Cadogan& Anor v Strauss

Under the Leasehold Reform Act 1967, an enfranchisement notice is not invalid merely because its particulars are incomplete or inaccurate. The question is whether it is a genuine attempt to state the statutory facts, or whether it fundamentally fails to provide required information. Successive and concurrent long tenancies of a house and appurtenant land are treated as a single hypothetical tenancy, using the relevant earliest commencement date. For the alternative low-rent test, the rent payable during that tenancy’s initial year is compared with two-thirds of the rateable value. Rent first payable under a later concurrent tenancy cannot be added.

The tenant occupied a house and garden under two leases granted in 1983 and served an enfranchisement notice in 1996 identifying those leases. The landlords later discovered that the house had previously been held under a long lease granted in 1972. They sought a declaration that the tenant was not entitled to acquire the freehold, arguing that the notice was invalid because it omitted the earlier lease and stated the wrong rent particulars.

HHJ Cotran dismissed the landlords’ claim and declared that the tenant was entitled to acquire the freehold. The landlords appealed, challenging the validity of the notice and contending that rent under the 1983 garden lease had to be added to rent under the 1972 house lease for the alternative low-rent test.

1. Appeal dismissed. The notice was valid. The appellants were ordered to pay £7,500 on account of costs, with further costs subject to detailed assessment. Permission to appeal was refused.
2. Paragraph 6(3) of Schedule 3 to the Leasehold Reform Act 1967 protects a notice containing an inaccuracy in required particulars. The court must distinguish an inaccurate but genuine attempt to provide the required information from a fundamental failure to provide it. The former is saved; the latter is not.
3. The statutory scheme requires the notice to identify the property with sufficient precision because it gives rise to a statutory contract capable of implementation under section 8. Other particulars primarily enable the landlord to decide whether to admit the claim. If the landlord disputes the claim, the tenant may establish the statutory conditions by reference to the true facts.
4. The approach in Cresswell v Duke of Westminster and Others [1985] 2 EGLR 151 and Speedwell Estates Limited and Another v Dalziel and Others [2002] 1 EGLR 55 supported the distinction. The omission of the 1972 lease was an incomplete and inaccurate attempt, not a failure to provide information. The landlord, as grantor of the earlier lease, could not show relevant prejudice.
5. Sections 3(3) and 3(6) required the house and garden interests to be treated as a single hypothetical tenancy. The house tenancy was treated as commencing in 1972, while the garden tenancy remained subject to its 1983 commencement date before the concurrent tenancies were consolidated for Part 1 purposes.
6. Under section 4A, the relevant inquiry was the rent payable under the relevant single tenancy during its initial year. It was unnecessary to decide whether the commencement date was 29 September or 5 December 1972, since the rent under the 1972 house lease was below two-thirds of the rateable value on either basis. The statute did not permit the later 1983 garden rent to be added.
7. Brooke LJ added that, absent legislative guidance, the court should not invent a rent attributable to the garden in 1972. Any lacuna in the statutory scheme was a matter for Parliament.

• Court of Appeal (Civil Division): Appeal from the order of HHJ Cotran dated 22 May 2003 dismissed unanimously.
• Shoreditch County Court: The landlords’ claim for a declaration that the tenant was not entitled to enfranchise was dismissed. The tenant received a declaration of entitlement to acquire the freehold pursuant to his notice dated 6 June 1996.