To qualify for enfranchisement, property must be appurtenant to flats or must be shared in the sense of being available to tenants for physical – and not just visual – use

Tenants exercising rights of collective enfranchisement under the Leasehold Reform Housing and Urban Development Act 1993 are entitled to purchase the freehold of their building and any common parts. However, landlords may choose to grant rights over common parts that are equivalent to the rights enjoyed by the tenants under their leases, or to offer alternative land over which such rights will be granted, rather than transfer the freehold of the common areas. In Cutter v Pry Ltd [2014] UKUT 215 (LC); [2014] PLSCS 175, the Upper Tribunal had to consider whether the tenants were entitled to acquire access ways, car parking spaces and communal gardens that served two separate buildings. The legislation applies to appurtenant property demised to qualifying tenants, as well as to property that they are entitled to use in common with the occupiers of other premises – but the landlord argued that the tenants were not entitled to acquire any of the areas in dispute. The tenants accepted that the parking spaces did not form part of their demise, which meant that they were not entitled to acquire them as property that was “appurtenant” to their flats. Consequently, they needed to show that they were entitled to use the parking spaces in common with others. Their leases gave them the right to use the spaces that were specifically allocated to them, but they argued that the spaces formed a “common pool”. The judge disagreed; the tenants had exclusive use of the spaces allocated to them and did not have to share them with anyone else. The concept of allocated parking is the antithesis of property that is used in common. Consequently, the parking spaces were not liable to enfranchisement. The tenants’ attempt to acquire the communal garden also fell by the wayside. The lawns were ornamental and, although the cost of their maintenance was included in the service charge, the tenants were not entitled to have access to, or to use, the garden. Indeed, their leases expressly prohibited them from doing so. The tenants tried to persuade the tribunal that the garden created a common visual amenity, or aesthetic environment for them all, but the judge decided that looking at or enjoying a view of a garden does not equate to using it. Consequently, the garden could not possibly qualify as property that the tenants were entitled to enfranchise. The landlord had rejected the tenants’ claim to acquire the access ways, without expressly offering rights of way instead, but argued that the legislation does not expressly prevent the Leasehold Valuation Tribunal from allowing rights to be offered in lieu. The judge accepted the landlord’s argument and ruled that the Leasehold Valuation Tribunal has a discretion to determine the terms of acquisition, upon which there is no statutory constraint in such cases. The case illustrates some of the practical difficulties that can arise in the course of the enfranchisement process, especially where a scheme comprises several blocks of flats with shared parking and other amenities, each of which may be enjoyed on different terms.  Allyson Colby is a property law consultant