Leasehold enfranchisement — Successive leases — Tenant’s notice failing to mention earlier lease — Whether inaccuracies invalidating notice — Whether tenancy qualifying as lease at low rent — Leasehold Reform Act 1967 — Judge holding tenant entitled to freehold — Appeal dismissed
The appellants were the freehold owners of a house and garden that the respondent held on two separate long leases dated April 1983, which superseded an earlier 1972 lease of the house. The respondent served notice of his wish, as the holder of a long lease at a low rent, to acquire the freehold, pursuant to the provisions of the Leasehold Reform Act 1967. The notice made no mention of the 1972 lease. The appellants maintained that the respondent was not entitled to the freehold, and sought a declaration to that effect. They contended that: (i) the notice was rendered invalid by the failure to refer to the 1972 lease, which was one of successive leases and therefore one of the instruments creating the tenancy for the purposes of the 1967 Act; and (ii) the lease was not at a “low rent”, within the definition set out in section 4A(1), because the aggregate amount of rent payable under the tenancy during the initial year exceeded two-thirds of the rateable value of the property on the relevant date. For the latter assertion, they relied upon certain provisions as to the rent payable in the first year of the 1983 leases.
The respondents argued that, inter alia: (i) the failure to refer to the 1972 lease was an “inaccuracy of the particulars” required by para 6(1)(b) of Schedule 3 to the 1967 Act and would be saved by para 6(3), which provided that such inaccuracies would not invalidate the notice, and (ii) when determining whether the lease was at a low rent, the relevant initial year was the first year of the 1972 lease. The judge held that the notice was valid and that the lease was at a low rent. The appellants appealed.
Held: The appeal was dismissed.
1. The notice was valid. The defects in the respondent’s notice were “inaccuracies in the particulars” required by para 6(1)(b) of Schedule 3 to the 1967 Act, so as to be saved by para 6(3). The respondent had made a proper attempt, albeit an inaccurate attempt, to meet the requirements of Schedule 3. The omitted information would have been known to the appellants as landlords; the failure to include it had led to no prejudice in their consideration of whether to admit or reject the claim for enfranchisement: Cresswell v Duke of Westminster [1985] 2 EGLR 151 and Speedwell Estates Ltd v Dalziel [2001] EWCA Civ 1277; [2002] 1 EGLR 55 considered.
2. By operation of section 3(3) and (6) of the 1967 Act, relating to successive tenancies, the relevant tenancy was a hypothetical single tenancy granted in December 1972 for a term commencing in September 1972. In relation to that single tenancy, the “relevant date”, for the purposes of section 4A(1), was either September or December 1972, and the “initial year” was the period of one year beginning with that date. It was not necessary to determine which month, because, whichever date were to be taken, the rent payable under the tenancy would be less than two-thirds of the rateable value at the relevant date. Accordingly, the tenancy was at a low rent.
Anthony Radevsky (instructed by Pemberton Greenish) appeared for the appellants; Simon Berry QC and Simon Burrell (instructed by Bircham Dyson Bell) appeared for the respondent.
Sally Dobson, barrister
