After a 6 year battle, residents of Elim Court, a block of retirement flats in Plymouth, have finally succeeded in ousting their landlord from the management of their properties. Following a two day hearing last week the Court of Appeal has given judgement in their favour.
In 2011 residents approached The Right to Manage Federation (RTMF) to pursue a claim under the provisions of the Commonhold and Leasehold Reform Act 2002, known as RTM. Leaseholders did not want to manage their properties themselves but they did want the right to appoint a management company of their own choosing. Their landlord Avon Freeholds Ltd, based in London and one of the most criticised landlords in the country, raised objections to the claim on legal technicalities.
In a decision that provides a long-awaited boost for right to manage generally, the court held that 'trivial failures of compliance' should not automatically invalidate all subsequent steps in the process.
Leaseholders were represented by barrister Winston Jacob, who generously agreed to take the case free of charge following an application by the RTMF to the Bar Pro Bono Unit.
At the outset of his submissions Mr Jacob directed the court to the consultation paper that the government published in August 2000, which set out the purpose of the proposed RTM legislation. He quoted from paragraph 10 of the document which stated "The procedures should be as simple as possible to reduce the potential for challenge by an obstructive landlord".
In summarising the court's decision Lord Justice Lewison said the current procedures still contain traps for the unweary. He invited the government to consider simplifying the procedure further... otherwise, he said, "I fear that objections based on technical points which are of no significant consequence to the objector will continue to bedevil the acquisition of the right to manage."
Commenting on the case, Dudley Joiner, director of RTMF said he was delighted for Elim residents who had shown tremendous fortitude and determination despite numerous setbacks in the lower courts.
RTMF has been criticised in some quarters for continuing with the claim instead of withdrawing and starting again with a fresh claim. In response Mr Joiner said this was Elim's third Claim Notice and there was every indication that Avon would continue objecting to subsequent claims on insignificant and petty grounds. Mr Joiner said "Walking away from 'bully boy' landlords is rarely the answer. Sometimes you have to stand your ground and give them a bloody nose otherwise they just keep repeating the same intimidating tactics to deter leaseholders from pursuing their legal rights. Unless these tactics are addressed head-on through the courts landlords will continue to find ways to obstruct the intentions of Parliament. This is a victory for a commonsense and will hopefully benefit thousands more leaseholders as they pursue their statutory right to manage."
Mr Joiner said he especially wanted to thank Winston Jacob for his thorough preparation and robust presentation of the case and RTMF solicitor Margarita Mossop, Mayfield Law, whose legal arguments in the lower tribunals were vindicated by the Court of Appeal decision.
Keith Phillips, who is a director of the Elim Court RTM Company and whose parents-in-law live at Elim Court, said it was a fantastic result and leaseholders were now looking forward to the democratic appointment of a professional management company. He said Y&Y, the management company appointed by the landlord, hasn't visited the property for 4 years, but continued to charge high fees and service charge costs. This was now coming to an end. He thanked Mr Joiner for his personal support to residents and for his unwavering perseverance on their behalf.
Despite winning the case in the Court of Appeal legislation does not allow leaseholders to recover their substantial legal costs from the first tier tribunal and the upper tribunal, which have been paid by the RTMF. Mr Joiner said RTMF will be lobbying government to address this imbalance in costs recovery as well as the other suggestions the Court of Appeal proposed.
The court ordered Avon Freeholds to pay the Bar Pro Bono Unit £5,000, which will enable the charity to assist other worthy cases.
Following the Court of Appeal decision in Triplerose Ltd v Ninety Broomfield Road RTM Co Ltd  it is now law that a RTM company can only manage premises comprising one single building or part of a building. The Right to Manage Federation (RTMF) has evidence that some landlords are now threatening enforcement action to prevent RTM companies continuing to manage multiple block estates. The RTMF has devised a legal strategy to enable leaseholders to safeguard their Right to Manage (RTM) in light of the retrospective effect of the Triplerose decision.
