ABN Group Holdings Limited v Yarrow (PC) Limited [2026] EWHC 1484 (Ch)

[2026] EWHC 1484 (Ch)

Case No PT-2025-MAN-000143

IN THE HIGH COURT OF JUSTICE

Venue BUSINESS AND PROPERTY COURTS IN MANCHESTER

PROPERTY, TRUSTS AND PROBATE LIST (ChD)

Venue Manchester Civil Justice Centre

1 Bridge Street West

Venue Manchester M60 9DJ

Date Tuesday, 19 May 2026

Before

HIS HONOUR JUDGE HODGE KC

Sitting as a Judge of the High Court

Between

ABN GROUP HOLDINGS LIMITEDClaimant

-v-

Between

YARROW (PC) LIMITEDDefendant

MR TOM HARRIS (instructed by Shakespeare Martineau, London) appeared for Claimant

MR JUSTIN BATES KC (instructed by TLT LLP, Salford) appeared for Defendant

APPROVED JUDGMENT

(Approved on 18 June 2026 in London)

__________________

This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

JUDGE HODGE KC:

[1]This is my extemporary judgment on three interim applications in a claim proceeding in the Property, Trusts and Probate List of the Business and Property Courts in Manchester under claim number PT-2025-MAN-000143.

[2]The claim concerns a dilapidated block of former residential flats known as Ayton Court and situated at Ayres Road, Old Trafford in Manchester.

[3]The claimant is the long leaseholder of the property, ABN Group Holdings Limited. It is represented by Mr Tom Morris (of counsel). It acquired a long lease of the property dated 25 January 2017 for a term of years expiring on 25 January 2140 on or about 16 February 2021. Perhaps surprisingly, given the condition of the property, the Proprietorship Register records the value of the property (stated as at 16 February 2021) in a sum of just under £5.5 million.

[4]The defendant is Yarrow (PC) Limited. It acquired the freehold reversion of the property indirectly, through an intermediate purchaser from Grey GR Limited Partnership, on 20 December 2024, although it was only registered as the freehold proprietor of the property on 1 October 2025. The defendant is represented by Mr Justin Bates KC.

[5]In the early hours of 24 January 2025, the defendant purported to forfeit the long lease of the property for non-payment of rent. There was an annual rent payable on 1 January each year; and no rent had been paid on 1 January 2022, 2023, 2024 or 2025. The lease contained a proviso for forfeiture for non-payment of rent after 21 days of any relevant payment of rent falling due.

[6]The defendant took steps to place the property for sale by auction with Allsop. Auction particulars were prepared for an auction to take place on 18 September 2025. Again, surprisingly, given the condition of the property (to which I will turn in a moment), the guide price was stated to be £1.1 million. Key features of the property were described as follows: - Internally arranged to provide 29 self-contained flats and an office area. - Formally arranged to provide 18 studio flats, seven one-bedroom flats, three two-bedroom flats, one three-bedroom flat and an office area. - Presented in ‘shell condition’. - Possible potential for conversion of office to form a further self-contained flat, subject to consents. - Further potential for redevelopment, subject to consents. - Situated within close proximity of Manchester City Centre.

[7]Under the heading ‘Accommodation’ it is stated that the property was:

“Formally arranged to provide 18 studio flats, seven one-bedroom flats, three two-bedroom flats and one three-bedroom flat. The flats are presented in shell condition and interested parties should undertake their own inspection of the property to ascertain both the layout and the current conditions and will be deemed to bid accordingly.”

[8]The claimant’s pleaded case (at paragraph 37(4) of its particulars of claim) is that the claimant had no knowledge of the re-entry until around 29 August 2025. That is disputed by the defendant. Effectively, the defendant says that a person who was attending at the property on behalf of the claimant to ensure its security had been told of the re-entry at the time this was effected, and that the defendant’s solicitors had written to the claimant at its registered office, by first-class post and by special delivery, explaining the legal position in respect of the property following the peaceable re-entry. According to Royal Mail Track and Trace details, the letter sent by Special Delivery was signed for by the claimant’s receptionist just after 1.00 pm on Monday 27 January. However, that letter was then returned a few weeks later, together with the first-class version, to the offices of the defendant’s solicitors on 3 March 2025, with the address scribbled out and marked ‘Return to sender’. The circumstances of that return, and the reasons for it, have not been addressed in the claimant’s evidence.

[9]The claimant issued a claim form for possession of the property, in Form N5, on 12 September 2025. It did so in the Business and Property Courts in Manchester. The reason for this is explained at paragraph 3 of the particulars of claim. It is there pleaded that since the County Court has no jurisdiction to grant relief against forfeiture under Section 139(2) of the County Courts Act 1984, since the application for relief had been made more than six months after the date of the purported re-entry, the claimant was invoking the inherent jurisdiction of the High Court; and, necessarily, these proceedings were being issued in that court. The claimant sought possession of the property on the basis that the defendant was occupying it as a trespasser. It asserted that the purported peaceable re-entry for non-payment of rent was of no effect because prescribed notices informing the claimant of the transfer of the freehold reversion to the defendant had not been served. In the alternative, the claimant sought relief against forfeiture of the lease.

