPELLANT] as she has an interest in the Property.

66. Having determined the relevant proprietors and relevant persons relating to the Property, the Tribunal considered whether the Applicant had complied with the statutory requirements to make an Order.

67. The Tribunal considered the list of requirements as set out in the summary of the evidence above.

68. The Tribunal is satisfied that the Property has been wholly unoccupied for at least 2 years. There is no reasonable prospect of the Property becoming occupied in the near future. The Applicant has also set out a Schedule of work to put it into a condition for occupation and made a calculation as to how and when the cost will be recouped. If an interim order is made, there is a reasonable prospect that the dwelling will become occupied.

69. The Tribunal is satisfied that the Applicant has taken into account the interests of the wider community when deciding whether to apply for authorisation by deciding to refurbish the property and reclaim the cost through the rental, reducing the risk of blight to the area.

70. The Tribunal is satisfied that the Applicant has complied with all the requirements as regards the initial notices requesting information as to intentions for the property and the Notice of Intention to make an [NAME].

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71. The Tribunal is satisfied that none of the exceptions set out in the [NAME] ([NAME]) (Prescribed Exceptions and Requirements) (England) Order 2006 applies.

72. The Tribunal was disappointed that Mr [APPELLANT] did not attend the hearing. He provided no statement or evidence as to why, since the Grant of Probate in 2014, he has not been more proactive in settling the estates of [NAME] and [NAME] in favour of the beneficiary Ms [NAME]. It is hoped that he will discuss the situation and the options that are still open with regard to the Property with [NAME] and Ms [APPELLANT] following this decision.

73. Ms [NAME] did not provide any representations nor did she attend the hearing. Notwithstanding that Mr [APPELLANT] is the relevant proprietor and no assent has yet been made to Ms [NAME], she has paid the outstanding Council Tax of £5,000. If the Property were left empty under section 11B of the Local Government Finance Act 1992 amended by The Local Government Finance Act 2012 the Council Tax liability would increase by 300% which on its assent to her could cause considerable hardship.

Based on the evidence adduced and the submissions made, the Tribunal authorises the Applicant to make an interim [NAME] in the form as set out at page A64 to 69 of the Bundle with the following amendments: “DRAFT” is to be deleted The Order is to be addressed to: 1) [APPELLANT] as the relevant proprietor at such address as he has given for communications 2) [NAME] as the relevant person at 1 [ADDRESS] [POSTCODE] The Schedule narrative is to be completed “and as such shall carry out or arrange to have carried out the following works” followed by the table of works.

74. The Applicant does not ask the Tribunal to make an order for compensation.

Judge JR Morris

ANNEX - RIGHTS OF APPEAL

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1. If a party wishes to appeal this decision to the Upper Tribunal ([NAME]) 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.

2. 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.

3. 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.

4. 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.

Case Reference

: CAM/00KC/HYI/2021/0003

Property

: 81 Corbet Ride, Leighton Buzzard, Bedfordshire [POSTCODE]

Applicant: [redacted]

Respondent

: [redacted] Representative

: [COMPANY] Party : [NAME] of Application : Review or Permission to Appeal Decision

Tribunal

: Judge JR [NAME]

Date of Decision : 27th September 2021 (issued 3rd October) Date of Application : 26th October 2021 Date of Decision : 5th November 2021

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Decision of the Tribunal

1. The Tribunal has decided not to review its Decision and refuses permission to appeal to the Upper Tribunal because it is of the opinion that there is no realistic prospect of a successful appeal against its Decision in respect of the Grounds of the Application.

2. In accordance with section 11 of the Tribunals, Courts and Enforcement Act 2007 and Rule 21 of the Tribunal Procedure (Upper Tribunal) ([NAME]) Rules 2010, the applicant or respondent may make further application for permission to appeal to the Upper Tribunal ([NAME]). Such application must be made in writing and received by the Upper Tribunal ([NAME]) no later than 14 days after the date on which the First-tier FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Tribunal sent notice of this refusal to the party applying for permission to appeal. Where possible, you should send your application for permission to appeal by email to [EMAIL], as this will enable the Upper Tribunal ([NAME]) to deal with it more efficiently.

3. Alternatively, the Upper Tribunal ([NAME]) may be contacted at: 5th [ADDRESS] [POSTCODE] (tel: [PHONE]).

Reason for the Decision

4. The reason for the decision is that the Tribunal had considered and taken into account all of the points now raised by the Applicant, when reaching its original decision and the additional submissions made by the Applicant do not affect the Tribunal’s original decision.

5. The original Tribunal’s decision was based on the evidence before it and the Applicant has adduced no new evidence nor have any legal arguments been raised in support of the Application for Permission to Appeal the original decision

6. For the benefit of the parties and of the Upper Tribunal ([NAME]) (assuming that further application for permission to appeal is made), the Tribunal has set out its comments on the specific points raised by the applicant in the application for Permission to Appeal, in the appendix attached.

Judge J R Morris

4th November 2021

APPENDIX TO THE DECISION REFUSING PERMISSION TO APPEAL

For the benefit of the parties and of the Upper Tribunal ([NAME]), the Tribunal records below its comments on the grounds of appeal, adopting the paragraph numbering of the original application for permission. References in square brackets are to those paragraphs in the main body of the original Tribunal decision.

