“Where a landlord proposes to effect a transaction involving the disposal of an estate or interest in more than one building (whether or not involving the same estate or interest), he shall, for the purpose of complying with this section, sever the transaction so as to deal with each building separately.”
“(a) they consist of the whole or part of a building; and; (b) they contain two or more flats held by qualifying tenants; and (c) the number of flats held by such tenants exceeds 50 per cent. of the total number of flats contained in the premises.”
“In this Part “disposal” means a disposal whether by the creation or the transfer of an estate or interest and— (a) includes the surrender of a tenancy and the grant of an option or right of pre-emption, but (b) excludes a disposal under the terms of a will or under the law relating to intestacy; and references in this Part to the transferee in connection with a disposal shall be construed accordingly.”
“Where a landlord proposes to effect a transaction involving the disposal of an estate or interest in more than one building (whether or not involving the same estate or interest), he shall, for the purpose of complying with this section, sever the transaction so as to deal with each building separately.”
“An “acceptance notice” means a notice served on the landlord by the requisite majority of qualifying tenants of the constituent flats informing him that the persons by whom it is served accept the offer contained in his notice.”
“Where the original disposal related to other property in addition to premises to which this Part applied at the time of the disposal— (a) a notice under this section has effect only in relation to the premises to which this Part applied at the time of the original disposal, and (b) the terms of the contract shall have effect with any necessary modifications. In such a case the notice under this section may specify the subject-matter of the disposal, and the terms on which the disposal is to be made (whether doing so expressly or by reference to the original disposal), or may provide for that estate or interest, or any such terms, to be determined by the appropriate tribunal.”
“The requisite majority of qualifying tenants of the constituent flats may serve a notice (“a purchase notice”) on the purchaser requiring him to dispose of the estate or interest that was the subject-matter of the original disposal, on the terms on which it was made (including those relating to the consideration payable), to a person or persons nominated for the purposes of this section by any such majority of qualifying tenants of those flats.”
“A purchase notice shall where the original disposal related to other property in addition to premises to which this Part applied at the time of the disposal— (a) require the purchaser only to make a disposal relating to those premises, and (b) require him to do so on the terms referred to in subsection (2) with any necessary modifications. In such a case the purchase notice may specify the subject-matter of the disposal, and the terms on which the disposal is to be made (whether doing so expressly or by reference to the original disposal), or may provide for those matters to be determined by the appropriate tribunal.”
“The landlord proposes to enter into a contract to create or transfer an estate or interest in land, namely to sell the freehold interest in the Property edged red on the plan attached to this notice.”
“. . . They [the tenants] submit that the word “building” is not necessarily confined to the bricks and mortar of which the building is constructed. In Governors of St. Thomas's Hospital v. Charing Cross Railway Co. (1861) 1 J. & H.·400 it was held thatsection 92 of the Lands Clauses Consolidation Act 1845 (8 & 9 Viet. c. 18) (which provided that the owner of land being compulsorily acquired could not be required to convey “a part only of any house, or other building or manufactory”) required the purchase not only of the whole house but also of the gardens and appurtenances of the house. In the present case, it would be to attribute to Parliament an entirely capricious intention if we were to hold that the tenants’ right to purchase did not extend to the gardens and other appurtenances of the flats which are expressly or impliedly included in the demises of the flats to the tenants. In my judgment we are not forced to adopt such an unreasonable construction since it is a perfectly legitimate meaning of the word “building” that it includes the appurtenances of the building.”
“(5) Where a landlord proposes to effect a transaction that would involve both— (a) a disposal of an estate or interest in the whole or part of a building constituting a relevant disposal affecting any premises to which this Part applies, and (b) a disposal of an estate or interest in the whole or part of another building (whether or not constituting a relevant disposal affecting any premises to which this Part applies) or more than one such disposal, the landlord shall, for the purpose of complying with this section in relation to any relevant disposal falling within paragraph (a) or (b) above, sever the transaction in such a way as to secure that, in the notice served by him under this section with respect to that disposal, the terms specified in pursuance of subsection (2)(a) are the terms on which he is willing to make that disposal.”
