[2024] UKUT 335 (LC)

If Ms O’Connor was a qualifying tenant, did failure to serve a notice of invitation to participate invalidate the claim notice?

As we have seen, section 78 states that an RTM company “must give” a notice of invitation to participate to all qualify tenants. Section 79(2) then says:

“The claim notice may not be given unless each person required to be given a notice of invitation to participate has been given such a notice at least 14 days before.”

The second issue in the appeal is whether section 79(2) is the end of the matter. Is it as the appellant says a clear statement of Parliament’s intention, so that failure to serve on any qualifying tenant a notice of invitation to participate will invalidate the notice as the Tribunal held in Avon Ground Rents Limited v Canary Gateway (Block A) RTM Company Limited [2020] UKUT 358 (LC) so that the RTM company cannot acquire the right to manage without starting the process again? Could Canary Gateway be distinguished or might it have been wrongly decided, as the respondent argued at the hearing? Or might the position now have changed in the light of A1 (Sunderland) as the respondent argued after the hearing?

I take the view that the second question in the appeal is to be determined in the light of the Supreme Court’s decision in A1 (Sunderland). In order to explain that I have to go through the history of the caselaw relating to procedural defects in the acquisition of the right to manage, and in particular to failure to give notices to those to whom the statute says they are to be given; in other words, failure to comply with section 79(2) and failure to give claim notices to all those within section 79(6).