It is a basic feature of our judicial system that a court ruling that changes the law from what was previously thought operates retrospectively as well as prospectively. It is clear from the opinions of the Lords of Appeal in National Westminster Bank pls v Spectrum Plus Limited and others  UKHL 41 that although the court has powers to make a 'prospective overruling' it will vary rarely do so and only in exceptional circumstances.
As a consequence the legal position following Triplerose, with only a few possible exceptions, is that any company managing more than one building or part of a building in the belief that such powers were granted to it by statute is and always has been operating illegally. This is the view taken by the Land Registry Lawyer who has expressly stated that the ruling applies to all RTM companies including RTM companies that acquired RTM before the Triplerose decision.
The RTMF has helped over 7,500 leasehold properties acquire RTM and about 20% of these are potentially affected by the Triplerose decision. RTMF estimates that hundreds of RTM companies throughout England and Wales may be in operational jeopardy.
According to RTMF Director Dudley Joiner, “Triplerose was a bad decision insofar as it does not provide consistency in the law. For almost a decade the tribunals have interpreted the law differently and two Upper Tribunals upheld those decisions. Reversing the interpretation after such a prolonged period does not instil confidence
in our justice system. But we are where we are and we have to abide by the law. The RTMF has looked carefully at the legal position and the ramifications of Triplerose and we have a clearly defined strategy to help leaseholders maintain the powers of management until properly constituted RTM companies are formed and RTM legally acquired.
Doing nothing is not advisable. It is better to take protective action.”
The RTMF is offering help to all leaseholders and RTM companies at risk from the Triplerose decision. Those affected are invited to email firstname.lastname@example.org for further information.
Whilst the English football transfer window slams shut in less than 7 hours, @_RTMF_ are delighted to confirm that one piece of transfer business has been confirmed today, as the leaseholders of a 40 unit retirement estate situated in Bournemouth have their Right to Manage legally determined.
Like a South American transfer the landlord had already agreed to RTM during the middle of August, however the lease included a Third-Party who had until the close of business on the 28th August to serve a Counter-Notice if the claim was to be disputed.
We now look forward to supporting the RTM company through the transfer of management to their chosen agent Millstream Management of Ringwood, www.millstreammanagement.co.uk.
"Many thanks for this wonderful news this morning and for all your efforts in moving us from FirstPort to Millstream" Paul, RTM Company Director.
Five separate Right to Manage Companies for five distinct blocks.
On 21 May 2014 Woodside Court RTM Company served a Claim Notice on the landlord, Meridian Retirement Housing Services. The landlord subsequently issued a Counter-Notice contesting the claim citing a number of grounds, including that the premises do not comply with the Act. It was at this point that the Right to Manage Company turned to the RTMF for assistance.
Soon after receiving the RTM Company’s instruction and on receipt of a copy of the papers it became clear that the Claim was flawed and had little chance of success. It was therefore agreed that we would allow the Claim Notice to be deemed withdrawn, whilst we served a formal request for information.
On receipt of the information it was established that the landlord’s primary ground of dispute was that the premises consisted of a number of buildings and not one self-contained building as the leaseholders believed.
In a letter dated 16 October 2014 Peverel Retirement advised that the premises consists of eleven self-contained blocks, however after communications back and forth it was soon agreed that the premises actually has just the five blocks, shown on the site layout plan as Block A1, A2, B1, B2 and B3.
Aware of the impending Court of Appeal hearing, and considering the resources available to the Appellants in the case between Triplerose Limited and Ninety Broomfield Road  EWCA Civ 282, a decision had to be made on whether we should continue with one Right to Manage Company for the multiple blocks or form 5 separate RTM Companies, one for each block.
Expecting that any claim new for multiple blocks would be tied up in litigation until after the Court of Appeal Ninety Broomfield Road decision was known, it was agreed that four additional RTM companies would be formed and the original RTM company amended.
