[2024] UKUT 109 (LC)

The appellant applied to the FTT for a determination that it had acquired the right to manage all three blocks. In due course the Management Company filed a statement of case in which it gave three reasons for disputing the appellant’s claim.

The Management Company first explained that the first respondent, Adriatic Land 3 Ltd, is the owner of the freehold interests in Harborough House and Brecon House and that the Management Company is party to the leases of the individual flats within those blocks with responsibility for their management. In contrast, the freehold of Saltley House is owned by Notting Hill Genesis, the third respondent. All 27 flats in Saltley House are let on shared ownership leases under which Notting Hill Genesis, and not the Management Company, is responsible for management and the provision of services. It was asserted that the right to manage is not available in respect of blocks of flats owned by different freeholders, a proposition said to be supported by the decision of the Court of Appeal in Triplerose.

The Management Company next asserted that the property in respect of which the right to manage was claimed (i.e. all three blocks) does not comprise a single building for the purposes of the Act. It pointed out in particular that Brecon House is divided above ground from Harborough/Saltley House. The appellant responded to this point in its statement of case by referring to the counter-notice given by the Management Company in 2021 in answer to the previous claim by Brecon House RTM Co to acquire the right to manage Brecon House alone. It was said that the Management Company had accepted in that counter-notice that Brecon House was attached to an underground car park and had a shared pump room with Harborough House. The appellant also claimed in its response that Harborough/Saltley House and Brecon House were all joined by the same car park and that the appellant was therefore entitled to acquire the right to manage all three blocks. The Management Company filed a response to the appellant’s statement of case in which it made no reference to the assertion that the three blocks are connected by the underground car park.

Neither party filed any evidence in the proceedings. The only material available to the FTT on which to base its decision was therefore contained in the statements of case and supporting documents. These included one sample lease from Harborough House and another from Saltley House. Each lease includes some very small scale plans: one no bigger than 2 inches square showing the relationship of the buildings to each other; another of the same size showing the position of the underground car park between the buildings; and a third, larger plan showing part of the car park, indicating the location of some lifts and staircases, but not the relative position of the structures above. The plan leaves a number of unanswered questions including, in particular, whether Saltley House and Fazeley House (which is not part of the premises over which the right to manage is claimed) are positioned above any part of the car park.

Despite the inadequacies of the evidence the FTT decided both that it was appropriate to determine the application without a hearing and that it was unnecessary to undertake an inspection of the premises.

The FTT’s decision is quite short and concludes that the appellant is not entitled to acquire the right to manage the three blocks. The substance of the reasoning is contained in three paragraphs, as follows:

“12.

The tribunal accepts the respondent’s submission that the 2002 Act was not intended to entitle a right to manage to be acquired by a single RTM Company where the premises it is seeking to manage comprise a number of blocks whose freehold is held by different freeholders and on different lease terms. In this respect the tribunal follows the judgment in Triplerose Ltd v 90 Broomfield Road RTM Company Limited [2015] EWCA Civ 282.

13.

The tribunal also finds the subject premises do not form a single building for the purposes of the Act. The tribunal finds Brecon House is vertically divided above ground from Harborough House and Saltley House and each block has its own designated separate entrance and both Harborough House and Brecon House have their own gas meter room notwithstanding there is a car park that runs continuously below the three blocks.

14.

The tribunal also finds that there was already at the time of the service of the notice of claim dated 7 February 2023 and remains in existence an RTM Company in respect of Brecon House namely GUV Brecon House RTM Company Limited, the sole object is the acquisition of the right to manage part of the subject premises which forms part of this application i.e. Brecon House and therefore the applicant is not in compliance with section 73(4) of the 2002 Act.”

The FTT described the question whether a notice inviting participation had been served on the leaseholder of flat 31 as “a dispute of fact” and made no findings on it.