[2024] UKUT 335 (LC)

In the course of the appeal, and after the respondent had instructed counsel, something of a wrinkle appeared in terms of the facts that were before the FTT. Although Mr Joiner told the FTT the position as he understood it, and was himself unaware of the lease of flat 17, it turns out that one of the directors of the respondent, Ms Bellenie, was aware of Ms O’Connor’s presence in flat 17. Ms O’Connor’s mother had rented the flat for many years, so that she and her mother were known to Ms Bellenie. When she came back to live there after her mother’s death she contacted Ms Bellenie to ask if there was a residents’ association and mentioned that she now owned the flat. She attended Zoom meetings held to assess support for the bid to acquire the right to manage, and was supportive of the process but was waiting until her lease was registered before becoming a member of the company.

I am grateful to the respondent for explaining what happened. However, the information now available raises as many questions as it answers. The information has been provided in the form of a copy of a letter from Mr Joiner to the appellant’s solicitors. No application has been made to admit new evidence and so there is no witness statement. It is not known whether the director who knew Ms O’Connor told anyone else, at the relevant time, about the existence of a lease of flat 17. Nothing in the letter indicates that the director would have understood that Ms O’Connor had an equitable lease because it had not yet been registered. There has been no argument about whether what she knew was sufficient to alert her to the fact that Ms O’Connor was a qualifying tenant, nor whether the knowledge of one director, such as it was, can be imputed to the respondent company. Nor has there been any argument about whether notice is relevant to what I have to decide.

Accordingly, it appears that the factual basis presented to the FTT may have been wrong, but the evidential position is unchanged. I will therefore decide the appeal on the basis of the position as the FTT understood it, namely that the respondent did not know that a lease of flat 17 had been granted but had not yet been registered, because that is what the evidence (or its absence) shows.