Right to Manage Granted Over Property Dispute

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AZ/LRM/2024/0602 Property : [ADDRESS] [POSTCODE] Applicant : [redacted] : [NAME] [COUNSEL], counsel Respondent : [redacted] : [NAME] [COUNSEL], counsel Type of application : An application in relation to the denial of the Right to Manage under s.84(3) of the Commonhold and Leasehold Reform Act 2002 Tribunal members : Judge [NAME] Venue : 10 [ADDRESS] [POSTCODE] Date of hearing Date of decision : 7 August 2025 21 August 2025

DECISION

2 The tribunal’s decision (1) The tribunal determines the applicant is entitled to acquire the right

to manage the property at [ADDRESS] [POSTCODE] three months after the tribunal’s decision

becomes final.

The application 1. The applicant seeks a determination that on the relevant date (4 August

2024) it was entitled to acquire the right to manage [ADDRESS] [POSTCODE] (‘the Property’) pursuant

to the Commonhold and Leasehold Reform Act 2002 (‘the 2002

Act’). The Property

1. The subject premises are a large, modern, purpose-built building

constructed around 2007.

The Background

3. The Notice of Claim dated 4 August 2024was served on (i) the

freeholder [RESPONDENT]; (ii) on the respondent the third-

party manager to the long lease flats and (iii) [RESPONDENT].

4. Only the respondent served counter notice dated 3 Sept 2024

The counter notice alleged that applicant is not entitled to acquire the

right to manage (‘the RTM’) for two reasons:

(i) the premises are not a self-contained building or part of a

building (as defined by 2002 Act, s. 72(1)(a)); and

(ii) that a notice of invitation had not been served on the

[COMPANY] in respect of Flat 9.

5. Subsequently, the respondent withdrew its objection to the

application on the second issue at 4(ii) above. Therefore, the only issue

left for the tribunal to determine was whether the Property was a

self-contained building or part of a building as defined by s.72(1)(a) of

the 2002 Act.

The hearing

6. The applicant was represented by [NAME] [COUNSEL] of counsel and the

respondent by [NAME] [COUNSEL] of counsel. The tribunal was provided

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with a digital bundle of 268 pages. At the beginning of the hearing, the

applicant made an application at the hearing to rely upon two further

witness statements from [NAME] [NAME] and [NAME] [NAME] who simply sought to adopt the witness statement of [NAME] [APPELLANT]

[NAME], a director of the applicant, who was unable to attend the oral

hearing. Although the respondent objected to the late introduction of

this evidence, the tribunal allowed the application, as it was of the view

the two extra witness statements added very little and could easily be

dealt with by the respondent in any cross-examination.

The applicant’s case

7. The applicant submitted that the Property comprises premises to which

the RTM applies as defined by 2002 Act, s. 72, which provides:

Premises to which Chapter applies

(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,

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

detached.

(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 occupiers of it—

(a) are provided independently of the relevant services provided

for occupiers 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 occupiers 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.

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7. [NAME] [NAME] submitted that in any event the Property is clearly one or

the other, and it really does not matter which alternative (a self-

contained building or a self-contained part of a building) the subject

premises fall into: though the direct evidence is sparse, it is clear enough

that the services are provided independently of next door, or, in the most

unlikely event that they are not, they could be without disruptive works.

8. Consequently the argument between the parties centred on whether or

not the flashings and closing detail bridging between the subject

premises and the next door premises at 258-260 Lewisham High Street,

is sufficient for the two structures not to be structurally detached.

9. [NAME] [NAME] submitted that what makes it self-evident that the

qualifying criteria are made out is that the Property was built after 258-

260 Lewisham High Street as evidenced by historic [ADDRESS] photos showing the empty space which was later filled by the

building of the Property.

10. The applicant also relied on the oral evidence of [NAME] [APPELLANT]

(Hons) MRICS of [COMPANY] who spoke to his report

dated 14 March 2025 who concluded in his report:

‘…in my opinion, AH (Axis House) and 258 are two separate and

independent structures.’