Original Application and Decision

1. On 16th April 2021 the Respondent to this Application applied for authorisation for an interim [NAME] in respect of the Property (the “Original Application”).

2. The Tribunal authorised the Applicant to the Original Application to make an interim [NAME] and stated that it was to be addressed to: 1) [APPELLANT] as the relevant proprietor at such address as he has given for communications; and 2) [NAME] as the relevant person at 1 [ADDRESS] [POSTCODE]

Application for Review of Permission to Appeal

3. The Tribunal received an email on 26th October 2021 in which [NAME] [APPELLANT], a Respondent to the Original Application stated that he was not objecting to or seeking to appeal the decision of the Tribunal insofar as it relates to its decision to authorise the Applicant to make an interim [NAME]. However, he stated that he believed that his being named as a respondent is based on errors of law and fact in relation to the administration of the estate of [NAME] and that as result, he believed he was not empowered or authorised to make the application to the Land Registry which he understood the Tribunal had instructed him to do by [57] of the Decision.

4. The Tribunal treated the email as an application to review or for permission to appeal the Decision, on the ground that the Applicant should not be a Respondent to the proceedings.

Grounds for Review or Permission to Appeal

5. The Applicant appeared to submit that he was not the correct Respondent as he is not the “relevant proprietor” as identified in the Decision.

6. The Reasons given are that:

a) The Property is still in the name of [NAME] who died on 1st March 2003. She left the Property to [RESPONDENT] and

[RESPONDENT]. The Respondent’s legal advice identified [RESPONDENT] as [NAME] executor. [NAME] (subsequently [APPELLANT]) died 31st May 2014 and the Applicant was appointed her executor. [NAME] submitted that by a chain of representation the Applicant is the executor of [APPELLANT] estate [36(4), 36(9) & 36(11)].

b) The Applicant states that the executor, [APPELLANT], appointed in [NAME] will must have either died or renounced Probate it is not known which of these applied, and therefore [NAME] took out a Grant of Letters of Administration with will annexed as one of the residuary legatees and devisees. [NAME] was not [NAME] executor but her administrator and therefore there is no chain of representation which only goes from executor to executor.

c) The Applicant submits that the share of the Property to which [APPELLANT] also referred to as [APPELLANT] is entitled to is vested in the Applicant as her executor and which he holds as a bare trustee for [NAME].

d) Therefore, he is not entitled to the freehold estate in the dwelling and so is not the “relevant proprietor”.

e) The Applicant also states that as result, he believed he was not empowered or authorised to make the application to the Land Registry which he understood the Tribunal had instructed him to do by [57] of the Decision.

Decision

7. The Applicant, as a Respondent of the Original Application did not submit representations or attend the hearing. The above submissions were made in respect of the current Application.

8. On reading the Applicant’s submissions and referring to the evidence previously adduced, the Tribunal finds that:

a) The Applicant is not [APPELLANT] executor by reason of a chain of representation. This is because, although he is the executor of [NAME], she was the administrator and not the executor of [NAME] estate. The chain of representation only passes from executor to executor and not from an administrator to an executor. This is contrary to the Tribunal’s finding at [55].

b) The Applicant is a trustee of the share of the Property to which [NAME], also referred to as [APPELLANT], is entitled, which is vested in the Applicant as her executor and which he holds as a bare trustee for [APPELLANT]. The Applicant is therefore at least a “third party” under the Act if not a “relevant proprietor”. This is in accordance with the Tribunal’s finding at [54].

9. As such, it is clear that both the Applicant and [APPELLANT] have an interest in the Property and are both “[NAME]” under section 134(4)(d) of the [NAME] 2004 and “relevant persons” under Part 1 of Schedule 6 and upon whom copies of notices relating to the making of the [NAME] must be served. This also is in accordance with the Tribunal’s findings at [63] to [66] and [70].

10. Under section 132(4)(c)(ii) of the [NAME] 2004, the “relevant proprietor” is “the person who has the freehold estate in the dwelling” not the person who is registered with the freehold estate. Therefore, in the absence of contrary argument the Tribunal considers it was correct to find the Applicant is the “relevant proprietor”. Even if it is wrong in this, the Applicant has an interest and so is a “third party” and “relevant person”.

11. Therefore, the Applicant and [APPELLANT] having both been served with the requisite notices as “relevant persons”, the Tribunal finds that it was correct to make both Respondents to the original Application so that they could take a full part in the proceedings, if they chose to do so, in order to protect their respective interests.

12. In the course of considering whether or not to authorise the making of an interim [NAME], in accordance with section 134(3) of the [NAME] 2004, it must take into account the effect the order may have on the rights of the “relevant proprietor” or “[NAME]. In so doing it referred to actions, that, based on the evidence adduced and submissions made, it considered the “relevant proprietor” and “[NAME]” could take to protect their interests [56] to [62]. This included registration of any interest the Applicant may have at HM Land Registry. However, it is not within its jurisdiction to instruct or otherwise require him to do so and if it appeared to make such requirement it was not intended.