On 16 April 2015 we served three Claim Notices, one for each of the blocks known as A1, B2 and B3, with a further two Claim Notices on 5 May 2015 for blocks A2 and B1, five separate companies each with a Claim Notice in line with Ninety Broomfield Road decision.
We are pleased to say that FirstPort Retirement Property Services Limited has now issued three Counter-Notices admitting the Right to Manage blocks A1, B2 and B3. We now await FirstPort’s decision regarding the remaining two, three down two to go!
In an astonishing RTM costs case, Genesis Housing has had its legal costs slashed from a staggering £27,400 to just £1,937.
On 10 April 2014 Park Lodge (Billericay) RTM Company served a Claim Notice on the landlord, Genesis Housing Association. The claim was not contested and on 16th May 2014 their solicitors issued a Counter-Notice admitting the claim.
Genesis subsequently refused to provide any information to facilitate the transfer of management and failed to send Contract and Contractor Notices as required by statute. This prompted the RTM Company to serve a formal section 93 Information Notice. Genesis instructed solicitors to deal with the notice and provide the required information.
This resulted in excessive costs and a hearing at the Eastern Residential Property First-tier Tribunal on 28 April 2015, with Dudley Joiner, RTMF, representing the RTM company and Liam Varnam of Counsel for the landlord.
In his submission for RTM leaseholders Dudley Joiner said the landlord was obliged by the overriding objective to consider proportionality before engaging solicitors and running up costs. He referred to the FTT Rules (3(2)(a) and 3(3)(a)(b) which he said mirrored the civil court rules (CPR 1 and CPR 44). He said the FTT rule went even further in requiring consideration of the resources of the paying party before incurring costs. If the landlord had done so in this case said Mr Joiner, it would have realized that it was unlikely that elderly leaseholders on fixed pensions would be able to pay tens of thousands in legal costs.
Joiner cited the witness evidence of Nick Bignell, RTMF, who said the average s.81 RTM costs from a sample of 265 RTMF blocks comprising 6,918 flats was between £7.95 and £9.11 per flat, indicating costs in this case of about £700.
Mr Joiner said under the new costs regime proportionality took precedence over reasonableness and he invited the Tribunal to deal with the costs solely on this basis and not waste time considering the reasonableness of each item of costs claimed.
Mr Varnham , Counsel representing Genesis, submitted that the overriding objective did not apply to s.88 costs and the financial means of the leaseholders was irrelevant. He said the costs had been reasonably incurred because RTM was a complex process and Genesis had to comply with the law. He said that in a block of 80 flats the paperwork was extensive. He conceded that his client could recover VAT and would not be pursuing that element of costs.
The Tribunal accepted the submission of Mr Joiner and by way of a preliminary issue determined that the overriding objective and the requirement of proportionality does apply to s.88 costs and does take precedence over issues of reasonableness.
Whilst the Tribunal did not suggest that Genesis was being malicious when instructing solicitors, it did think that the landlord should have taken a step back and thought what it was doing. It concluded that a large landlord and property manager should have known that once the RTM Claim was accepted the work involved in transferring management from one managing agent to another could have been undertaken by Genesis in-house employees who would have all the information at their fingertips. The solicitor would not have to check all the facts, but merely check a draft response to ensure that section 93 was being complied with.
On receipt of the decision the RTM company commented "Nick, all the residents at Park Lodge would like to thank you and Mr Joiner on the way the Tribunal case was handled by the RTMF. This is a great relief for Park Lodge residents. A big thank you"
A bad day at the office for Proxima GR as the Tribunal determines that it has acted unreasonably in the conduct of its defence to valid Right to Manage claim, awarding the RTM company its costs.
When eight of the nine leaseholders of Angel Court Block B approached the RTMF to exercise their Right to Manage one could not anticipate subsequent events.
Angel Court is a residential development comprising two blocks of flats, known as Block A and Block B separated by a gated passageway. Even though in our opinion Block B qualified for Right to Manage as a structurally detached self-contained building, the landlord, to our amazement served a Counter-Notice disputing Right to Manage by alleging a breach of section of the Act which relates to part of a building.