[10]A defence and counterclaim was served. That was followed by a reply and defence to counterclaim. Those pleadings were closed, with the service of the reply and defence to counterclaim, on 13 November 2025. That statement of case raised a number of objections to the adequacy of the pleaded counterclaim.

[11]Three applications were issued and are now before the court. The first in point of time, dated and issued on 16 October 2025, is an application by the defendant for strike out, pursuant to CPR 3.4(2) and, strictly in the alternative, for summary judgment pursuant to CPR 24.3. That application is supported by the witness statement of Mr Gareth Milner dated October 16 2025. Mr Milner is an in-house solicitor employed by Landmark Collections Limited, which is a company within the same group as the defendant. That was followed by an application notice, dated and issued on 1 December 2025, by the claimant, seeking orders, pursuant to CPR 3.4, that various paragraphs of the defence, and the entirety of the counterclaim, should be struck out; and, in the alternative, an order, pursuant to CPR 24.3, that summary judgment is entered in respect of paragraph 4(3) of the defence and counterclaim and that the entirety of the counterclaim be struck out; and in the further alternative, that summary judgment be entered in respect of paragraph 4(3) of the defence and counterclaim. Paragraph 4(3) essentially purports to put the claimant to strict proof that, as at the date of the alleged forfeiture, the lease was capable of being enforced, and had not previously been surrendered by operation of law or otherwise rendered unenforceable.

[12]There is now a third application before the court, dated 30 January 2026 and issued on 11 February of this year. That is an application by the claimant seeking summary judgment in its favour that the claimant was the lessee of a dwelling for the purposes of Section 46 and 60 of the Landlord and Tenant Act 1987 and Section 166 of the commonhold and Leasehold Reform Act 2002.

[13]The claimant’s applications are supported by the witness statement of its director, Mr Irfan Mirza, dated 22 December 2025. The defendant also relies upon a witness statement of Mr Andreas Mezere, dated 7 May 2026. He is employed by Home Ground Management Ltd as an invoice and credit control manager. That entity was employed as managing agents by Gray GR Limited Partnership, who previously owned the freehold of Ayton Court. As such, Home Ground Management Ltd had been responsible on its behalf for demanding and collecting rents.

[14]Mr Mezere purports to give evidence of the service on the claimant of invoices for ground rent sent on 7 July 2022 in respect of the year commencing 1 January 2022 and on 22 November 2022 for the period commencing 1 January 2023. Those invoices, together with two chasers in the form of payment reminders for the earlier rent invoice, sent on 14 October and 11 November 2022, were all sent to the claimant’s registered office at 85 Great Portland Street, London.

[15]The matter came before Deputy District Judge Walthall, apparently on the papers. He adjourned a hearing that had been listed to take place on 14 January 2026 on the grounds that insufficient time had been allotted to deal with all of the applications. He gave various case management directions, which have been observed. Paragraph 7 of his order directed that the court was to consider what further directions to give for the progression of the proceedings at the adjourned hearing, which in the event has been listed before me today, Tuesday 19 May 2026; and he reserved the costs. In the event, I have received both a digital and a hard copy hearing bundle extending to some 390 pages, and an agreed bundle of authorities extending to some 317 pages. I have also received detailed, and helpful, written skeleton arguments from both leading and junior counsel for the parties. The principal issues I have to determine are really five in number:(1) Was the lease held by the claimant a lease of a ‘dwelling’ for the purposes of the 1987 and 2002 Acts? The claimant leaseholder says that the answer is yes. The defendant says that the answer is no. The answer matters because if it were a lease of a dwelling for those purposes, then various notices had to be served before any forfeiture could validly be effected. That in turn gives rise to the second issue.

(2) If the lease was one of a ‘dwelling’, so that the notices required by statute had to be served, were they served? The defendant freeholder says that the answer is yes, whereas the claimant says that the answer is no. The real focus here is on the acts of the defendant’s predecessor in title rather than the defendant.

(3) A third issue is whether the service of a notice on the claimant by the defendant’s solicitors, dated 23 January 2025, under Section 3 of the Landlord and Tenant Act 1985 and Sections 47 and 48 of the Landlord and Tenant Act 1987, had operated as a waiver of any existing right of forfeiture for non-payment of rent.

(4) Whether the claimant is entitled to seek relief from forfeiture on the basis of its presently-pleaded case.

(5) The fifth and final issue arises from certain pleading points taken by the claimant as a result of the first of the claimant’s application notices.

