Right to Manage Granted for Four-Flat Property

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BA/LRM/2021/0041 HMCTS code (paper, video, audio)

P: PAPERREMOTE Property : Flats A, B, C and D, 36 [NAME], Mitcham, [POSTCODE] Applicant : [redacted] : [COUNSEL], Respondent : [redacted] : [COUNSEL] [COMPANY] of [NAME] : No Fault – Right to Manage Tribunal member(s) : Judge [NAME](Hons) FRICS Venue : 10 [ADDRESS] [POSTCODE] Date of decision : 19 May 2022

DECISION

Covid-19 pandemic: description of hearing This has been a remote hearing on the papers which has not been objected to by the parties. The form of remote hearing was [insert the code and description, e.g., P:PAPERREMOTE. A face-to-face hearing was not held because it was not practicable and all issues could be determined on paper. The documents that the Tribunal were referred to are in a bundle of 289 pages, the contents of which have been considered.

2 The tribunal’s summary decision (1) The tribunal determines that the applicant [NAME] [APPELLANT] has acquired the right to manage the property known as 36

[NAME], Mitcham [POSTCODE].

The [NAME] 1. This is an [NAME] made pursuant to s.84(3) of the Commonhold and

Leasehold Reform Act 2002 (‘the 2002 Act’). The applicant seeks to

manage the subject premises known as 36 [NAME], Mitcham CR4

3LE (‘the premises’). The said premises comprise 4 flats (A,B,C, and

D) in two adjoining converted houses. By a Notice dated 15 September

2021 the applicant sought the right to manage the said premises. In a

Counter-Notice dated 10 September 2021 the respondent denied the

applicant’s right to acquire the right to manage. The issue – the respondent’s case 2. The respondent in its Statement of Case dated 15 March 2022 identified

a single issue that remained to be decided by the tribunal, namely does

the subject premises comprise a single building for the purposes of the

2002 Act. The respondent contends that the premises comprise of

multiple (two) buildings each containing two flats within each

building being vertically divided from the other and each building having

its own front entrance. Therefore, the applicant is not entitled to acquire

the right to manage more than one building; [COMPANY] v [COMPANY] [2015] EWCA Civ 282. If the tribunal

determines that the premises comprise of more than one building, the

applicant’s Articles of Association and Claim Notice would be inaccurate

and therefore, invalid. 3. In support of these submissions, the respondent relied upon the three

different Land Registry numbers relating to a small development of four

flats at 36 [NAME] in Office Copy entries. The respondent also

provided a photograph of the subject premises showing the two separate

front entrances and a site plan of 36 [NAME]. The respondent

contended there is a vertical division between the two buildings dividing

Flats A and B from Flats C and D located in the adjoining but separate

building. 4. In a Statement in Reply dated 22 April 2022 the respondent asserted that

the question to be answered was whether the respective parts of the

premises provide structural support for one another. The respondent

stated that there is vertical separation, re-development, and separation

of services ‘certainly appears to be possible.’ The respondent contended

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that these matters could be answered by the provision of Expert

evidence. The issue – the applicant’s case 5. The applicant relied on its Statement and Further Particulars as well as

a Statement of Reply dated 7 April 2022. In the latter document, the

applicant accepted that the [NAME] stands or falls on whether the

subject premises is a self-contained building or a part of a building

within the meaning of s.72(2)(3) of the 2002 Act. 6. The applicant accepted that the subject premises comprises two adjacent

terraced houses converted into four flats as evidenced by the [NAME]

for planning permission and asserted that the 2002 Act cannot have

intended a self-contained building/part of a building to be so restricted

that a [NAME] must be exercised separately in respect of each

house in a terrace. The applicant relied upon the case of 41-60 [COMPANY] v [COMPANY] [2011] EWCA Civ 185, in

support of its argument that the argument that the statutory right must only be

exercised in respect of the smallest qualifying part of a building has been

rejected. The tribunal’s decision and reasons 7. The tribunal determines that the subject premises known as 36 [NAME], Mitcham, [POSTCODE] comprise a single building for the purposes of

the 2002 Act. 8. The tribunal is satisfied that the applicant has complied with the

statutory requirements and therefore is entitled to acquire the right to

manage the subject premises. 9. Section 72 of the 2002 Act states:

(1)This Chapter applies to premises if—

(a)they consist of a self-contained building or part of a

building, with or without appurtenant property,

(b)they contain two or more flats held by qualifying tenants,

and

(c)the total number of flats held by such tenants is not less than

two-thirds of the total number of flats contained in the

premises.

(2)A building is a self-contained building if it is structurally

detached.

4

(3)A part of a building is a self-contained part of the building if

(a)it constitutes a vertical division of the building,

(b)the structure of the building is such that it could be

redeveloped independently of the rest of the building, and

(c)subsection (4) applies in relation to it.

(4)This subsection applies in relation to a part of a building if

the relevant services provided for [NAME] of it—

(a)are provided independently of the relevant services provided

for [NAME] of the rest of the building, or

(b)could be so provided without involving the carrying out of

works likely to result in a significant interruption in the

provision of any relevant services for [NAME] of the rest of the

building.

(5)Relevant services are services provided by means of pipes,

cables or other fixed installations.

(6)Schedule 6 (premises excepted from this Chapter) has effect.

10. The tribunal accepts that initially the subject premises comprised two

terraced houses, presumably originally with two different addresses

(although this was not addressed by the parties). Further, no evidence

was provided by the parties to show the extent of structural

detachment of the subject premises from the adjacent properties.

However, since the [NAME] for planning permission under

14/P2928 seeking to convert the two properties into four flats, the

subject premises have been known by the single address of 36 [NAME] and therefore a single building. 11. The tribunal finds that the respondent has consistently treated the

subject premises as one building in the obtaining of insurance. The

Policy Schedule covering the period 1 August 2020 to 31 July 2021

described the insured premises as ‘4 flats and the address as 36

[NAME], Mitcham, London [POSTCODE]. Further, the respondent has

treated the subject premises as a single building for the purpose of

obtaining of services and when [NAME] demands for payment of service

charges at the rate of 25% per flat, treated the premises as a single

building.

5 12. The tribunal finds that the respondent has consistently treated the

subject premises as a single building with a single address and differs

significantly in character from blocks of flats on an estate and

characterised as separate buildings for the purposes of the 2002 Act. 13. In conclusion, the tribunal finds the applicant has satisfied the tribunal

that it is entitled to acquire the right to manage the subject premises.

Name: Judge Tagliavini

Date: 19 May 2022

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 (Lands Chamber), then a written [NAME] for permission must be made to the First-tier Tribunal at the [NAME] which has been dealing with the case.

The [NAME] for permission to appeal must arrive at the [NAME] 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 (Lands Chamber).