Legal right or legal fight?

But thanks to the dogged determination of 39 elderly leaseholders of Regent Court, Plymouth things may be about to change.

Their landlord objected because s.78 notices inviting participation were not sent to the deceased husbands of 3 leaseholders whose names inadvertently remained on the title register. A further objection was that another s.78 notice was sent to an owner’s actual residence and not the qualifying flat, which was known to be empty. At a subsequent LVT hearing the Tribunal determined there was no need to serve notices on deceased spouses. Further it decided the failure to give a statutory notice at one empty flat was insufficient prejudice to deny RTM.

The landlord appealed to the Upper Tribunal and submitted that the failure to serve a s.78 notice invalidated the whole RTM process. The leaseholders submitted it could not have been Parliament’s intention to undo the entire process in such circumstances.

The leaseholders said the correct test was to focus on the consequences of non-compliance as set out in the 1999 immigration appeal case of Jeyeanthan in which Lord Woolf MR emphasised the need to ask whether there was substantial compliance, whether compliance could be waived and what were the consequences. Had the LVT gone on to consider these questions, they said, it would have clearly concluded there was substantial compliance.

The President accepted the leaseholders’ submissions and rejected the appeal. The landlord’s application to the Court of Appeal was refused on November 8, 2013.

This is a significant decision. Applying the Jeyeanthan principles to RTM means future FTTs can exercise discretion and in appropriate circumstances overlook minor acts of non-compliance, taking into account the consequences and evidence of prejudice.

Hopefully this judgment will help restore common sense to the process and deter litigation that frustrates RTM on strict points of law, making it less tortuous for future leaseholders, and less expensive for all concerned.