[16]The parties take no issue with the applicable procedural law. They are both content to proceed on the basis of the principles applicable to applications for summary judgment, as formulated by Lewison J, and subsequently approved by the Court of Appeal, in Easyair Ltd v Opal Telecom Ltd

[2009] EWHC 339 (Ch)

, at paragraph 15. They are conveniently set out at paragraph 24.3.2 of the commentary at pages 656 to 657 of the current (2026) edition of Volume 1 of Civil Procedure. There is no suggestion that this is a developing area of jurisprudence. There is no suggestion that there is some other compelling reason for the matters raised on these applications being disposed of at a trial if the court should consider that either party has no real prospect of succeeding on their respective cases. The real question before the court is whether the matters raised by these applications can properly be disposed of at this hearing on the papers, and without disclosure and oral evidence at trial. There is also no issue as to the proper approach of the court to an application to strike out.

[17]At this point it is perhaps convenient to say a little more about the evidential background. So far as the condition of the property is concerned, this is addressed in an inspection report dated 13 October 2025 that was obtained by the defendant after its peaceable re-entry on the property from Fletcher CRE Ltd. This forms part of the exhibit to the witness statement of Mr Milner. At section 2.1 he records that:

“An internal inspection was undertaken to assess the overall condition and habitability of the premises. These comprise of a three-storey residential plot that was formally arranged as a number of self-contained flats. At the time of inspection, the building was found to be vacant, derelict and in a severe state of disrepair. It is apparent that the building has been neglected for an extended period and now presents as structurally unsafe and wholly unsuitable for occupation in its current form.”

[18]Paragraph 2.2, headed ‘Summary of Condition’, reads:

“Across all areas of the property it was immediately evident that there are no functioning kitchens or bathrooms and no facilities that could support any form of occupation. There are no separate or lockable entrances to individual flats and the building as a whole is entirely uninhabitable. The interior, particularly on the upper floors, is extensively contaminated with pigeon and rodent infestation including widespread droppings and multiple dead pigeons throughout. The structure has suffered from long-term water ingress, roof failure and general environmental decay. Based on professional experience inspecting a wide range of residential and commercial properties, this building is unquestionably one of the worst examples of neglect and contamination encountered. No section of the property could be reasonably regarded as a single dwelling or capable of independent occupation without full reconstruction.”

[19]Section 2.8 is headed ‘Conclusions’:

“In my professional opinion Ayton Court is entirely unfit for human habitation. The absence of kitchens, bathrooms and any basic services, combined with severe damage throughout and infestation, renders the property beyond repair without a complete strip-out and rebuild. The extent of pigeon contamination and organic waste presents a serious health risk requiring specialist biohazard remediation. Substantial financial investment would be required to bring the building to any form of occupiable standard, including full structural repair, reinstatement of all services, installation of new kitchens and bathrooms, pest eradication and deep cleaning. From many years of surveying and inspecting buildings of varying condition I can confirm that this property ranks amongst the most degraded and unhygienic I have personally inspected. It is not suitable for habitation or letting in its current state and would require total redevelopment before any occupation could be contemplated.”

[20]That description is amply evidenced by the various photographs that are contained within the inspection report and form pages 165 through to 244 of the hearing bundle.

[21]Having taken me through that report, Mr Bates submitted that the property could hardly be called a ‘dwelling’. Rather, it is an ‘uninhabitable wreck’. Mr Bates asked rhetorically:

“How bad does a building have to be before it ceases to be a dwelling?”

The question whether the building qualifies as a ‘dwelling’ is an objective question, to be determined as of the date of forfeiture on 24 January 2025. Mr Bates, for the defendant, submits that there was no intention that it should be used as a ‘dwelling’ at that time.

[22]The claimant has drawn my attention to a brochure that was apparently prepared in or about 2019. That portrays a very different picture of the property, both in terms of photographs and written description. Under the heading ‘Investment Considerations’, the property is said to be fully let and to be an unbroken block comprising 29 self-contained flats, with a total reserved rent of almost £161,000 per annum, with a gross yield of 8.7 per cent.

[23]Mr Mirza describes the claimant’s acquisition of the property in his witness statement, beginning at paragraph 5. He states that the claimant purchased the property in 2021 as part of a portfolio of other properties which were being acquired. In his view, the property represented an excellent investment opportunity. Following completion, however, Mr Mirza became concerned about the financial return that might flow from the investment. At the time the claimant purchased the property, it was vacant. It had been stripped back to shell condition in preparation for refurbishment. Mr Mirza’s understanding was that the previous owner had obtained vacant possession of the property in around 2020 in order to commence strip-out and preparatory works.

[24]Mr Mirza relates that having purchased the property in February 2021, the claimant set about drawing up plans for works to be undertaken to the property. It was residential; it was configured to be such; and the claimant’s intention was for it to be used for residential purposes. He refers to copies of plans prepared by the architects following the service, on 14 June 2022, of an initial notice pursuant to Section 47 of the Building Act 1984. The claimant’s intention had been to use the existing layout for the flats. That notice is in evidence and describes the works as: ‘Refurbishment, replacement of external windows and doors, and alterations to existing 29 apartments’.

