Kensington Court, 16-36 South Road, Luton LU1 3UD CAM/00KA/LRM/2023/0020

FIRST-TIER TRIBUNAL
PROPERTY CHAMBER (RESIDENTIAL PROPERTY)
Case No CAM/00KA/LRM/2023/0020
Between
Kensington Court RTM Company LimitedApplicant1.J C Gill Developments Ltd 2.Assethold LimitedRespondent
Before
Judge WayteThe Leasehold Advice Centre for the Applicantrespondent only) Application in relation to the denial for the RespondentDate 10 September 2024Property: Road, Luton LU1 3UD Kensington Court RTM CompanyType of application: of the Right to Manage

DECISION

(1) The tribunal determines that the applicant was on the relevant date entitled to acquire the right to manage the relevant premises pursuant to section 84(5)(a) of the Commonhold and Leasehold Reform Act 2002, and the applicant will acquire such right three months after this determination becomes final.(2) The tribunal also orders the second respondent to pay the applicant £100 in respect of their tribunal fees. 2 The application[1]This was an application under section 84(3) of the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”) for a determination that, on the relevant date, Regent Street RTM Company Ltd was entitled to acquire the Right to Manage (“RTM”) premises known as Kensington Court, 16-36 South Road, Luton Lu1 3UD.[2]The application named the first respondent as the landlord but indicated that the second respondent had purchased the freehold. I joined Assethold to the proceedings at their request, not least as the tribunal’s jurisdiction depends on their being a valid counter notice and the first respondent has neither replied to the claim notices or these proceedings.[3]The application also involves two claim notices. The first was dated 24 July 2023 and was objected to by Assethold on various grounds, including two errors on the face of the notice, being an incorrect post code for the first respondent and the wrong company number given for the RTM company (13375928 as opposed to 14828640).[4]The applicant accepted that this error rendered the original claim notice invalid and therefore served a further claim notice dated 29 September 2023. Assethold also objected to this notice, this time on the sole basis that at the date the claim notice was given an earlier claim notice remained in force.[5]The application was dated 24 November 2023. Directions were issued on 29 July 2024 for a paper determination in the absence of a request for a hearing. No such request was received. Both active parties have submitted statements of case as summarised below. The second respondent’s case[6]The second respondent’s statement of case is dated 19 August 2024, their argument concerns the interpretation of sections 81(3) and (4) of the 2002 Act, which read: (3) Where any premises have been specified in a claim notice, no subsequent claim notice which specifies:-(a) the premises or(b) any premises containing or contained in the premises may be given so long as the earlier claim notice continues in force. (4) Where a claim notice is given by a RTM company it continues in force from the relevant date until the right to manage is acquired by the company unless it has previously:- 3 (a) been withdrawn or deemed to be withdrawn by virtue of any provision of this Chapter, or (b) ceased to have effect by reason of any other provision of this Chapter.[7]The second respondent accepts that there are two ways of reading these provisions: namely as limited to cases where there is a valid claim form or to cases where any claim notice is given. They argue that the correct approach is the latter, for two primary reasons.[8]The first reason is that the pre-legislative material refers to withdrawing a claim notice by serving a notice of withdrawal or being deemed withdrawn in the event of a failure to apply to the tribunal within two months of receipt of a valid counter-notice. There is no reference to a valid claim notice by contrast with the reference to a valid counter-notice.[9]The second reason given is that interpreting the provisions narrowly would be contrary to Parliament’s intention, which they argue was that a claim notice which does not comply with the 2002 Act has continuing validity unless and until the tribunal holds otherwise or it is withdrawn under section 86 or 87 of the 2002 Act. Reference is made to the Upper Tribunal decision of Plintal SA v 36-48 Edgewood Drive RTM Company Ltd (LRX.16/2007), a case dealing the costs of a RTM application, where George Bartlett QC made that observation.[10]The second respondent asserts that the Upper Tribunal decision in Sinclair Gardens Investments (Kensington) Ltd v Poets Chase Freeholds Co Ltd [2007] EWHC 1776 should not be followed as it concerns a different statutory scheme relating to collective enfranchisement, where there is an inhibition on giving a further notice for a year following withdrawal or deemed withdrawal of a claim notice. There is no such detriment in RTM cases and therefore no detriment to the tenants in construing the 2002 Act strictly.