In the case of CONSENSUS BUSINESS GROUP (GROUND RENTS) LTD v PALGRAVE GARDENS FREEHOLD CO LTD (2020) [2020] EWHC 920 (Ch) the landlord failed in its appeal against the first instance decision in favour of the flat owners’ nominee that enabled it to amend the freehold enfranchisement claim notice to clarify the extent of the land claimed and declared that the block of flats and its basement car park comprised a single building.
Two points came out of this. The first being that the claim was not fatally flawed for want of clarity as to whether a basement car park was included as it was decided that it would have been clear to a reasonable landlord that the intention was to acquire the freehold to the whole site including the car park.
Secondly while the development presented as a number of separate blocks above ground level for the purpose of claiming the freehold collectively under the enfranchisement legislation they were to be regarded as a single building and so it was considered correct to make a single claim in respect of it.
By way of background the development comprised five blocks of flats with a basement car park running underneath and beyond their footprint as ground-level. The tenants made a single claim in respect of the whole of the development as opposed to one claim in respect of each block. The landlord contended firstly that that the development was not a self-contained building and so did not qualify and secondly that the notice was not valid as it was unclear whether the basement car park was included.
The tenant’s nominee applied for a declaration that it did qualify and to amend its notice to clarify the extent of the car park to deal with the second point.
On appeal validity was upheld on the basis that there was no formal or substantive invalidity; as to the former it was decided that there was not a failure to comply with the mandatory requirements as to form or content i.e. that the notice “specify and be accompanied by a plan showing” the premises proposed to be acquired under the relevant sections of the legislation; to then fall at the “substantive” hurdle it would have to be shown that it was a claim that the tenants were not entitled to make.
CONSENSUS BUSINESS GROUP (GROUND RENTS) LTD v PALGRAVE GARDENS FREEHOLD CO LTD (2020)
The ability to amend the claim was upheld; Schedule 3 para.15(2) of the LRHUDA 1993 allowed a notice to be amended where, amongst other things, it failed to specify property or interest liable to acquisition. This included external parts that tenants did not have to acquire. The notice did not have to be invalid in order to be amended.
To constitute a self-contained building it must be structurally detached. This did not refer to the structure above ground level; it included all parts immediately below each block and so the basement car park and subsoil below that. The continuous slab forming the floor of the car park and its open nature enabling a flat owner to drive beneath all blocks meant that the blocks were not structurally detached at basement level. It was determined that the development had been constructed as a single unit. So it constituted a single, coherent structure.