[25]At paragraph 10, the property is said to have remained in the same state throughout the claimant’s ownership. It is on that statement that Mr Bates relies to say that the property has remained throughout in the condition described in Fletcher CRE Limited’s inspection report of 13 October 2025. Mr Mirza states that the claimant’s intention at all times has been to carry out refurbishment works and, once completed, to grant leases of the residential units in accordance with the architects’ plans, which he has exhibited. That is said to remain the claimant’s intention.

[26]At paragraph 11 it is said that it is clear from these documents that the claimant’s proposals were to maintain the well-established residential status of the property. The defendant seems to suggest that the claimant had no intention to develop the property, but this is simply not the case. The property is being held in order to continue its residential use; and once the claimant has recovered back possession, the property will be refurbished. It will be possible to start very soon after possession is obtained from the defendant.

[27]For completeness, Mr Mirza relates that enabling works for the refurbishment commenced in 2022. A detailed bill of quantities was prepared by the quantity surveyor and issued for tender. The tender return showed a significant increase in construction costs, of approximately 20 per cent, which reflected the national market conditions at the time. As a result, the works did not commence at that time. The failure to commence the works was as a result of the fact that Mr Mirza had other ongoing projects at the time, and so the claimant’s shareholders decided to prioritise other matters. In addition to the increased cost of the works, at that time the cost of borrowing was particularly high. The increase in interest rates at that time significantly increased the cost of the project and so, whilst the claimant was committed to undertaking the works, it decided against proceeding at that time.

[28]Mr Mirza adds that the defendant’s predecessor in title did not appear concerned at the state of the property, and was not issuing any demands for payment of the rent, and so, in Mr Mirza’s view, there was no liability arising in respect of the property.

[29]At paragraph 21, Mr Mirza states that whilst the defendant seeks to portray the property as little more than a wreck, he knows that it can easily be refurbished, so that the individual flats within it can be re-let. He estimates that the works could be completed in around six months, and certainly within a year.

[30]Mr Bates submits that there was no intention to occupy the property as a dwelling; the intention of the claimant had been to hold the property and simply to see what happened in terms of increasing development costs and the likely return on any refurbishment of the property.

[31]That is the evidence concerning the state of the property. Why does all of that matter? The reason is to be found in the provisions of the 1987 and 2002 Acts. Part VI of the Landlord and Tenant Act 1987 is headed ‘Information to be Furnished to Tenants’. Section 46 provides that Part VI of the Act “applies to premises which consist of or include a dwelling and are not held under a tenancy to which Part II of the Landlord and Tenant Act 1954 applies”. The term ‘dwelling’ is defined in Section 60 (1) as follows:

“In this Act … ‘dwelling’ means a building or part of a building occupied or intended to be occupied as a separate dwelling ... If the property is premises which consist of or include a dwelling within Section 60, then Section 48 is engaged. So far as relevant, this provides: “(1) A landlord of premises to which this Part applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant. (2) Where a landlord of any such premises fails to comply with subsection (1), any rent, service charge or administration charge otherwise due from the tenant to the landlord shall (subject to subsection (3)) be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection.”

So, whether the notice requirements of the 1987 Act apply turns on whether the property consists of or includes part of a building intended to be occupied as a separate dwelling.

[32]Similar definitions apply for the purposes of the Commonwealth and Leasehold Reform Act 2002. Subsection 166(1) of that Act provides that:

“A tenant under a long lease of a dwelling is not liable to make a payment of rent under the lease unless the landlord has given him a notice relating to the payment; and the date on which he is liable to make the payment is that specified in the notice.”

[33]The definitions for the purposes of both Acts are identical; and so the real issue for the court is whether the property consists of or includes part of a building intended to be occupied as a separate dwelling.

[34]The leading case on the statutory definition is the decision of the Court of Appeal, delivered by Lewison LJ, in the case of Cloisters Business Centre Management Co Ltd v Anvari

[2026] EWCA Civ 17

[2026] 1 P & CR 20

. That case concerned a lease of mixed-use premises in a converted Victorian building which was in fact used for storage but subject to a covenant that the premises be used only as “offices (and ancillary residential use)”. The issue was whether the lease was of a dwelling for the purpose of Section 38 of the 1985 Act and thus subject to the restriction that applies to residential service charges under that Act. The Court of Appeal held that it was a lease of a dwelling.

[35]For the claimant, Mr Morris submits that the following points can be distilled from Lewison LJ’s leading judgment:(1) There is no requirement that a tenant himself must be in occupation of the dwelling.

(2) There is no requirement that the dwelling must be the only property contained in the tenancy.

(3) Whilst an earlier form of the 1985 Act turned on a now repealed definition of ‘flat’ which was required to be occupied wholly or mainly as a private dwelling, that restriction has now gone.

(4) The question whether a dwelling is ‘separate’ depends on whether the tenant shares living accommodation with anyone else. A part of a building that is self-contained, i.e. one which shares no living accommodation with another part of the building, will be ‘separate’ for this purpose.

(5) The new definition of ‘dwelling’ directs attention to whether the premises are occupied or intended to be occupied as a separate dwelling.

