Curzon v Wolstenholme [2017] EWCA Civ 1098 - UT Decision

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Summary

The Upper Tribunal (Lands Chamber) has held that a copy of a claim notice in respect of the right to manage procedure under the Commonhold and Leasehold Reform Act 2002 could be served validly by email on the qualifying tenants by the RTM company.

Facts

110 Boulevard (‘the Property’) contained five flats variously owned by four qualifying tenants.  Pursuant to s.79(8) of the 2002 Act, the RTM company must serve a copy of the claim notice on each qualifying tenant of a flat contained in the premises.  The RTM company served a copy of the claim notice upon the tenants by email.  The Landlord contended that this was not valid service under the Act.

Issues

The sole question for the Upper Tribunal was whether service of a copy notice by email complies with s.78(9) of the 2002 Act.

First instance

The FTT was satisfied that a copy of the claim notice had been sent to each of the tenants by email.  It was held that this was good service on the basis that the 2002 Act does not require service of the claim notice by post nor does it require proof of receipt, merely that it be in writing.

As to prejudice, the FTT held that even if any of the claim notices were not received, any such leaseholder would not be prejudiced as they were each members of the RTM company and would likely have joined the RTM company with an intention to manage the company in any event. 

Decision on appeal

The Upper Tripunal upheld the FTT’s decision that service by email complied with s.79(8).  It was held that the requirements of s.79(6) and s.79(8) are distinct. Section 79(6)(a) states as follows:

The claim must be given to each person who on the relevant date is… a landlord under a lease of the whole or any part of the premises’  

By contrast, s.79(8) requires that:

‘A copy of the claim notice must be given to each person who on the relevant date is the qualifying tenant of a flat contained in the premises’.

Pursuant to s.111(1) of the 2002 Act, notices must be in writing and may (as opposed to must) be sent by post.

It was noted that there is no requirement under the Act to give an original claim notice to each tenant, nor any requirement for any species of signature and that the Act contemplates that a notice may be given by a method other than post.  It was therefore held that service of the claim notice by email, either in the body of the email or as an attachment was good service under s.79(8).

When considering the question of prejudice, the Upper Tribunal adopted the approach of the Court of Appeal in Elim Court RTM Company Ltd v Avon Freeholds Ltd [2017] EWCA Civ 89, itself referring to in Newbold v Coal Authority [2013] EWCA Civ 584 that

"Finally, it may be that even non-compliance with a requirement is not fatal. In all such cases, it is necessary to consider the words of the statute or contract, in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties.”

The Upper Tribunal therefore followed Elim Court in holding that a failure to comply precisely with notice requirements does not necessarily invalidate subsequent steps.  Therefore, it was held that even if the Upper Tribunal was wrong on the service point, the purpose of s.79(8) is to protect the tenants, all of whom were members of the RTM company.