The landlord was invited to withdraw the flawed Counter-Notice at an early stage, however following no response the RTMF were left with no option other than to make an application to the First-tier Tribunal on behalf of the RTM company. Whilst initially happy for a determination on paper it soon became clear that due to the landlord’s continued defence of the application it was in the best interests of the RTM company for the matter to progress to an oral hearing and for the Tribunal to visit the premises.
On the morning of the hearing the Tribunal inspected the premises accompanied by parties’ representatives. The hearing itself was a brief affair, given that there was only one substantive issue, namely whether Block B is a self-contained block within the meaning of the Act.
In its decision of 13 April 2015 the Tribunal found that as Block B is a separate building and therefore the landlord’s objection did not apply. It also found that the landlord was quite wrong to persist with its opposition to the tenants of Block B acquiring the Right to Manage, having been given the opportunity to withdraw its objection early on.
Following the hearing, Beverley Maryan commented "this is the best day of my life".
After two previous failed Notices of Claim the members of Green Moor Heights RTM Company turned to the RTMF for assistance to achieve the Right to Manage of their twenty five unit purpose built apartment block.
In June 2013 the leaseholders of Green Moor Heights, Sheffield acquired an off the shelf company with the intention of using it to exercise their RTM. The RTM company’s first Notice of Claim dated 10 July 2013 was met with a Counter-Notice disputing their entitlement to Right to Manage. The Counter-Notice was in the prescribed form and alleged that the RTM company was not entitled to acquire the Right to Manage by virtue of various provisions of sections 73, 78, 79 and 80 of the Act.
In February of 2014 the RTM company issued a further Claim Notice, which again received a Counter-Notice alleging numerous procedural failures that it claimed prevented RTM. The RTM company made an application to the First-tier Tribunal for determination that the RTM company was entitled to acquire the Right to Manage.
On 20 October 2014 the First-tier Tribunal determined on papers that the Notices of Invitation to Participate were deficient, which in turn meant that the RTM company was not in a position to give a valid Notice of Claim.
It is against this backdrop of litigation that the RTMF agreed to assist the leaseholders in finally achieving Right to Manage. After a period of due diligence the RTMF issued fresh Notices of Invitation to Participate to non-supporting leaseholders on 11 March 2015, followed by a fresh Notice of Claim on the landlord, Sinclair Gardens Investments (Kensington) Limited on 2 April 2015.
We are delighted to advise that in today’s post the RTMF received a Counter-Notice admitting Green Moor Heights Right to Manage. The RTM company will finally acquire the management of the premises on 18 August 2015, some 25 months after serving their first Notice of Claim.
We wish the flat-owners and members of Green Moor Heights every success for the future.
Having previously been unsuccessful with an earlier Right to Manage application the residents of Williams Court became one of the growing number of estates that approach the RTMF to secure their Right to Manage.
Despite their failed attempt the RTMF believed that Right to Manage was achievable, and agreed to act on behalf of the Williams Court flat owners, on a fixed cost basis.
On the 6 February 2014 the RTMF issued two Claim Notices on the landlord Fairhold, one for each of the two self-contained blocks that make up the small estate of 14 units, each clearly identifying the subject block.
On receipt of two counter-notices, the RTMF with the full support of the RTM company made an application to the First-tier Tribunal for determination that it was entitled to acquire the right to manage the premises.
The Tribunal found in its decision of 21 January 2015 that the two Claim Notices were perfectly clear, concluding that a Claim Notice need not specify whether the premises include appurtenant property, following the decisions in both the Gala Unity and Pineview cases.
The Tribunal also found it clear that as the law stands a single Right to Manage company can seek, and acquire the Right to Manage more than one self-contained building.
Whilst the Respondent, Fairhold appeared to accept the decisions in favour of one Right to Manage company it focussed its attention on delaying proceedings by seeking a stay of proceedings pending the Court of Appeal decision on Ninety Broomfield Road.
