CA-2024-002828 - [2025] EWCA Civ 1016

The hearing before the Lands Chamber of the Upper Tribunal (“UT”) (UT Judge Elizabeth Cooke, “the Judge”) took place on 6 June 2024. The UT had before it the appeal of Avon from the FTT’s finding that the failure to give a participation notice to Ms O’Connor did not invalidate the claim notice, and the cross-appeal of the respondent against the finding that the tenant of Flat 17 was a qualifying tenant. Mr Bates KC leading Ms Sophie Gibson appeared for Avon, and Mr Jacob again appeared for the respondent. With the agreement of the parties, the Judge delayed the publication of her decision until after the Supreme Court had delivered its decision in the case of A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, [2024] 3 WLR 601 (“A1 Properties”), in which the appeal had been heard on 8 February 2024 and judgment was pending. In the event, the Supreme Court gave its judgment on 16 August 2024, and the parties exchanged written submissions on its impact. The decision of the UT (“the UT Decision”) was then promulgated on 28 October 2024: [2024] UKUT 335 (LC).

The UT Decision is conspicuously clear and well-written, reflecting the Judge’s expertise in land law and her experience as a Law Commissioner. I will of course need to consider aspects of her reasoning in detail in this judgment, but this should not detract from the profit and pleasure to be derived from reading the UT Decision in its entirety. At [1] she correctly identified the two “interesting questions” raised by the appeals as:

“First, is the lessee under a newly granted long lease, not yet registered at HM Land Registry and therefore effective in equity but not at law, a qualifying tenant? Second, if so, does the failure to serve such a lessee with a notice of invitation to participate invalidate a claim notice served by the RTM company?”

In agreement with the FTT, the UT answered the first question in the affirmative; but the UT went on to answer the second question in the negative, albeit for reasons different from those given by the FTT and strongly influenced by the Judge’s understanding of the analysis and conclusions of the Supreme Court in A1 Properties. The ultimate conclusion of the UT was, therefore, that the claim notice served by the respondent was valid. As the Judge said at [146]:

“Ms O’Connor was a qualifying tenant, but the acquisition of the right to manage was not prevented by the failure to give her a notice of invitation to participate.”

Avon now appeals to this court on the second question, with permission for a second appeal given by the UT. In granting permission, the Judge said that she had no hesitation in doing so in light of the importance of the point in issue and the difficulty in interpreting paragraph 69 of the decision of the Supreme Court in A1 Properties.

By a respondent’s notice, the first question is also before this court for determination. The respondent asks us to hold that “only a tenant with a legal (as opposed to equitable) tenancy can be a qualifying tenant”.