Cowthorpe Road 1-1A Freehold Ltd v Wahedally (as executor of Ahamadally)

Leasehold enfranchisement – Collective enfranchisement – Counter-notice – Long leaseholders of flats serving initial notice under section 13 of Leasehold Reform, Housing and Urban Development Act 1993 seeking to acquire freehold of property from landlord by collective enfranchisement – Landlord purporting to serve counter-notice under section 21 by email within time limit – Nominated purchaser receiving counter-notice by post after expiry of time limit – Nominated purchaser applying for vesting order in terms of initial notice – Whether counter‑notice by email being valid – Application granted The defendant was the sole registered proprietor of the freehold of a property at 1 and 1A Calthorpe Road, London SW8. The self‑contained building comprised two flats held by qualifying tenants under long leases. The tenants served an initial notice seeking to exercise their right of collective enfranchisement under section 13 of the Leasehold Reform Housing and Urban Development Act 1993 and appointed the claimant as the nominated purchaser. The proposed purchase price was £41,550. The defendant purported to serve a counter‑notice via his solicitors. Paragraph 10 of the notice stated that the address at which notices might be given to the nominee purchaser was c/o Comptons Solicitors LLP, in London. The date for responding to the notice by giving a counter notice under section 21 of the 1993 Act was 15 June 2013, which was a Saturday. The covering letter with the notice stated “We do not accept service by email”. The defendant purported to serve a counter-notice by attaching a PDF file containing a scanned copy of the signed counter‑notice to an email sent on Friday 14 June, by placing it through the solicitors’ letter box on Saturday 15 June and by first class-post. It was not disputed that the counter-notice sent by post was not received until Monday 17 June. The claimant applied for a vesting order in the terms proposed in the initial notice on the grounds that the defendant had failed to serve a counter-notice in time. Held: The application was granted. (1) Section 99 of the 1993 Act required the notice to be given in writing. The fact that it suggested that the document might be sent by post indicated that a hard as opposed to digital version of the document was contemplated. The section 13 notice had to be signed. It was not possible in the ordinary sense of the word to sign an electronic document with an original signature. The requirement for signature was contained in section 99(5)(a) and, given the date at which the notice was signed, the amendments to the Act which altered the requirements for personal service by the individual participating tenants had not altered the requirement in respect of the particular notice in this case which pre‑dated those changes. The tenant could not sign the electronic document within the terms anticipated by section 99(5)(a) and the notice in this case which contained the original signature was in the usual way sent by post to the landlord. Given that the section 13 requirements were such, by parity of reasoning, albeit that the landlord’s notice did not have quite the same importance as the tenant’s, the landlord’s counter‑notice had itself to be a hard copy document served in top copy form rather than electronically. The consequences of service or non‑service of both section 13 and, in this case more importantly, section 21 counter‑notices, was crucial to the proper operation of the Act. Strict compliance with the provisions was a requirement. Therefore, an email did not amount to writing for the purposes of the 1993 Act and service of what was not a top copy could not comply with the Act. There was a separate argument that the copy rather than the original was not compliance with the Act. Service of a copy, whether by fax or by PDF, could not be good service of a notice in accordance with the Act: Burman v Mount Cook Land Ltd [2001] 1 EGLR 61 applied. (2) The section 13 notice stated in paragraph 10 that notices might be given to the claimant’s solicitors at the address contained in that notice, the specific address given was a postal address or a physical address rather than an email address and the covering letter expressly provided that service by email would not be accepted. The authority of Comptons as the agents of the claimant was specifically circumscribed by the covering letter. The participating tenants and the claimant were authorising Comptons and holding them out to the defendant as authorized only to accept service in physical form at the address contained in paragraph 10. They had no authority to accept service in any other way. Therefore, purported service by email could not have been valid service. Because of the importance attached to the time limits contained within the 1993 Act for service of documents, the dates for service of documents and the form of service of documents were crucial parts of the process. (3) Where a party specifically stated that service might take place at a certain address and went on to state that the service might take place by a specific date, where the server in fact put the document through the box at that address before the expiry of that date, the risk that the document would not be received by the intended recipient because they happened not to be there fell on the person who specified that method and date for service. Notwithstanding the common law rules therefore, in this case service of the counter‑notice at Comptons address on 15 June would have been good service.  However, there was not good service in this case or at least the defendant, who accepted that it had the burden of proving good service, could not overcome the necessary hurdles and discharge that burden. Accordingly, the only factual conclusion open to the court was that the original counter‑notice was in fact served on 17 June, two days out of time. (4) The court had no power to extend time for service of the counter‑notice however meritorious it might have been. Therefore, the counter‑notice was not validly served within the time specified pursuant to section 13(3)(g). Jonathan Upton (instructed by Comptons Solicitors) appeared for the claimant; Richard Carroll (instructed by Hanson Young Solicitors, of High Wycombe) appeared for the defendant. Eileen O’Grady, barrister Click here to read transcript: Cowthorpe Road 1-1A Freehold Ltd v Wahedally (as executor of Ahamadally)