The First-tier Tribunal commented "that Right to Manage was introduced by Parliament to empower tenants and not to make their lives more difficult".
The RTMF look forward to working with, and supporting the Right to Manage company whilst they seek independent, neutral and impartial managing agents, now that they have a direct choice over the property manager in the premises where they live.
Victoria Place, Esher becomes the latest Retirement Estate to replace Peverel Retirement with an agent of their own choosing, using the RTMF's bespoke service to help retired leaseholders.
On 13 February 2015 the management of the site passed to Millstream Management, a managing agent specialising in the management of retirement property.
Apart from attending presentations by their chosen management companies and voting in the selection process, leaseholder participation at Victoria Place was minimal.
All decisions in selection of new agents were made democratically and transparently by the company, with no one pressurised or excluded. The appointment of the new management company was democratically determined by a members Selection Committee. The invitation to join this committee was open to all members of the RTM company .
Victoria Place resident and RTM Director Geoff Walker said "The selection process proved to be relatively easy based on your comprehensive questionnaire to each of the invited tenderer's backed up by our 10 point list. The only difficult part was making a decision choosing between the two company's who made the short list, we felt that either would have met our expectations so it was a good position to be in. All in all the whole experience of taking up our Right to Manage using RTMF proved to be trouble free, and made simple a process that would have been much more difficult had we elected to effect the change ourselves. Thank you for being there to guide us when needed".
The RTMF has been providing this no-cost RTM service to retired leaseholders for over nine years now, and to date we have impartially assisted around 70 retirement blocks (over 2700 retirement flats) choose who manages their premises.
We most certainly do not recommend that retired residents manage themselves, but use RTM legislation to enable them to end their landlord's monopoly and appoint a professional management company of their own choosing.
Milton House, in Newton Abbot, Devon is one of five retirement estates acquired in 2010 by Avon Freeholds and managed by Y&Y, companies associated with the Messrs Gurvits and Moskovitz and much criticised for their poor management and general disregard for resident’s well being. Their RTM Claim Notice was served in April 2014, with 97% of leaseholders in support and members of the RTM Company.
True to form Avon Freeholds served a Counter-Notice alleging numerous procedural failures that it claimed prevented RTM, including the allegation that deceased partners should either become members of the RTM Company, and/or be given a notice of invitation to participate and further, that the membership consent forms signed by residents were invalid because they had been signed before the company was incorporated.
Unsurprisingly, when it came before the Tribunal Avon dropped its frivolous argument over deceased leaseholders. On the membership issue the Tribunal rejected the submissions of the Avon’s barrister, Oliver Radley-Gardner preferring the legal arguments put forward by RTMF solicitor and leaseholder champion Margarita Mossop. The Tribunal accepted the evidence of RTMF Director Dudley Joiner that pre-incorporation consent forms fulfilled the function of RTM company membership applications.
The Tribunal stated “it therefore seems churlish to the Tribunal to accept the Respondent’s argument that the Memo and Arts of the RTM company must be strictly interpreted so that a consent form, in the form of the consent forms used in this case, cannot be utilised, post incorporation of the RTM Company, as evidence of an application for membership of it”.
The Tribunal also found it puzzling that on the one hand Mr Radley-Gardner relied upon a date error in the Register of Members as evidence it was inaccurate, yet on the other hand argued that the Register was not admissible as evidence.
Milton House resident and RTM Director Mike Rutherford said the result was “brilliant and so well done in spite of the aggressive approach taken by the landlord’s barrister”.
Dudley Joiner has issued a word of caution. He said “although residents should be encouraged by this result, they should be aware of Avon’s litigious record in other cases and brace themselves for an expected appeal to the Upper Tribunal”.
The first Avon Freeholds estate to engage the RTMF was Regent Court and their claim notice was served in March 2011. They faced similar objections and it took over two years for their claim to be favourably determined by the President of the Upper Tribunal, who found that procedures had been substantially complied with and agreed with Margarita Mossop that it was not Parliament’s intention that the whole right to manage process should be automatically defeated by an inadvertent failure to comply with a statutory procedure.
