[2024] UKUT 423 (LC)

Part II of the Landlord and Tenant Act 1987 enables the FTT, on the application of a tenant of a flat, to appoint a manager of premises containing two or more flats. Its provisions are very different from the “right to manage” provisions of the Commonhold and Leasehold Reform Act 2002. The latter operate on a “no fault” basis; all the leaseholders have to do is to follow the correct procedure in order to acquire the right to manage a building, so long as the non-residential part of the building does not account for more than 25% of its floor area. Under the provisions of the 1987 Act, by contrast, the tenant has to show that there is something wrong with the landlord’s or management company’s management of the premises, and that it is just and convenient for the FTT to appoint a manager. As a matter of fairness, therefore, the prescribed procedure requires the tenants to tell the landlord what the problem is before the application to the FTT is made, and to give it the opportunity to put things right.

Those requirements are set out in section 22, which provides that before an application to the FTT for an order appointing a manager can be made, the tenant must serve a notice on the landlord and on anyone else with management responsibilities (such as a management company that is party to the lease). The notice must state the name and address of the tenant who intends to apply to the FTT, and must:

“(2)(c) specify the grounds on which the court would be asked to make such an order and the matters that would be relied on by the tenant for the purpose of establishing those grounds;

(d)

where those matters are capable of being remedied by any person on whom the notice is served, require him, within such reasonable period as is specified in the notice, to take such steps for the purpose of remedying them as are so specified…”

Section 24 provides that the FTT may make an order appointing a manager to manage the premises, but only if it is satisfied:

Thus grounds 24(1)(a) to (ac) are bipartite: there must be both a factual finding and a judgment that it is just and convenient for the order to be made. The statute does not require that it is that factual finding that makes it just and convenient for the order to be made; the facts are simply gateways. Ground 2(2)(b) is also bipartite, but in a slightly different way: again there have to be findings of fact that “other circumstances” exist, and then a judgment that it is just and convenient for the order to be made, but in this case it has to be those “other circumstances” make it just and convenient.

Section 24 also says this:

“(7)

In a case where an application for an order under this section was preceded by the service of a notice under section 22 , [the FTT] may, if it thinks fit, make such an order notwithstanding—

(a)

that any period specified in the notice in pursuance of subsection (2)(d) of that section was not a reasonable period, or

(b)

that the notice failed in any other respect to comply with any requirement contained in subsection (2) of that section or in any regulations applying to the notice under section 54(3).”