“The word “premises” does not have a special meaning. It is a word which over the years has been applied to houses, land, shops and the like with the result that it has come to mean real property of some kind. Thus the Act states that a landlord should not make a relevant disposal affecting any real property without serving a section 5 notice, if it consists of the whole or part of a building and it contains two or more flats held by qualifying tenants and the number of those flats exceeds 50 per cent. of the total. The fact that the building is included within one or more titles is irrelevant. It follows that the question of whether a relevant disposal of premises has been made has to be considered on a building by building basis. Thus when ascertaining whether the applicants were a requisite majority, it is not appropriate to take into account Parr Court. Each building must be considered separately. In this case we are only concerned with Tudor House, and buildings 1 and 4 of Tudor Court and in each case the relevant applicants constituted the requisite majority of tenants in the building. Parr Court was a different building. If the tenants wished to purchase the freehold of that building, the question of whether they could do so would be for them to decide. Any decision they took could not affect the rights of the tenants of the other buildings. The contrary conclusion would be surprising. If the original landlord had complied with his duty under section 5, he would, under section 5(5), have had to sever each building from the others. Thus it would be surprising if the procedure laid down after transfer to a new landlord placed the tenants of Tudor House in the position of being governed by the decisions of the tenants of Parr Court.”
“First it is essential to decide what is meant by the provision in section 1(2): this Part applies to premises if — (a) they consist of the whole or part of a building; . . .”
“. . . [I]t was not, however, intended to require integrated developments to be split into inappropriate and unwieldy sections. Parliament cannot be taken to have intended that common yards, gardens and other appurtenant areas should have to be split into one (or even several parts) in order to satisfy section 5(3). Such a result would be absurd. I use the word advisedly.”
“The draftsman of section 1 had not thought of an estate such as the Martello Estate, which is quite common, because often several separated blocks of flats are built as a single development with garages and amenity land attached which are common to all the flat owners in the various blocks and they are often numbered straight through without each block having a separate name. In theory it would have been possible to satisfy the definition by a separate transfer of each of the four blocks to the nominated person, so that each transfer consisted of premises which could be described as “the whole … of a building”
“70. There is no mention in the Act of building schemes or of developments built at the same time. To construe the word “building” in the sense advocated by Long Acre, and suggested by the Leasehold Valuation Tribunal in the 30 Upperton Gardens case[1990] 2 EGLR 232 , would, in my view, be artificial. It would be crossing the boundary between construction and legislation: see Lord Diplock in Jones v Wrotham Park Settled Estates[1980] AC 74 , 105-106. It would also give rise to difficulties of interpretation, because in many cases it would be hard to say whether a development undertaken in stages (as many such schemes are) was or was not a building scheme, within the ad hoc definition favoured by the claimants.”
“71. In my judgment, however, the term “building”, as used in the Act, must have been intended by Parliament to include more than one structure in some, albeit limited, circumstances. The question arises as to what precise circumstances. For example, one could imagine that two structures with a shared access might sensibly be regarded as one building for the purposes of the Act. There is nothing in the legislation, however, which gives any hint that that might have been the intention of Parliament- just as there is no hint that "building schemes" were intended to be regarded as a single building because they were constructed at the same time. 72. There are few clues in the legislation as to how the absurdity involved in construing section 5(3) as referring strictly to a single structure can be avoided. For example, there is nothing in the Act which explains how difficulties associated with severing a transaction can be resolved. It is this absence of provision which has led me to think that Parliament must have intended the Act to be construed so that such provision was unnecessary. It would only have been unnecessary if qualifying flats contained in structures, which had been using the same associated or appurtenant areas in common, were to be regarded as one building for the purpose of the severed transaction contemplated by section 5(3). This is the single most intractable problem identified by Long Acre in this case. It says, with some force, that it would be impossible satisfactorily to divide up the use of the yards, roadways and gardens that have been used in common by the occupiers of all qualifying flats in the estate. 73. Section 4(4) defines “appurtenant premises” as meaning “any yard, garden, outhouse or appurtenance (not being a common part of the building containing the flat) which belongs to, or is usually enjoyed with, the flat”
“[81] For the reasons I have given, I have concluded that the word “building” is used in theLandlord and Tenant Act 1987 (as amended) to mean either a single building or one or more buildings, where the occupants of the qualifying flats in each of those buildings share the use of the same appurtenant premises. In this context, the term “appurtenant premises” is used in the same sense as insection 4 of the Act . [82] The Notice served by Long Acre on31st January 2003 was, therefore, a valid notice.”
“The assumptions by the judge here may be called into question. It may be said: (1) The underlying assumption is that each block should have the right of self-determination rather than preventing the amalgamation of several blocks into one sale. It may be that amalgamating separate buildings into one sale may be a device which s 5(3) is aimed at preventing but equally it may be said that the judge’s decision may make it difficult for tenants across different blocks to co-operate and they may in fact have different interests: eg see Kay Green v Twinsectra Ltd (No 1)[1996] 1 WLR 1587 , CA where one of the four buildings contained two flats and another 44 flats. (2) It is not necessarily the case that appurtenant property would be split in the sense that the party serving the offer notice decides which building is to have the appurtenant property sold to it as part of the sale. The acquisition of the appurtenant property will take subject to the rights of the tenants within the other blocks over that appurtenant property. If no s 5 notice is served any competing purchase notice for the appurtenant property may be the subject of resolution by the First-tier Tribunal under s 13 of the 1987 Act.”