(6) There is no requirement that the premises have to be occupied as someone’s home.

[36]The Court of Appeal drew on a dictum of the Deputy Chamber President in JLK Limited v Ezekwe

[2017] UKUT 277 (LC)

, reported at [2017] L&TR 29, where he said (at paragraph 32):

“Whether a building or part of a building is ‘occupied or intended to be occupied as a separate dwelling’ requires a consideration of the objective purpose for which it is occupied or intended to be occupied. That purpose will often be apparent from the design of the unit itself but, as in this case where occupation for any purpose other than as or incidental to a private dwelling is prohibited, the terms of the letting may also be significant.”

[37]Having cited that dictum at paragraph 31 of his leading judgment, Lewison LJ said:

“I agree with this, but in the case of mixed-use property I would place more emphasis on the terms of the letting, which is the objective manifestation of the parties’ mutual intention, although plainly the physical configuration of the leased property will always be relevant.”

[38]I note that that qualification was said in terms to apply in the case of mixed-use property. I accept Mr Bates’s submission that, on analysis, Lewison LJ’s emphasis upon the terms of the letting is of particular relevance in the case of a mixed-use property, such as that in the Cloisters Business case. In a case such as the present, I consider that equal emphasis should be accorded to the physical configuration and, indeed, the condition of the property.

[39]I accept Mr Bates’s further submission that the relevant intention is not a once-and-for-all intention, to be determined at the grant of the lease. One must enquire what was the objectively ascertained intention at the relevant time which, in this case, is the physical re-entry on 24 January 2025, and not simply the position when the lease was granted.

[40]So far as the terms of the lease are concerned, the lease itself is a singularly unhelpful document. That is because clause 2.1, under the heading ‘Grant’, provides that the landlord lets, with full title guarantee, the Property to the tenant “for the permitted user for the term.” That is unhelpful because ‘permitted user’ is not one of the defined terms to be found in the interpretation clause (clause 1) of the lease. Looking at the definitions of ‘flats’ and ‘flat tenants’, it seems to me that the permitted use contemplated by the lease was the use of the premises for letting and occupation as a number of single private dwellings in the form of individual flats.

[41]It is common ground that the property was not occupied as a ‘dwelling’. It is common ground that no part of the property was occupied as a ‘separate dwelling’, as at the date of forfeiture. The question is whether, as at that date, any part of the property was “intended to be occupied as a separate dwelling”. In other words, were any of the 29 formerly self-contained flats within the dwelling “intended to be occupied as a separate dwelling”?

[42]Mr Bates submits that the test to be applied is that set out at para 7.190 of Volume 1 of Woodfall on Landlord and Tenant:

“Whether a building or part is ‘occupied or intended to be occupied as a separate dwelling’ requires a consideration of the objective purpose for which it is occupied or intended to be occupied.”

I accept that statement of the relevant law, although I would add the qualification that that question falls to be answered at the relevant point in time which, in the present case, is 24 January 2025, the date of the physical re-entry on the premises by the defendant landlord.

[43]Mr Morris, for the claimant tenant, places particular reliance upon the recent decision of Sir Anthony Mann, sitting as a judge of the High Court, in the case of Sheppey Beach Villas Ltd v Taylor

[2026] EWHC 647 (Ch)

. That was a case where a property had recently been largely destroyed by fire. The question was whether it nevertheless remained a ‘dwelling’ for the purposes of the 2002 Act.

[44]On a first appeal from a decision of his Honour Judge Parker in the court below, Sir Anthony Mann upheld the first-instance judge’s conclusion that the building remained a ‘dwelling’ on the basis that it was intended to be occupied as a separate dwelling because that was the intention or contemplation of the parties as reflected in the lease. It was acknowledged that the dwelling at that time was a wreck. However, the first instance judge considered that the property’s ruinous state did not disqualify it as a ‘dwelling’. He focused upon the fact that the property could still be called a building even though it was largely gone. It was a fire-damaged, or even a ruined building, but it was still a building. It was clearly not occupied as a separate dwelling but it was intended to be so occupied. The judge had taken into account the intention expressed in the lease and, perhaps, as demonstrated by subsequent conduct.

[45]At paragraph 59, Sir Anthony Mann recorded that the judge had also held that the intention could relate to some future date, and it did not require an immediate intention to occupy. At paragraph 60, Sir Anthony agreed with the judge on his finding of intention. The intention was that the property should be used as a ‘dwelling’, which was obvious from its nature, and from the terms of the lease. Whilst it was a wreck, it could not be occupied; but the intention remained. Nothing in the surrounding circumstances demonstrated any change of intention arising out of the fire.

[46]Mr Bates submits that the claimant can derive no benefit from that decision. He says if anything it helps the defendant. The fire damaged wreck in that case remained a ‘dwelling’ because there was only a short period of time, measured in months, between the fire and the enfranchisement notice. Here, there have been several years of inaction by the claimant.