The second of the five estates to approach RTMF was Elim Court, again back in 2011. Avon Freeholds raised tenuous objections in that case, and with the help of expensive lawyers has managed to avoid RTM for three years. The case is now heading to the Court of Appeal.
The Right to Manage Federation has achieved its biggest ever RTM at a Peverel managed development of 967 luxury apartments known as Century Wharf, Cardiff. This eclipses England's biggest RTM, the prestigious Metro Central Heights, a block of 422 flats in the Elephant & Castle, London completed by the RTMF in 2012.
The Century Wharf development comprises nineteen buildings divided into thirty five self-contained units, confusingly known as houses. Following numerous site visits the RTMF formed three RTM companies in October 2012, one for each freehold title.
Over 500 members were secured across the three companies, with the required 50% or more in each of the nineteen buildings. Credit must also go to the directors and committee based in Cardiff for their tireless work in building the substantial membership.
During February and March 2013 nineteen Claim Notices were issued, one for each of the buildings on the site. Each of these notices received a Counter-Notice challenging the right to manage on several grounds, including the right of one RTM Company to manage multiple buildings.
A Tribunal hearing in Cardiff in November 2013 was adjourned pending an Upper Tribunal decision on whether one RTM Company can manage multiple premises. At the reconvened hearing in March 2014 the Tribunal decided that the Upper Tribunal Decision in the case of Ninety Broomfield Road confirmed that our solicitor's submissions were correct, and therefore in its Decision of May 2014 determined all three RTM Companies were entitled to RTM.
Court of Appeal success has finally allowed Regent Court RTM Co Ltd to take control of the future management of the Regent Court, Plymouth. Guided by the RTMF and following a process of competitive tender, the RTM company have chosen to appoint the Kingsdale Group to manage the premises on their behalf from 1st March 2014.
Kingsdale’s Managing Director, William Butchart Commented:
“Kingsdale is very pleased to have been appointed to manage Regent Court, and we will be working very hard to ensure that owners are happy with what we do. We believe it is absolutely right that the people who receive and pay for services had the opportunity to select the company that would subsequently be responsible for providing those services.
This empowerment of leaseholders is a fundamental and long-overdue change to the prevailing Landlord/Tenant relationship.”
To date the RTMF have been instructed at more than 35 developments managed by Peverel Retirement.
Over the course of the last 9 years the RTMF have been invited to meet with many estates managed by Peverel. A vast majority of these estates have engaged the RTMF to act on their behalf immediately to acquire their RTM, a few returning to us after a couple of years, having given “Customer Charters” and the like the benefit of the doubt.
In 2011 the RTMF met with leaseholders at a retirement development in Balsall Common, Coventry, where the incumbent agent was Peverel. The RTMF were invited to give a presentation on RTM to all leaseholders in the residents´ lounge. On becoming aware of our visit, Peverel offered to set up the RTM company and meet the costs associated with it, in exchange for a management agreement. Whilst we have seen this tactic adopted at other developments, we are unaware of any other estates visited by the RTMF taking up this offer.
A few weeks ago we received a call from the retirement estate for advice, as following the issue of the notice of claim Peverel received a counter-notice from the landlord, Fairhold Homes (NO.13), citing various grounds regarding the service of notices. Subsequently the estate advised us the Peverel have now withdrawn their legal support following pressure from the landlord, resigning as corporate secretary and transferring the Registered Office to the House Managers office.
The RTMF have now been appointed to act on behalf of the RTM company. The RTMF have assumed the role of Corporate Secretary and are now providing the registered office for the RTM company. We look forward to working with the directors of the RTM company, and finally achieving RTM for the premises.
Having first met with the RTMF last summer, the directors of Trinity House RTM Company have entered into an agreement with Stratton Place Management, to manage Trinity House from the 1st February.