“109 . . . in any event prefer the claimant’s [tenants’] interpretation of the meaning of an appurtenance for the purposes of the 1987 Act. First, as a matter of principle, I consider that the purpose of the Act (being to enable leaseholders better to manage the whole block of which their flat forms a part) is better promoted by an interpretation which includes those parts of the premises which are enjoyed with, or are needed for, the upkeep of the building. Second, that interpretation is consistent with the weight of authority. 110. In Denetower itself, while Sir Nicolas Browne-Wilkinson V-C did not formulate a definition of appurtenance, his conclusion that a piece of unused land was not an appurtenance because the tenants enjoyed no rights over it, nor was it “used in conjunction with the flats” suggests a meaning that is broader than simply land over which tenants are granted rights. 111. In Berisworth[2008] 2 P & CR 3 , para 53, Warren J noted that what is, and is not, appurtenant is very much a matter of fact and degree. Moreover, the approach he adopted, he said (at para 54), reflected the meaning given to appurtenance in section 4(4) of the 1987 Act, namely “any yard, garden, outhouse or appurtenance . . . which belongs to, or is usually enjoyed with, the flat”
“the airspace, at least the height of the chimneys . . . is an essential part of the space over which any owner of the main building with repairing obligations would need to have adequate rights of access.” (Para 70.) 112. I note that in determining that separate garages were not appurtenant to the building, Warren J noted that the tenants did not, in their capacities as tenants, contribute through the service charge to the maintenance of the garage block.”
“. . . broadly in agreement with the claimant that appurtenances include areas over which the tenants have rights under their leases and areas which are usually enjoyed with the building, including those to which access is required by the landlord for the purposes of complying with its obligations (owed to the tenants) to repair and maintain the building.”
“. . . (1) Plans of the structures The plans show Blocks A, B and C/E as physically separate buildings. Blocks C/E share a common entrance and central stair core. The plans tend to show that there are three, rather than one or two, separate buildings. (2) Underlying structural support for the structures The plans show that none of the Blocks provide any structural support for the others, save possibly for Blocks C and E. This points to there being at least three, and possibly even four, separate buildings. (3) Lessees' rights to use appurtenant premises The occupational leases are poorly drafted and fail to make it clear to what extent individual leaseholders enjoy express rights over the amenities and facilities of the development outside their individual blocks. However, leaseholders of Blocks B, C and E clearly enjoy rights of access over Back Beau Street and other communal areas to access their individual blocks. Leaseholders of Block A with appurtenant car parking spaces between Blocks B, C and E clearly have express rights over Back Beau Street and the communal access ways to pass to and from their individual car parking spaces. In practice, leaseholders of all four blocks pass over communal areas to access the refuse storage bins between Blocks C and B. This points to there being only one building, enjoying access from Fox Street via Back Beau Street. (4)Connections at any levels The only connection between different structures is between Blocks C/E. This points to there being three separate buildings. (5) The dates of construction of the structures Mr Howard addresses the construction of all five structures in his evidence, which I have noted at paragraphs 36-38 above. Block A was created from an existing building and was the first to be developed. This was followed by the construction of Blocks B and C/E. However, Blocks A, B, C (and D) were all constructed pursuant to a single planning permission, with planning permission for Block E only being granted some 20 months later. This factor seems to me to be neutral. (6) How the structures are managed (i.e., whether together or separately) There are three separate right to manage companies for Blocks A, B and C/E, all incorporated in January 2021. However, there is a single managing agent, and a single tenants’ association, for all four blocks. This factor seems to me to be neutral. (7) How the service charge is operated The evidence is not entirely clear on this point. Mr Asghar criticises the claimant for providing no proper evidence of how the service charges are, or were, operated; and he invites the court to draw adverse inferences from this omission. However, there are three different right to manage companies for Blocks A, B, and C/E respectively, which manage the service charges for their respective blocks. The existence of three right to manage companies would suggest that there are three separate service charge regimes; but it is not clear to me how the costs of maintaining the external communal areas are treated. I consider that there is insufficient evidence about how the service charge is, or could be, operated to enable the court properly to weigh this particular factor fairly in the balance. (8) Visual impressions The photographic images show an integrated residential development comprising three separate structures (Blocks A, B and C/E) grouped around central parking spaces and communal amenity areas (including an area where refuse is stored in shared bins). These three structures all share a single combined vehicular and pedestrian access from Fox Street. This is consistent with one building rather than three. (9) Means of access to the structures and any appurtenant premises Mr Howard states that Blocks B, C and E were all built on shared grounds as they were one estate, and only one access point was built allowing entrance and exit to Blocks B, C and E. However that access point also adjoins Block A, and it affords access to surface