Right to Manage is not an oft litigated topic. If the tenants qualify and get their notices right then there is not much most landlord’s can do to oppose a claim as the application can be made on a no fault basis. However, this has not stopped an RTM case coming up for consideration by the Upper Chamber (Land Tribunal) earlier this month in the case of Gateway Property Holdings Ltd –v- 6-10 Montrose Gardens RTM Company Ltd.
The case was an appeal of a Leasehold Valuation Tribunal decision that went against a landlord who was challenging an RTM application by the tenants. The landlord claimed that the LVT had made an error in waiving some procedural defects in the tenants RTM application, in particular:
- They were out of time for applying to the LVT
The tenants had 2 months from the date of the landlord’s counter notice to apply to the LVT for a determination as to whether they could exercise the right to manage. This was held to be 2 October 2010. An application form which omitted key documents was faxed to the LVT on 1 October 2010 but a substantially complete hard copy did not arrive until 4 October 2010.
The Tribunal decided that while fax was an appropriate method of communication, the faxed application was not sufficient to enable the application to be determined and the hard copy (which could have been sufficient) was out of time.
The landlord was therefore going to win!
2. No participation notice was served.
This was not the first RTM application that the tenants had made. I won’t set out at length what the Right to Manage legislation requires tenants to do but part of the procedure is to give notice to other qualifying tenants who have not yet agreed to be part of the claim.
The landlord said that this notice had not been given, which was common ground. The Tribunal decided on a cost and duplication basis that it would not have been necessary to serve a new participation notice because both the participants and the nature of the RTM claim had not changed from the previous application which had been deemed withdrawn. There was in effect, no need to serve a new one.
It remains to be seen if this approach will be followed in future decisions, as if you make analogies with other matters within the LVT jurisdiction where the concept of deemed withdrawal exists, this is a bit anomalous, if commercially sensible. Further, the fact that sometimes you can get away with procedural defects but other times you cannot creates unhelpful procedural uncertainty. Of course the answer is to be procedurally beyond reproach and I can recommend a suitable practitioner for that!