[11]In the circumstances, as there was nothing which could be interpreted as withdrawal of the first claim notice pursuant to the provisions of the 2002 Act, the second claim notice was of no effect and the application must fail. The applicant’s case[12]In response, the applicant argues that the first claim notice did not need to be withdrawn as it was defective on its face and therefore invalid and of no effect. Reliance is placed on the Poets Chase case and Alleyn Court RTM Company Ltd v Hamdan [2012] UKUT 74 (LC) where Judge Walden-Smith drew a distinction between claim notices which are defective on their face (and hence invalid and of no effect) and failures to follow the mandatory procedure under the 2002 Act which do not render the claim notice ineffective. 4[13]The applicant also argues that having asserted in its first counternotice that the first claim notice was invalid, it was estopped from setting up that notice as a bar to the service of a second notice.[14]Their alternative argument was that if the first claim notice remained valid, despite the error on its face, since the second respondent only became the registered proprietor on the freehold on 11 June 2024, it was not entitled to serve a counter notice and therefore the applicant had already acquired the RTM as the first respondent had not responded at all. The tribunal’s decision and reasons[15]The serious error in this case made on the first claim notice was to quote a completely incorrect company registration number, that of the Prince of Wales RTM Company Ltd. The applicant accepted that this invalidated the notice and made that point in its letter serving the second notice. The question is whether the applicant should have formally withdrawn that notice before serving the second one.[16]This was the same issue addressed by the Upper Tribunal in Avon Freeholds Ltd v Regents Court RTM Co Ltd [2013] UKUT 213. The President, Sir Keith Lindblom, held that given the similarity in the language between the 1993 and 2002 Acts, Poets Chase was of equal application to RTM claim notices. There was nothing in Plintal SA to undermine that conclusion. Plintal was authority for the proposition that an invalid claim notice could still trigger a costs application by the landlord while having no “continuing force” as a valid claim notice which triggered the RTM. Where the first claim notice was clearly invalid, there was no bar to a second claim notice being served, despite the wording of section 81(3) of the 2002 Act.[17]In this case, the second respondent has not resiled from their previous objection to the notice on the basis of the error in relation to the company registration number (and others). Although it claims that Avon Freeholds is “wrong”, Upper Tribunal decisions are of course binding on this tribunal. I also reject the idea that a “bright line” should be drawn between the 1993 and 2002 Acts. There are many examples of the almost identical wording leading to the application of cases across both jurisdictions, of which the Court of Appeal decision in Assethold Ltd v Eveline Rd RTM Co Ltd [2024] EWCA Vic 187 is the latest example.[18]For the avoidance of doubt, I accept that the original claim notice is invalid on its face. Although there is a saving provision for inaccuracies in the particulars in section 81(1), Assethold Ltd v 15 Younge Park RTM Co Ltd [2011] UKUT 379 is authority that a serious error in respect of the company details can invalidate a notice. Here, the error was to give the registered number of a different RTM company entirely, which I consider is indistinguishable from the wrong company address in Younge Park. 5[19]In the circumstances, I agree with the applicant that as their first claim notice was invalid on its face, there was no requirement to formally withdraw it before serving the second notice. As that was the sole ground of objection raised by the second respondent to the second notice, it follows that the applicant is entitled to the RTM. It also follows that there is no need to consider the applicant’s alternative arguments.[20]In accordance with section 90(4), the acquisition date is the date three months after this determination becomes final. According to section 84(7): “(7) A determination on an application 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.”[20]In the light of the clear Upper Tribunal authorities in support of the applicant’s case I also consider it is appropriate to exercise the tribunal’s discretion under Rule 13(2) of the Tribunal Procedure (First- tier Tribunal) (Property Chamber) Rules 2013 to order the second respondent to reimburse the application fee of £100. Name: Judge Wayte Date: 10 September 2024 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 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. 6 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). --- decision_2.pdf --- © CROWN COPYRIGHT FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference HMCTS Code : CAM/00KA/LRM/2023/0020 P: PAPER REMOTE Property : Kensington Court, 16-36 South Road, Luton LU1 3UD Applicant : Kensington Court RTM Company Limited Representative : The Leasehold Advice Centre Respondent : 1.J C Gill Developments Ltd 2.Assethold Limited Representative : Scott Cohen Solicitors (second respondent only) Type of application : Application in relation to the denial of the Right to Manage Tribunal member(s) : Judge Wayte Date : 7 February 2025 DECISION ON REVIEW(1) The tribunal’s decision dated 10 September 2024 is set aside.(2) The application is struck out for want of jurisdiction as the second respondent was not entitled to serve a counter notice.