[47]The correct position, so Mr Bates submits, is for the court to step back and ask whether, objectively, there is any intention to use the land as a ‘dwelling’. He submits that there is no such intended use. Indeed, he says that the claimant is commendably candid about this. Its current intention is to do nothing because the refurbishment costs are too high. Redevelopment did not proceed in 2022 because of a significant increase in construction costs. Mr Bates invites the court to take judicial notice of the fact, as I do, that this is still a huge problem in the construction industry in the United Kingdom. He says that what the claimant has been doing is holding a wreck in hand, hoping, Micawber-like, that something will come up, and the economy will improve, so at that stage it can set upon refurbishing the property, and try to turn a profit. That is not an apt description, or approach, to the question whether a property is intended to be used as a ‘dwelling’.

[48]As I say, I accept that the relevant test is not a once-and-for-all test, to be applied at the commencement of the lease. The test has to be applied at the time of the forfeiture. I acknowledge that in the Sheppey case the critical feature was that the fire was an accident and was no one’s fault. Here it is clear that the subject property had been stripped out at some time between 2019 and the claimant’s acquisition of the property in the middle of February 2021.

[49]In the present case, I agree with Mr Bates that the terms of the lease, insofar as they can be discerned at all, are not determinative of the issue. This is not a mixed-use case. I have to ask myself, as Woodfall suggests, whether this building was intended to be occupied as a separate dwelling as at 24 January 2025. I have to consider the objective purpose for which, at that time, it was intended to be occupied.

[50]The property had already been allowed to remain in its present condition for four years, ever since the claimant had acquired the property. No active steps were being taken to refurbish the property. True it is that in June 2022 notice had been given under Section 47 of the Building Act 1984 in connection with a proposed refurbishment of the property. But that proposal had been abandoned; and there is no evidence that it had been revived as at January 2025.

[51]What is perhaps a telling feature is that following the peaceable re-entry upon the property, no steps were taken to address that incursion until the defendant had given instructions for the property to be offered for sale at auction, which seems to have been the catalyst for the issue of the present claim form on 12 September 2025.

[52]Asking myself the question: “What was the objective purpose for which the property was intended to be occupied as at January 2025?”, it seems to me that Mr Bates is correct to say that the intention was to hold the property until the economy improved. At that point, the intention was either to refurbish, it with a view to offering it for sale to an investment purchaser, which would take the benefit of a development already carried out by the claimant; or to offer it for sale with a view to the purchaser developing the property. But in January 2025, there was no intention to occupy any part of the property as a separate dwelling. The property required far too much work for that. The intention was to continue to hold it until such time as the market improved to such an extent as to render it profitable either to sell the property on in its existing state, or to refurbish it and then sell it on to a further investor.

[53]So, for those reasons, I would determine the first issue in the defendant’s favour, and hold that the lease was not held by the claimant as the lease of a ‘dwelling’ for the purposes of the 1987 and 2002 Acts as at 24 January 2025.

[54]It is therefore strictly unnecessary for me to go on to consider the further questions since this is not a trial on oral evidence but an application on the papers. I can deal with them rather more shortly than would be necessary if the court were required to make findings of fact, essentially for the purposes of any appeal court in the event of a successful appeal from the court’s primary determination.

[55]The second issue is whether the requisite statutory notices had been served. On that, the evidence is somewhat meagre. Mr Milner’s evidence, at paragraph 30 of his witness statement, is that on 7 July and 22 November 2022 the defendant’s predecessor in title had served on the claimant rent demands which satisfied the requirements of Section 166 of the 2002 Act, regardless of the fact that at all material times that section had not applied to the lease.

[56]That evidence has now been supplemented by that of Mr Mezere. There is good reason for that. Mr Milner’s evidence was entirely hearsay. In his witness statement, Mr Mezere states that Home Ground Management Ltd uses an established system whereby all correspondence is fully automated so as to be sent via First-Class post within the prescribed rent-demand dates within the relevant lease. The correspondence is also available via an online security portal. At paragraph 5, Mr Mezere relates that according to the system, invoices were sent out, on the dates I have already indicated, to the claimant at its registered office; and further payment reminders were sent out in relation to the first of those invoices in respect of ground rent for the period 1 January 2022 to 31 December 2022. So there is evidence that the relevant invoices and reminders were sent out by First Class post to the claimant’s registered office.

[57]What is the evidence of Mr Mirza in response to that? At paragraph 22 of his witness statement, Mr Mirza states that, based upon his experience of residential property, he is aware that rent is not due unless valid rent demands have been served. He was not in receipt of any such demands, and therefore he did not consider the property to be at risk from forfeiture. He had had correspondence with the defendant’s predecessor’s appointed solicitors and that they had said that they were going to issue a claim. Mr Mirza says he does not have any record of rental demands dated 7 July or 22 November 2022. At paragraph 23 he states:

“I did not receive rent demands or any other correspondence. We have a registered office which accepts and scans post to me. If anything was sent, we would have received it. In preparing the claim I thoroughly checked my records and found no record of correspondence from any of the previous landlords.”

