[2024] UKUT 2 (LC)

As the appellant says, the FTT misconstrued section 60 of the 1993 Act. The effect of the section is, as the FTT said, that the “the tenant by whom the notice is given” is liable for the landlord’s costs. But the effect of section 43(1) is that when Ms Jolleys took the benefit of the section 42 notice she also took on the liabilities that went with it. Therefore section 43(2) provides that “references in this Chapter to … the tenant shall, in so far as the context permits, include their assigns”, and that means that the reference to the tenant in section 60(1) includes the tenant’s assignee.

The FTT was led astray by the closing words of section 60(1), which it appears to have thought meant that the assignee would take on this liability only if there was an express stipulation to that effect in the transfer of the flat to Ms Jolleys. That is not what it means; it is an exception to the provision that precedes it, and its effect is to except certain costs from the tenant’s liability. What those costs are is a bit obscure, but footnote 220 to paragraph 28-32 of Hague on Leasehold Enfranchisement expresses the view (about the same provision in the context of collective enfranchisement in section 33 of the 1993 Act) that the reference is to certain unusual costs which s.48 of the Law of Property Act 1925 provides that a purchaser cannot be required to pay to a vendor, for example the cost of a vesting deed under the Settled Land Act 1925. What the closing words clearly do not mean is that the section 60(1) liability arises, for an assignee, only where the transfer of the flat expressly requires it.

The provision in the deed of assignment, quoted at paragraph 6 above, is not relevant to the issue in the appeal since, as the FTT correctly observed, it created only a liability to Mr Warburton. Ms Jolley’s liability to the appellant is created by the combination of sections 60 and 43. As I said above she has chosen not to participate in the appeal; in the FTT she argued that she had not been informed that she would be liable for any costs, but that is not relevant (and in any event as the FTT observed she was informed of her liability by the terms of the deed of assignment).