(3) The tribunal orders the second respondent to pay the applicant £100 in respect of their tribunal fees. 2 Background[1]The background to this decision on review is set out in the original decision dated 10 September 2024.[2]There are two respondents, the original freeholder and the current freeholder (“Assethold”). For some unknown reason there was a long delay in registering that change of ownership following the transfer dated 31 March 2023. Assethold did not become the registered proprietor until 11 June 2024.[3]On 24 July 2023 the Applicant RTM Co (the “RTM Co”) gave their first Notice of Claim. A copy was sent to Assethold who gave a counternotice objecting to the notice on various grounds, including two errors on the face of the notice. The RTM Co accepted the notice was invalid due to one of those errors in particular (the wrong company registration number) and therefore served a further claim notice dated 29 September 2023. Assethold replied with another counter notice, this time on the sole basis that at the date the second notice was given, an earlier claim notice remained in force, as there had been no formal withdrawal of that notice by the RTM Co. The RTM Co applied to the tribunal on 24 November 2023 for a determination of their RTM and the tribunal joined Assethold as Second Respondent at their request.[4]On 10 September 2024 the tribunal determined that the Applicant was entitled to acquire the right to manage the premises known as Kensington Court, 16-36 South Road, Luton Lu1 3UD pursuant to section 84(5)(a) of the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”). The tribunal relied on a line of authorities which supported the RTM Co’s claim that they were entitled to treat their first notice as invalid on its face and therefore did not need to withdraw it before serving the second one. It noted the Applicant’s alternative argument that (if the first claim notice remained valid despite the error(s) on its face) the Applicant had already acquired the RTM because only the First Respondent had been entitled to give a counter notice at the relevant time.[5]On 7 October 2024, Assethold applied for permission to appeal, based on the recent decision of the Supreme Court in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27 which had not been considered by the parties or the tribunal in reaching its decision. The Supreme Court has now set out a very different approach to assessing the consequence of non-compliance with statutory requirements from the previous line of authority relied on by the tribunal.[6]In those circumstances, the tribunal decided to exercise its power of review under rule 55 (see below). In accordance with that rule the tribunal wrote to the parties on 25 November 2024 to ask for representations in the light of A1 Properties (Sunderland), to include 3 any question as to the validity of the counter-notice given by Assethold to the first claim notice.[7]Before those representations were due, the Court of Appeal published its decision in 159-167 Prince of Wales Road RTM Co v Assethold Ltd [2024] EWCA Civ 1544, in respect of an application for costs by Assethold following the dismissal of the RTM application by consent. The court decided that as Assethold was not the registered proprietor at the time, it was not a landlord under the 2002 Act and therefore the RTM company in that case had no liability for its costs. Lady Justice Falk also observed at [63] that in those circumstances, Assethold did not fall within the category of persons entitled to serve a counter notice. The Applicant’s case[8]In the light of the Prince of Wales case, the RTM Co submitted that “the shortest and simplest way of disposing with these proceedings” was for the tribunal to hold that as Assethold was not entitled to give a counternotice and the party so entitled did not do so (the First Respondent J C Gill Developments Ltd), this was a “no counter-notice case”. The RTM Co therefore acquired the RTM on the date specified in the notice of claim, which would have been 9 February 2024 in the case of the second notice and 11 December 2023 in the case of the first one. The Second Respondent’s case[9]Assethold confirmed that there was to be no appeal by them of the decision in the Prince of Wales case. Their representations focused on the jurisdiction of the tribunal. They maintained that there was no jurisdiction in respect of the first notice as there had been no application in that regard. If the tribunal agreed it had jurisdiction in respect of the second notice, the application should be dismissed on the basis of their second counter notice: section 80(3) of the 2002 Act stating that no subsequent claim notice may be given while an earlier claim notice remains in force. The effect of A1 (Sunderland) is that the first claim notice cannot be treated as void and therefore disregarded by the RTM Co without formal notice of withdrawal.[10]Assethold further argued that the RTM Co were estopped from denying the invalidity of their first notice or the jurisdiction of the tribunal. A similar argument upheld by the Upper Tribunal had been dismissed by the Court of Appeal in the Prince of Wales case. Here, Assethold relied on the express acknowledgement by the RTM Co of their position as an “equitable landlord” in the claim notices; the issuing of proceedings to include them as second respondent; the RTM Co’s election to treat the first claim notice as invalid and the lack of challenge to the tribunal’s jurisdiction to date.