[58]Mr Bates submits that that is not enough. He relies upon the Court of Appeal’s decision in the case of Khan v D'Aubigny

[2025] EWCA Civ 11

, reported at

[2025] Ch 168

. That case decided that Section 7 of the Interpretation Act 1978 has no application for present purposes. However, the Court of Appeal also went on to hold that where a letter containing a document has been properly addressed, prepaid and posted, a rebuttable presumption arises at common law that the document has been properly served. There is no relevant distinction between that common law presumption and the statutory presumption under Section 7 of the 1978 Act. Where a court has accordingly found that a party’s evidence is insufficient to rebut the statutory presumption, it must follow that that evidence is insufficient to rebut the common law presumption.

[59]I am satisfied that the evidence set out at paragraph 23 of Mr Mirza’s witness statement does raise a triable issue as to whether the rent demands were ever validly made, for the purposes of the statute. Mr Bates submits that there is positive evidence that the rent demands were sent. That gives rise to the presumption recognised in Khan v D'Aubigny; and once one gets to that point, it is for the person denying receipt to prove that they did not receive the document.

[60]On my reading of the evidence, Mr Mirza has raised sufficient doubt as to whether the documents were received for the matter to go to trial. It is not something which I would have been prepared to resolve on a summary judgment application on the papers.

[61]Mr Morris also raises an issue of waiver. He submits that the notice that was served of the assignment and disposal of the freehold reversion to the defendant on 23 January, in accordance with Sections 3 of the 1985 Act and 47 and 48 of the 1987 Act, amounted to a waiver of any pre-existing right of forfeiture. Mr Morris submits that they clearly amounted to a recognition of the continued existence of the lease as at that date, and therefore operated as a waiver of any pre-existing right of forfeiture. I do not accept that submission.

[62]In his skeleton argument, Mr Bates dealt with the matter merely in a footnote. He submits that notice of assignment is required by various statutes, and that compliance with a statutory provision cannot amount to a waiver. He refers to a decision of his Honour Judge Huskinson, sitting as a Judge of the Lands Chamber of the Upper Tribunal, in Stemp v 6 Ladbroke Gardens Management Ltd

[2018] UKUT 375 (LC)

, reported at

[2019] HLR 18

. That case concerned the question whether a right to forfeit for non-payment of rent had been waived by the service of a notice by the landlord.

[63]The relevant notice in that case was a notice relating to consultation with the tenants in connection with service charge payments. At paragraph 82, the judge stated that in the circumstances which pertained, he did not consider that the landlord’s actions in including the tenants within the consultation process, on the basis of the applicants being leaseholders (which is what they in fact still were) was so unequivocal an action that, when considered objectively, it could only be regarded as being consistent with the lease continuing.

[64]Later, at paragraph 83, the judge pointed out that the landlord continued to have responsibilities regarding the state of the building. Where the landlord had proclaimed that it was proceeding towards the forfeiture of a lease for an identified breach, and where the landlord in the meantime performed its responsibilities, which it could not properly omit regarding the building, the judge did not consider that reliance by the landlord upon the terms of the lease for the purpose of performing those responsibilities amounted to an action so unequivocal that, when considered objectively, it could only be regarded as being consistent with the lease continuing.

[65]During the course of argument, I drew the attention of counsel to a case in which I had appeared as counsel for the unsuccessful defendant, before Hirst J, in 1985. The case is Church Commissioners v Nodjoumi

(1985) 51 P & CR 155

. There, I sought unsuccessfully to argue that the service of a Section 146 notice as a preliminary to forfeiture waived the right to forfeit for pre-existing arrears of rent. Hirst J roundly rejected that submission, and in my judgment rightly so.

[66]In the present case, what the landlord was doing was simply serving the notices required by statute to enable it to pursue the claimant tenant for arrears of rent. Section 48(1) of the Landlord and Tenant Act 1987 requires the landlord of premises to furnish the tenant with an address at which notices may be served upon him. Subsection (2) provides that where a landlord of any such premises fails to comply with that duty, any rent, service charge or administration charge otherwise due from the tenant to the landlord shall, subject to an immaterial exception, be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection. If the service of such a notice were to operate as a waiver of a pre-existing right of forfeiture, a landlord would find himself caught in a Morton’s fork. On the one hand, he would be unable to pursue the arrears without having served the Section 48 notice; on the other hand, if Mr Morris is right, then by serving such a notice he would waive the pre-existing right of forfeiture.

[67]Mr Morris sought to get out of that difficulty by submitting that what was being waived was the right to pursue the pre-1 January 2025 existing arrears of rent which had accrued due to the former landlord, and in respect of which the right of forfeiture had already passed to the defendant with the freehold reversion.