11. The applicant also relied upon the oral evidence of [NAME] [APPELLANT] and [NAME] [NAME] who confirmed they adopted

as their evidence, the written statement of [NAME] [RESPONDENT].

The respondent’s case

12. [NAME] [RESPONDENT] submitted that the onus of establishing that an [COMPANY]

is entitled to acquire the right to manage is on the company; [COMPANY] v. [ADDRESS] (London) [COMPANY] [2020] UKUT 0228 (LC)

and [NAME] v. 15 [COMPANY]

(2021) LON/00AY/LRM/2021/0004).

13. [NAME] [NAME] also relied on the written expert report of [NAME] [NAME] of [NAME] dated 31 January

2025 in which he concluded:

‘The blocks are immediately adjoining each other and also

appear to have some structural linkage.’

14. [NAME] [NAME] also relied on the oral evidence of Ms [COUNSEL], the

respondent’s in-house solicitor who spoke to her witness statement

dated 15 July 2005 which largely detailed the failed attempts to arrange

a joint meeting between the parties’ experts. In submission [NAME] [APPELLANT]

challenged the weight and credibility of the applicant’s witnesses as the

witness evidence of [NAME] [APPELLANT] appeared on its face to be

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little but bald assertions and could not be tested by cross examination

and therefore should be given little if any weight.

15. [NAME] [NAME] also submitted that the expert evidence of [NAME] [NAME] should

be excluded in view of the absence of the usual declaration but if

admitted it should be given little if any weight in the light of the failure

to comply with the formal requirements as to its content. However, if

admitted it is be noted when weighing his evidence that:

a. It makes no clear reference to the admitted “minimal

attachment” between the properties; and

b. It does not provide any basis for the

conclusion that there is no interconnection in terms of

facilities.

16. [NAME] [NAME] submitted that when taken as a whole the evidence tendered

and relied upon by the applicant was insufficient to discharge the

burden of proving that the Property qualifies and the applicant is

entitled to acquire the right to manage.

The tribunal’s decisions and reasons

17. The tribunal finds the Property is a structurally detached building and

the applicant has the right to acquire the right to manage three months

after this decision becomes final.

18. The tribunal preferred the written and oral evidence of [NAME] [NAME] to the

report of [NAME] [NAME]. The tribunal accepted [NAME] [APPELLANT] explanation

that the applicant had not instructed him as an ‘expert’ witness. Had it

done so he would have included the usual declarations in his report. The

tribunal found [NAME] [NAME] report to be very basic with a conclusion

simply based on the fact there appeared to be (structural) ties between

the Property and the building next door without any real

explanation for this conclusion. [NAME] [NAME] however, appeared in his

report to give little thought as to why these ties might be structural in

nature in view of the unequivocal evidence the Property was built

after the building it now adjoined.

19. The tribunal also accepted that the elements covering the ‘gap’ between

the Property and the adjoining property were a ‘flashing detail’ and

largely decorative in nature only as demonstrated by the gaps that were

evident in the photographs provided to the tribunal.

20. The tribunal found the applicant’s addition of two ‘reference’ witnesses

who adopted the statement of [NAME] [APPELLANT] was bizarre and added

nothing to the applicant’s case. Notwithstanding this approach to the

evidence, the tribunal was satisfied the applicant had with the evidence

of [NAME] [APPELLANT], met the burden of proof and was entitled to acquire the

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right to manage the Property. This right to manage will take effect no

later than three months after the date this decision becomes final.

Name: Judge Tagliavini Dated: 21 August 2025

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 application for permission must be made to the First- tier Tribunal at the Regional Office which has been dealing with the case. The application should be made on Form RP PTA available at https://www.gov.uk/government/publications/form-rp-pta-application-for- permission-to-appeal-a-decision-to-the-upper-tribunal-lands-chamber 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. 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. 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. If the Tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).