Rather than manage the property of 43 flats themselves, the RTM company have followed the advice of the RTMF in appointing a managing agent to deal with the day to day management. We wish them every success.
We are receiving an increased number of applications, where estates have previously endeavoured, but failed to obtain Right to Manage.
In May 2012, a group of leaseholder’s of the Regal Building, Kilburn formed a RTM company with the intention of exercising RTM, and to acquire the management of the development comprising of 37 flats. Despite their best efforts the landlord objected to their claim, by issuing a counter-notice in September 2012.
Following discussions and on the recommendation of the proposed managing agent, the RTMF were appointed in October 2013. After reviewing all documentation and correcting technical points of objection, the RTMF served a notice of claim in November 2013, on behalf of a majority of leaseholders. Much to leaseholder’s delight no counter-notice was received by the specified date, therefore the management of the building will be acquired on 24 April 2014.
Following the successful Right to Manage (RTM) determination for Kings Lodge, Finchley, London, the Right to Manage Federation (RTMF) have now assisted over 2000 leaseholders exercise RTM in retirement developments, with more in the pipeline.
RTMF have assisted retired leaseholders throughout England and Wales, including developments in Yorkshire, Derbyshire, Shropshire, Hampshire, Kent, Sussex, Hertfordshire, Oxfordshire, Essex, Norfolk and Devon, with further estates in London, Birmingham and Swansea.
In August 2013, a majority of the leaseholders of Kings Lodge, a block of 58 flats instructed the RTMF to acquire the RTM, agreeing to our unique and proven RTM Retirement Scheme.
On receipt of the Notice of Claim, the landlord, HOME GROUP issued a Counter-Notice, admitting the RTM. Now that the RTM has been determined, the RTMF will shortly invite all members of the company to join the nominated directors in forming a Manager Selection Committee, a process that has worked extremely well for many of the developments assisted by the RTMF.
On 28 January 2013, the RTMF issued a Claim Notice on behalf of a majority of leaseholders to acquire the Right to Manage 8 to 11 Cleveland Square, London, a residential block of 25 apartments. Whilst 8 to 11 Cleveland Square forms part of a series of terraced buildings, the original building was destroyed by a bomb during World War II, with a new brick building being constructed.
By a counter-notice dated 4 March 2013 DMH Stallard, on behalf of the Landlord served a counter-notice denying the Right to Manage on the basis that the building was not a self-contained building, in so far that the premises share a heating system with 1-3 Cleveland Gardens, a building further down the terrace, and therefore not capable of being redeveloped independently.
On receipt of the counter-notice, the RTMF made an application to the Tribunal of behalf of the RTM company, as in the RTMF´s opinion history clearly demonstrates that the building is self-contained and capable of being redeveloped independently.
During the hearing, at which the RTM company were represented by Dudley Joiner from the RTMF, and the Landlord by Mr Sissons, the Tribunal found that...
“It was not necessary in the present case to reach any conclusions as to what test in relation to independent redevelopment had to be applied and what evidence, if any, the Applicant had to adduce in this regard. The mere fact that the property had been demolished and rebuilt as a consequence of war damage was sufficient to prove that independent redevelopment was entirely achievable. Accordingly, the Tribunal concluded that section 72(3)(b) of the Act was satisfied”.
It was submitted by Mr Sissons that, as the heating system was not provided separately from other parts of the terrace, it was for the RTM company to prove that it could be done by carrying out works likely to result in a significant interruption of heating services to the rest of the building, as required by the Act. The Tribunal rejected the submissions made by Mr Sissons largely for reasons advanced by the RTMF, as under the terms of the residential leases of both premises, the Landlord is only contractually obliged to provide heating between October and April in each year, giving a period of some months to install and commission separate heating systems. Furthermore, in paragraph 6.19 of the Respondent´s Heating Engineer´s report, it confirms that “new boilers can, therefore, be installed whilst the existing oil fired boilers remained in operation”.
