In the case of Eugenia Villarosa v Robert Ryan [2018] EWHC 1914 (Ch), a tenant has succeeded in claiming a new lease despite the claim being made more than two years after the Grant of Probate was obtained.
The question was whether the ability for Personal Representatives (PRs) to claim a new lease within two years of the Grant of Probate being obtained was a limit on the special right given to PRs in this situation or whether it was meant to put them at a disadvantage that other flat owners didn’t suffer from.
The Commonhold and Leasehold Reform Act 2002 added a section to the Leasehold Reform, Housing and Urban Development Act 1993 that gave birth to the right to an extended lease for flat owners and the ability for PRs of a deceased flat owner to exercise the right to a new lease where the deceased qualified for that (s.39(3A) ). The PRs have up to two years from the date the Grant of Probate is obtained to make that claim (s.42(4A)). In this case the flat owner had passed away in 2007 when title vested in his executors. The Grant of Probate was then obtained in 2010 and some six years later the lease was transferred to the appellant. The executors claimed a new lease and assigned the benefit of that at the same time.
So the landlord asserted that the executors had made the claim four years too late. On appeal that argument failed on the basis that the executors did only have the two year period to make a claim under s.39(3A), that had been introduced to assist families in this particular circumstance but it did not prevent them from then becoming a qualifying tenant in their own right after two years of their ownership.
The court looked back at the ministerial statements at the time and found this indicated the special provision was meant to be an additional right for PRs (to assist them during the first two year period) as opposed to being designed to detract from the rights they would otherwise enjoy after that two year period.
So this will be a relief for PRs and removes a potential argument in the armoury of landlords.