18 Langdale Road RTM Company Limited v Assethold Limited

A defect in a right-to-manage claim notice invalidates it only if, on the proper construction of the statutory scheme, the omitted information is of critical importance. The inquiry is not one of substantial compliance or of actual prejudice to the recipient. Relevant considerations include whether the information is expressly required by primary legislation, whether it is required only by subordinate legislation, and its function within the scheme.

The omission of a paragraph from prescribed notes concerning untraceable recipients did not invalidate a claim notice. The paragraph was unlikely to be needed, was required only through secondary legislation, and the remaining notes directed the recipient to the relevant statutory provisions.

The appellant RTM company served a claim notice seeking to acquire the right to manage a building containing two flats. The freeholder served a counter-notice, and the appellant applied to the First-tier Tribunal under Commonhold and Leasehold Reform Act 2002, section 84(3).

The First-tier Tribunal held that the absence of a signature did not invalidate the notice. It nevertheless held the notice invalid because it omitted one paragraph from the prescribed notes. That paragraph concerned the position where a person entitled to receive notice could not be found or identified.

The RTM company appealed. The issue was whether that limited omission from the prescribed notes invalidated the claim notice.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside. The Upper Tribunal substituted a decision that the claim notice was valid and that the appellant acquired the right to manage on the relevant date.

2. The acquisition of the right to manage concerns a statutory property right. Following Natt v Osman [2013] EWCA Civ 584 and Elim Court RTM Company Limited v Avon Freeholds Limited [2017] EWCA Civ 89, the question was whether the notice complied with the statute’s strict requirements as properly construed. It was not an inquiry into substantial compliance.

3. Whether an omission is fatal depends upon the importance of the information within the statutory scheme. Information of critical importance will generally be required. Information which is secondary or ancillary may not be. Relevant indicators include whether the information is specifically required by primary legislation or only by subordinate legislation. The court must not assess actual prejudice in the individual case, although generic prejudice may inform the construction.

4. The omitted paragraph did not invalidate this notice. It concerned an unusual situation and was unlikely to prejudice a recipient. There was no express statutory requirement to refer to the provisions governing untraceable landlords. The requirement to reproduce the paragraph arose through secondary legislation, and the otherwise complete notes referred the recipient to the Commonhold and Leasehold Reform Act 2002, where section 85 could readily be found.

5. Mill House RTM Company Limited v Triplerose Limited [2016] UKUT 80 (LC) was distinguished. In that case all prescribed notes had been omitted. Its observation that omission of a note with no possible application might not be fatal covered the present, limited omission. It was unnecessary to determine whether section 81(1) separately saved the notice.

• Upper Tribunal (Lands Chamber): allowed the appeal in [2022] UKUT 215 (LC), set aside the First-tier Tribunal’s decision, and substituted a determination that the claim notice was valid.
• First-tier Tribunal (Property Chamber): held that the claim notice was invalid because one paragraph of the prescribed notes had been omitted. Its citation was not stated in the judgment.