To the delight of RTM company members the Tribunal concluded that the requirements of the Act had been satisfied, and therefore determined that the RTM company shall acquire the Right to Manage.
“Thank you to the whole RTMF team for your support, which has enabled us to get this favourable determination”.
Chris Bolton, RTM company director.
The Right to Manage Federation (RTMF) is delighted to have assisted the leaseholders of Regent Court, a retirement development in Plymouth through their tortuous Right to Manage (RTM) claim, which eventually led to the case being heard by the Upper Tribunal.
The Upper Tribunal dismissed the landlord´s appeal on all points of law, wholly agreeing with the submissions of RTMF´s solicitor Margarita Mossop, and not those of Justin Bates, the barrister representing the landlord, Avon Freeholds Limited.
This is not only a significant victory for leaseholders of Regent Court, it is a landmark case that will benefit thousands of leaseholders seeking RTM in the future. It is hoped that the judgment will restore common sense to the process and deter litigious landlords from seeking to obstruct and delay RTM due to loopholes and ambiguities in the law.
Far too many RTM cases are being opposed on increasingly tenuous and sometimes obscure points. This is seen to be a deliberate ploy by some landlords to frustrate what should be a statutory right and no fault process. It is a credit to the leaseholders of Regent Court, many of whom are elderly, that they remained co-ordinated and determined throughout the lengthy process to acquire RTM.
Regent Court RTM Company Limited, a private company owned by the leaseholders, will now appoint a new management agent of their own choosing.
RTM is the legal right of leaseholders in a block of flats to acquire the management of their properties by either managing it themselves or appointing a professional management company of their own choosing. This provision is made available under The Commonhold and Leasehold Reform Act 2002. RTM intends to put power and control back in the hands of leaseholders, thereby driving up the standards of leasehold management and providing leaseholders with the statutory power to resist exploitation by unscrupulous landlords and managers.
RTMF was set up in 2006 to offer a unique RTM scheme to retirement blocks in response to exorbitant charges and poor services from management companies. Its services expanded over the years to embrace all residential apartment blocks. To date, the RTMF has successfully completed RTM for over 4000 properties, including 1,800 properties in retirement developments.
In December 2012, a majority of the leaseholders of the Richard Beau Nash Apartments, a development of 26 apartments built in a style to reflect the town´s historic past, instructed the RTMF to acquire the right to manage their building. They were keen to acquire RTM to enable them to appoint a local managing agent, and replace the Landlord´s Worcester based agent.
On 6 February the RTMF served a Notice of Claim on the landlord, and in reply received a letter from Freehold Managers PLC confirming that the RTM claim will not be opposed.
Malcolm Flanagan, Director of the RTM commented:-
“Starting the Right to Manage journey can be daunting for leaseholders. But the Right to Manage Federation (RTMF) in Uckfield guided us superbly through the difficult early stages in a friendly, authoritative and helpful manner. They clarified legal matters with useful emails and phone calls. And in the end costs were reasonable. I would recommend them to help you get past the finishing line with time to spare and making the process more than manageable. Unleash the RTMF and find a good local management agent.”
In May 2011, all three leaseholders of 19 Ullswater Road, South East London instructed the RTMF to acquire the right to manage of their building. Advising that they wished to take on the management responsibilities themselves as the property has just three flats.
On the 7 June 2011 the RTMF served the Notice of Claim, giving until 14 July 2013 to respond with a counter-notice if the claim was disputed. On the 18 July the RTMF emailed the landlord´s agent, Trust Property Management as nothing had been heard, to which Trust replied enclosing correspondence dated 12 July admitting our client´s right to manage.
The RTM Company has now been managing the property since October 2011, and in a recent email Wayne Judd, director of the RTM Company commented:
“Taking on the right to manage has been liberating to say the least. We now have total control over how our property is managed and are saving heaps of money. Not only have we saved on the management fee and sundry other expenses, but we have cut our insurance premium to almost a third of what we were paying under the freeholder´s agents. Thank you RTMF”