Tibber v Buckley & Anor

A reversioner claiming a leaseback under Part III of Schedule 9 to the Leasehold Reform Housing and Urban Development Act 1993 must identify the flat or unit claimed in the counter-notice. The reversioner need not set out every proposed lease term or departure from the Part IV provisions. Those matters may be negotiated and, if unresolved, determined by the leasehold valuation tribunal. The statutory entitlement is to the whole relevant flat or unit, subject to proof of its true extent and any applicable appurtenance requirements.

The freeholder of a building containing three flats appealed against the Upper Tribunal’s dismissal of her challenge to the terms of a leaseback required following collective enfranchisement by the long leaseholders. She sought a leaseback of the upper flat, including structural elements, parts of the common areas and rights supporting a proposed conversion into two flats.

The Upper Tribunal held that the counter-notice confined her to the premises and lease terms expressly specified in it. The central issues before the Court of Appeal were whether the counter-notice had to identify the full physical extent of the unit and every proposed departure from Part IV of Schedule 9, and what leaseback rights and terms were appropriate.

1. Appeal allowed in part. The leaseback was directed to include a right for Flat C to use the relevant part of the mezzanine landing for storage of one bicycle, and the user covenant was to refer to use as a residential flat or flats. The appeal was otherwise dismissed.
2. Under section 21(3)(a)(ii) of the Leasehold Reform Housing and Urban Development Act 1993, a reversioner must identify in the counter-notice the flat or other unit for which a Part III leaseback is sought. Ordinarily, a sufficiently clear identification will be enough; precise physical limits need not be stated where the nominee purchaser is left in no reasonable doubt as to the unit claimed. A dispute about the precise terms of the lease may be determined by the leasehold valuation tribunal under section 91(2)(b).
3. The counter-notice need not specify the proposed terms of the leaseback, including departures from the Part IV provisions. Those terms are for negotiation and, if agreement is not reached, determination by the tribunal. The Upper Tribunal’s contrary approach was rejected. The court followed the relevant principle in Cawthorne v Hamdan concerning the need to claim a leaseback in the counter-notice, while addressing a different question about the detail of the terms.
4. Paragraph 5 of Part III of Schedule 9 entitled the freeholder to a leaseback of the relevant whole flat or unit, but the evidence did not establish that the external walls, window frames, roof or roof structure formed part of Flat C. The tenancy agreement, which would ordinarily have been the starting point for identifying the demised premises, had not been produced. The mezzanine landing and front garden were not appurtenances within paragraph 1(2), because they had not been let with Flat C.
5. The evidence established an apparent existing right to store one bicycle on the mezzanine landing. That right was necessary for the reasonable enjoyment of Flat C and was to be included under paragraph 10 of Part IV and the operation of section 62 of the Law of Property Act 1925. The evidence did not justify a right to store bicycles in the front garden or more than two bins there.
6. The LVT was entitled to require the landlord to remain responsible for repair of the building’s structure and exterior, with Flat C contributing two-fifths of the relevant costs. The proposed wording allowing use as a residential flat or flats was reasonable, since otherwise a future subletting of part might be impeded.

1. Court of Appeal (Civil Division) — [2015] EWCA Civ 1294: appeal allowed in part; the leaseback was varied to include storage of one bicycle on the mezzanine landing and use as a residential flat or flats.
2. Upper Tribunal (Lands Chamber) — [2014] UKUT 0074 (LC): appeal from the LVT dismissed, on the basis that the counter-notice confined the freeholder to the proposals expressly stated in it.
3. Leasehold Valuation Tribunal for the London Rent Assessment Panel — decision dated 21 January 2012: determined the principal physical extent and terms of the leaseback, including the standard Part IV terms, rights over the common parts and front garden, and a two-fifths service-charge contribution.