Tenant Successfully Acquires Right to Manage Premises

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AH/LOA/2019/0002 Property : 76 [ADDRESS] [POSTCODE] Applicant : [redacted] : [NAME] (ref: MJH.136572.1) ([EMAIL]) Respondent : [redacted] : [COMPANY] (ref: DB/PORTLAND076) ([EMAIL]) Type of [NAME] : [NAME] in relation to the denial of the Right to Manage Tribunal member(s) : Judge Timothy Powell Venue : 10 [ADDRESS] [POSTCODE] Date of decision : 23 October 2019

DECISION

Summary of the tribunal’s decision 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 Commonhold and Leasehold Reform Act 2002, and the applicant will acquire such right within three months after this determination becomes final. The [NAME]

1. This was an [NAME] under section 84(3) of the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”) for a determination that,

2 on the relevant date, the applicant company was entitled to acquire the Right to Manage (“RTM”) premises known as 76 [ADDRESS] [POSTCODE] (“the premises”).

2. By a claim notice dated 7 May 2019, the applicant gave notice to the respondent, [APPELLANT], that it intended to acquire the right to manage the premises on 10 September 2019.

3. By counter-notice dated 31 May 2019, the [NAME] disputed the claim, alleging that the applicant had failed to establish compliance with section 79(2) of the Act, for having failed to serve a Notice to Participate on flat 2.

4. The [NAME] was dated 8 July 2019 and received by the tribunal on 11 July 2019. Directions were issued on 9 August 2019 for a determination without an oral hearing, as part of the tribunal’s Digital Resolution Pilot, whereby all correspondence and documents were to be transmitted digitally. The law 5. The relevant provisions of the Act are referred to in the decision below. The determination 6. The tribunal received and considered the following documents: • The [NAME] form and supporting documents; and • The applicant’s hearing bundle received on 28 August 2019.

7. There was no response to the [NAME] or to directions from the respondent, or from its representatives, [COMPANY], who were copied into emails; and, therefore, there was no statement of case or evidence to support the respondent’s grounds for denying of the right to manage in the counter-notice. The tribunal’s decision on the [NAME]

8. The tribunal determines the applicant was on the relevant date entitled to acquire the right to manage the premises pursuant to section 84(5)(a) of the 2002 Act.

9. 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. 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.”

3 Reasons 10. The background facts appear from the [NAME] form and supporting documents, and from the witness statement of [NAME] dated 15 August 2015 in the hearing bundle, none of which were disputed: (1) The premises comprise a residential property containing three flats; (2) The respondent is the [NAME] of the premises; (3) Each of the three flats is individually held on a long lease; (4) The applicant [COMPANY] (company number: 11534438) was incorporated on 23 August 2018; (5) The owners of flats 1 and 3 are qualifying tenants who are members of the [COMPANY] and participators in the RTM; (6) By letter dated 13 September 2018, the [NAME] gave a Notice of Invitation to Participate in the RTM (under section 78 of the 2002 Act) to Ms [APPELLANT[NAME], the qualifying tenant of flat 2. The letter and notice were printed and signed by [APPELLANT], a legal executive working for the [NAME], and placed in the outgoing post tray for first class post; (7) Ms [APPELLANT] telephoned the [NAME] on 28 September 2018 and spoke to Ms [NAME] paralegal, [NAME], confirming receipt of the notice and indicating that she was interested in participating in the RTM (though nothing further was heard from her); (8) A first notice of claim was sent to the respondent on 17 October 2018, and was met by a request from the respondent for copies of the notices of invitation. These were all provided to the respondent by letter dated 2 November 2018; but, due to an error in the notice of claim, it was later deemed withdrawn on 21 January 2019; (9) A second notice of claim was served on 3 April 2019, but due to another error it was invalid. On 7 May 2019, a further notice of claim was served, at which point in time Ms [NAME] was still the registered proprietor of flat 2; (10) On 31 May 2019, the respondent gave a counter-notice under section 84 of the 2002 Act, alleging that the applicant was not entitled to acquire the right to manage, for having failed to serve a notice to participate on flat 2. The [NAME] sent a further copy of the notice to participate sent to flat 2, by letter dated 6 June 2019, and invited the respondent to withdraw the counter-notice; though no reply was received;

4 (11) The current [NAME] was received by the tribunal on 11 July 2019, seeking a determination that, on the relevant date, the [COMPANY] was entitled to acquire the right to manage the premises.

11. Having considered the documentation provided by the applicant, I am satisfied that a notice of participation was served on Ms [APPELLANT], the qualifying tenant of flat 2; and that she received such notice. There is no evidence from the respondent to gainsay this conclusion. I am therefore satisfied that the ground in the counter-notice is not made out and that, therefore, the applicant was on the relevant date entitled to acquire the right to manage the premises. The respondent’s costs of proceedings 12. Section 88(3) of the 2002 Act states: “(3) A [COMPANY] is liable for any costs which such a person incurs as party to any proceedings under this Chapter before the appropriate 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.” 13. In the light of my decision, there is no question of awarding any costs of the proceedings to the respondent under the 2002 Act, because the [NAME] for the right to acquire has not been dismissed.

Name: [NAME]: 23 October 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 (Lands Chamber), 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.

5 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).