[11]In the circumstances the tribunal should determine that the Applicant had not acquired the Right to Manage and dismiss the application. The tribunal’s decision and reasons 4[12]The tribunal’s review power is governed by section 9 of the Tribunals, Courts and Enforcement Act 2007 and rule 55 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. Rule 55 is clear that the tribunal may only undertake a review on an application for permission to appeal where is it satisfied that a ground of appeal is likely to be successful. Section 9 of the 2007 Act makes it clear that the tribunal may set a decision aside when exercising its power of review and then it must either re-decide the matter or refer it to the Upper Tribunal.[13]As set out above, the Supreme Court decision in A1 Tudor (Sunderland) cited by Assethold in their application for permission to appeal the decision dated 10 September 2024 makes it clear that an appeal is likely to be successful. In particular, the errors in the first claim notice by the RTM Co can no longer be sufficient to render it invalid on its face and therefore that decision must be set aside.[14]However, the subsequent decision of the Court of Appeal in the Prince of Wales case also makes it clear that Assethold, due to the failure to register the transfer of the freehold until 11 June 2024, were not entitled to the claim notice under section 79(6) or to serve a counter notice under section 84(1) in respect of either the first or the second claim notice [63, as noted above]. They did not have a legal (as opposed to a claimed equitable) interest, so they cannot be the “landlord” under section 79(6)(a) [28]. Nor are they a manager or other relevant party under section 79(6)(b) or (c).[15]Since the registered proprietor of the freehold at the relevant time (the only person given the claim notice under section 79(6)) did not serve any counter-notices, there can be “no dispute about entitlement” and by section 90 of the 2002 Act the Applicant acquired the right to manage on the date specified in that notice, 11 December 2023, as the Applicant argued (originally in the alternative, before A1 and Prince of Wales).[16]However, the jurisdiction of this tribunal under section 84 of the 2002 Act depends on the service of one or more counter notices by a person given a claim notice “under section 79(6)” objecting to the RTM. In the circumstances and under rule 9(2) of the 2013 Rules, the tribunal must strike out the proceedings.[17]Assethold appear to continue to deny the RTM, despite being on the losing side in the Prince of Wales case.[20]Assethold were joined to these proceedings by their own application, not at the behest of the RTM Co and, as in the Prince of Wales case have provided no explanation for the extraordinary delay in registering their title, which has led to much of the confusion in this case. In those circumstances the tribunal considers it is appropriate to exercise the tribunal’s discretion under Rule 13(2) of the Tribunal Procedure (First- 5 tier Tribunal) (Property Chamber) Rules 2013 to order them to reimburse the application fee of £100. Name: Judge Wayte Date: 7 February 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 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). --- decision_3.pdf --- © CROWN COPYRIGHT FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : CAM/00KA/LRM/2023/0020 HMCTS code : P:PAPERREMOTE Property : Kensington Court, 16-36 South Road, Luton LU1 3UD Applicant : Kensington Court RTM Company Limited Representative : The Leasehold Advice Centre Respondent : 1.J.C. Gill Developments Ltd 2.Assethold Limited Type of application : Application for permission to appeal by the Second Respondent Tribunal members : Regional Judge Wayte Date of Decision : 21 August 2025 DECISION 2 Decision[1]The Tribunal has considered the Second Respondent’s request for permission to appeal to the Upper Tribunal Lands Chamber dated 8 August 2025 and determines that:a. It will not review its Decision; andb. Permission be refused for appeal to the Upper Tribunal Lands Chamber.[2]The Second Respondent may make a further application for permission to appeal directly to the Upper Tribunal (Lands Chamber). Any such application must be made no later than 14 days after the date on which the First-tier Tribunal sent notice of this refusal to the party applying for permission to appeal.[3]Where possible, the Second Respondent should make any further application for permission to appeal online using the Upper Tribunal’s online document filing system, called CE-File. This will enable the Upper Tribunal to deal with it more efficiently and will enable the parties to follow the progress of the application and submit any additional documents quickly and easily.[4]Information about how to register to use CE-File can be found by going to the following web address: https://www.judiciary.uk/wp-content/uploads/2021/07/Practice-Note-on- CE-filing-Lands-Chamber-17.6.21_.pdf[5]Alternatively, it is possible to submit an application for permission to appeal by email to: Lands@justice.gov.uk.[6]The Upper Tribunal can also be contacted by post or by telephone at: Upper Tribunal (Lands Chamber), 5th Floor, Rolls Building, 7 Rolls Buildings, Fetter Lane, London EC4A 1NL (Tel: 020 7612 9710).