[68]The difficulty with that response, it seems to me, is that Section 48(2) prevents the landlord recovering any rent otherwise due from the tenant to the landlord. Just as the right of forfeiture had passed to the defendant on the transfer of the freehold reversion, so too had the right to the arrears of rent. They therefore fell within the scope of Section 48(2) because they were rent otherwise due from the tenant to the landlord. The landlord could take no steps to forfeit for those arrears of rent without compliance with the requirements of Section 48(1) because they would be treated by Section 48(2) as not due to him, and therefore he would have no right of forfeiture in respect of them.

[69]I accept Mr Bates’s submission that compliance with a mandatory statutory provision on the part of a landlord cannot be treated as an unequivocal affirmation of the continuing existence of the lease for the purposes of the law of waiver in circumstances where this is required in order to comply with a statutory provision. Therefore, I do not accept Mr Morris’s submission that any right of forfeiture has been waived.

[70]The next matter I have to decide relates to the application for relief from forfeiture. Mr Morris raises a preliminary objection that this is not properly the subject of the defendant’s summary judgment application. He points to the application notice, which does not in terms do more than state that this is an application for strike out and, strictly in the alternative, for summary judgment. There is expressly no attached draft of any order for which the defendant is applying. Mr Morris therefore goes to the terms of Mr Milner’s supporting witness statement, and he points to the fact that it omits any reference to summary judgment being sought simply on the application for relief from forfeiture. Mr Morris refers, in particular, to the summary at paragraphs 71 to 76, all of which focuses upon the right of forfeiture, and says nothing about the alternative claim for relief.

[71]The thrust of Mr Bates’s submission is founded upon the decision of the Court of Appeal, delivered by David Richards LJ, in Gibbs v Lakeside Developments Ltd

[2018] EWCA Civ 2874

, reported at

[2019] 4 WLR 6

. Mr Bates places particular reliance upon observations of Nicholls LJ in a case called Billson (which was subsequently reversed on appeal to the House of Lords) albeit Nicholls LJ had dissented in the Court of Appeal. At paragraph 52 of his judgment in Gibbs v Lakeside Developments, David Richards LJ quotes Nicholls LJ’s conclusion in Billson in the following terms:

“The concurrent equitable jurisdiction can only be invoked by those who apply with reasonable promptitude. What is reasonable will depend on all the circumstances, having due regard to the statutory time limits. In the exercise of its jurisdiction courts of equity should apply, by analogy, the statutory time limits … but not with a strictness which in the circumstances would lead to a result Parliament could never have intended.”

[72]Mr Bates objects that nowhere in the particulars of claim, or in the later reply and defence to counterclaim, is there any plea directed to the issue of reasonable promptitude. The forfeiture took place on 24 January 2025. The claim form was not issued until 12 September 2025, more than six months later. It is for that reason, as the claimant expressly recognises in the particulars of claim, that the claim has to be brought in the High Court, rather than the County Court, for want of jurisdiction in the latter venue. In those circumstances, Mr Bates admits that the claimant needs properly to plead a basis founded on reasonable promptitude to get its claim for relief off the ground.

[73]I accept that there is force in that submission; but in the particulars of claim, at paragraph 37(4), the claimant pleads that it had no knowledge of the re-entry until around 29 August 2025. That plea is verified by a statement of truth, signed by Mr Mirza, as director of the claimant company.

[74]In light of that, I would not accede to any application to strike out the claim for relief from forfeiture for want of jurisdiction. It may be that the matter should be the subject of further pleading; but it is a matter sufficiently raised on the face of the particulars of claim, and does not justify striking out the claim for relief from forfeiture. The promptitude of the application for relief, which goes to the issue of jurisdiction, as well as the issue of discretionary relief, will have to be the subject-matter of evidence at trial.

[75]A number of detailed objections have been raised by the claimant, in its first application notice, to certain paragraphs of the defence and to the counterclaim. It does seem to me that certain of those objections have force. In particular, I do not consider that it is appropriate for the claimant to have pleaded, in paragraph 4.3, that the claimant is put to strict proof that, as at 24 January 2025, the lease was capable of being enforced, and had not previously been surrendered by operation of law or otherwise rendered unenforceable. That is not a matter for putting the claimant to strict proof. If the defendant wishes to raise any positive case of surrender, then it should do so in proper form.

[76]Equally, insofar as the defendant seeks to rely upon the curiously-worded clause 8 of the lease, the buy-back provisions in favour of the defendant at nil consideration, which on their face appear to impose no positive obligation on the claimant as tenant or upon the provisions of Schedule 4 to the lease, then the defendant should be pleading a full case on those matters. However, I agree with Mr Bates that those are properly matters that, if they are to be pursued at all, should be the subject of an opportunity for the defendant to amend its pleading, rather than for that pleading to be struck out now. What I would do is to simply adjourn that part of the application to a further hearing, having given the defendant 28 days first to amend its existing defence and counterclaim. So I would not make any order on that particular application today. I would simply stand it over to the future, having given the defendant 28 days to put forward any amendments, or to abandon any aspects of the defence or counterclaim the subject of that aspect of Mr Morris’s application.

[77]That concludes this extemporary judgment. ---------------