car parking spaces demised to some of the leaseholders of flats within Block A. This is consistent with one building rather than three. (10) How the structures are serviced Blocks A, B, C and E are all serviced via Back Beau Street. This is consistent with one building rather than three. (11) The sharing of common facilities and amenities Mr Howard states that Block B was built without any basement or plant room. This was because the basement under Blocks C and E was built to be utilised as the plant room for all of Blocks B, C and E. All the services were installed to accommodate all three blocks. There was one boiler installed to service all three blocks; there was one CCTV system installed to service all three blocks; the generators, substations, and service tanks were installed to service all three blocks. The three blocks were all painted the same colour, and they had the same features fitted. Structurally and aesthetically, there is nothing to differentiate Blocks, B, C and E. None of this applies to Block A. All of that suggests that they comprise two separate buildings. However Block A shares a single combined vehicular and pedestrian access from Fox Street. That points to one building rather than two. (12) The planning history of the structures, and any enforcement action taken in relation to planning requirements and conditions Mr Howard’s understanding was that planning permission for the construction of Blocks B, C and E was granted at the same time. In fact, planning permission for Blocks A, B, C and D was granted at the same time (on22 April 2015 ), with a separate planning permission for Block E being granted (on20 December 2016 ) some 20 months later. When the local planning authority took enforcement action for alleged breach of planning control, a single enforcement notice was served in relation to all five blocks. Unsurprisingly, this gave rise to a single appeal, and a single decision of the planning inspector, quashing the enforcement notice for failing to specify with sufficient clarity the alleged breach of planning control, and the steps required for compliance. Liverpool City Council have also served a single planning contravention notice, dated30 May 2024 , asserting that the development of all five residential blocks A-E was not in accordance with the relevant planning permissions and planning application. This all points to there being only one building. (13) The requirements of housing legislation and building and other applicable regulations, and the measures considered necessary to enforce compliance with them Liverpool City Council served a single improvement notice, dated6 June 2024 , undersection 11 of the Housing Act 2004 in relation to all four blocks, founded upon the existence of a Category 1 electrical hazard in the form of an unauthorised, unmetered electrical supply to all of the flats and common parts within Blocks A, B, C and E. On the same day, the City Council also served a single electricity improvement notice for all four blocks. This points to only one building. Earlier, however, the City Council had served two separate prohibition orders, dated 29 March and17 April 2019 , on Block B and Blocks C and E. With the addition of Block A, that points to three buildings rather than one or two.”
“As I have foreshadowed (at [81] above), certain of these factors point in one direction whilst other factors point in another. I have tried to weigh all of them in the balance in what is essentially a multi-factorial evaluation exercise. I have acknowledged that in any individual case, a particular factor, or factors, may exert a magnetic attraction in favour of a certain conclusion. In the present case, the factor of magnetic attraction seems to me to be the shared use of Back Beau Street as the only means of access to the car parking spaces outside Blocks C and E, and possibly Block B, that have been demised to the leaseholders of flats in Unit A. Against that background, I can well understand the reticence on the part of the drafter of the plan attached to the section 5 offer notices in abjuring any attempt to parcel up the open spaces within the Fox Street Village development between the four different blocks.”
“I appreciate that hitherto the focus of the authorities has been upon the rights of leaseholders of structures generally to access, and to make use of, appurtenant premises. However, I see no reason why the court should not afford equal weight to the rights of particular individual leaseholders to access, and make use of, appurtenant premises in the form of individual car parking spaces that have been demised to them. When this particular factor is added in with all the other factors that point to the existence of a single ‘building’, within the meaning, and for the purposes, of Part 1 of the 1987 Act, in my assessment and judgment it outweighs all countervailing factors and considerations.”
“Presumption that ‘absurd’ result not intended (1) The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the legislature. Here, the courts give a very wide meaning to the concept of 'absurdity', using it to include virtually any result which is impossible, unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief. (2) The strength of the presumption against absurdity depends on the degree to which a particular construction produces an unreasonable result. (3) The presumption may of course be displaced, as the ultimate objective is to ascertain the legislative intention.”
“An Act to confer on tenants of flats rights with respect to the acquisition by them of their landlord’s reversion.”
“The Act was passed with a view to giving leaseholders of residential flats in a block of flats improved rights to control the upkeep and maintenance of the block as a whole. Part I of the Act confers on such tenants a right of first refusal when the landlord is proposing to dispose of his reversion. If the landlord assigns the reversion in breach of such right of first refusal, the tenants are given a right to acquire the reversion from the assignee. . .”