REASONS

[7]The relevant provisions in respect of appeals are set out in the Practice Directions of the Upper Tribunal (Lands Chamber) dated 2 January 2024 (“the Practice Directions”).[8]Paragraph 11.14 of the Practice Directions provides that permission to appeal will be granted if the Tribunal considers that the proposed appeal has a realistic prospect of success, unless the sum or issue involved is so modest or unimportant that an appeal would be disproportionate. Permission to appeal may also be granted if the Tribunal considers there is some other good reason for an appeal. 3[9]On 4 August 2025 the Second Respondent applied for permission to appeal the tribunal’s decision which was sent to the parties on 7 February 2025. On 7 August 2025 the tribunal pointed out that the time to appeal had long since passed and that no application for an extension of time had been made, as required by rule 52(4) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (“the 2013 Rules”).[10]A Notice of Application was received on 20 August 2025. The second respondent gave the reasons for their request as follows: “there was a delay in the decision being sent to ourselves and confusion as to whether this was being dealt with by the solicitor or ourselves. There are serious legal grounds in the appeal that should be considered.”[11]The application for a determination of the right to manage was made back in September 2023. On 18 January 2024, Scott Cohen solicitors made an application for Assethold Ltd to be joined as second respondent, identifying themselves as that company’s representative. Scott Cohen continued to correspond on the second respondent’s behalf until 27 January 2025.[12]The decision on review, made following an earlier application for permission to appeal an earlier decision by Scott Cohen, was sent to the second respondent’s representative on 7 February 2025. Nothing further was received from Scott Cohen until 8 August 2025 when it replied to a copy letter from the tribunal set out in paragraph 9 above to state that it was not instructed in the proceedings. That was the first such indication to the tribunal that Scott Cohen were no longer the second respondent’s representative.[13]For completeness, that decision stated that the tribunal had no jurisdiction to consider the application as there had been no valid counternotice served by the landlord. This property is one of several where Assethold Ltd purchased the freehold but failed to register its title for many months afterwards. The initial decision was set aside at their solicitor’s behest to take into account 159- 167 Prince of Wales Road RTM Co v Assethold Ltd [2024] EWCA Civ 1544. In that case, the Court of Appeal held that Assethold was not the landlord as defined in the 2002 Act in these circumstances.[14]Rule 52 requires the tribunal to be satisfied that there is a good reason for any delay. Both Assethold Ltd and Scott Cohen are extremely experienced in this jurisdiction, with that firm acting as their solicitors for many years. Rule 14 of the 2013 Rules are clear that once a representative has been appointed, the tribunal may assume that the representative is and remains authorised until receiving written notification to the contrary. That notice was received for the first time on 8 August 2025 and in the circumstances it was entirely appropriate for the tribunal to send the decision to Scott Cohen as opposed to Assethold. Any confusion is a matter between the second respondent and their former advisers. In any event, in the light of the Court of Appeal’s decision, the second respondent has no standing in this case. 4[15]The grounds for the application to extend time do not amount to a good reason for the delay and in the circumstances the tribunal must not admit the application. Name: Regional Judge Wayte Date: 21 August 2025