Mahmut v Jones (Court of Appeal, 30 November 2017, Arden, Lewison and Beatson LJJ)
Mahmut v Jones (Court of Appeal, 30 November 2017, Arden, Lewison and Beatson LJJ)
Anthony Radevsky acted for the successful Respondents in a case under Part I of the Landlord and Tenant Act 1987.
The Appellants had purchased the freehold of a building from a landlord who had failed to give the tenants the right of first refusal. The tenants, the Respondents to the appeal, served a s. 12B purchase notice, which the Appellants ignored. The Respondents served a default notice under s. 19(2) of the Act, and obtained an order on 29 October 2013, requiring the Appellants to transfer the freehold to them. The Appellants failed to comply with the order and later served a notice under s. 17(4) of the Act seeking to terminate the Respondents’ rights. The District Judge held that the Appellants were not entitled to serve a s. 17(4) notice, and signed the Transfer in favour of the tenants.
On a second appeal, the Court of Appeal held that the order of 29 October 2013 was equivalent to a binding contract within the meaning of s. 17(4). It took the place of a contact that should have been entered into, had the Appellant purchasers complied with their obligations under the purchase notice. Section 17(4) was not therefore engaged. The Appellants were only able to argue that s, 17(4) applied by virtue of their own breach of the order of 29 October 2013. They cannot be allowed to rely on their own wrong to exercise a statutory provision. The order of 29 October 2013 provided a series of steps over a period of time which should have led to the transfer of the freehold to the Respondents’ nominee, and there was liberty to apply for the purpose of carrying it into effect. The claim for that order was not ‘determined’ within the meaning of s. 17(4) until the freehold was transferred pursuant to it.
The judgment can be found here
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