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Premises are not a “flat” unless at some point in their existence someone could have lived in them

Judgment in Aldford House Freehold Ltd v Grosvenor (Mayfair) Estate and K Group was handed down by the Court of Appeal on 1 November 2019. The judgment was delivered by Lewison LJ with whom David Richards and Rafferty LJJ agreed.

The dispute concerned a collective enfranchisement claim relating to Aldford House, a large block of flats on Park Lane. Stephen Jourdan QC, leading Tom Jefferies, appeared for the headlessee, K Group.

There were two issues on the appeal.

First, at what point in time do newly constructed premises become a “flat” for the purposes of the Leasehold Reform, Housing and Urban Development Act 1993?

The Act defines a “flat as “a separate set of premises (whether or not on the same floor) (a) which forms part of a building, and (b) which is constructed or adapted for use for the purposes of a dwelling, and (c) either the whole or a material part of which lies above or below some other part of the building”. “Dwelling” is defined as: “any building or part of a building occupied or intended to be occupied as a separate dwelling”.

There were two questions in relation to those definitions. First, whether there were “separate” sets of premises. As to that, Lewison LJ said that what mattered was the physical configuration of the premises, rather than their use or intended use. In this case, he held that there were four areas on the sixth and seventh floors of Aldford House which were sufficiently physically separate.

Second, whether each of the separate sets of premises were “constructed or adapted for use for the purposes of a dwelling”. They were each built with the intention of being used as a separate dwelling. But they had not yet been fitted out so that someone could live in them. Lewison LJ held they did not satisfy the definition of “flat”. A separate set of premises, he held, is not a “flat” unless at some stage in its history it has reached a stage of construction where it is suitable for use for the purposes of a dwelling. A flat gutted by fire or stripped out for refurbishment would still qualify. But premises which had never, in their existence, reached the point where they were suitable for living in would not.

The second issue was whether one of the tenants, Rokkibeach Ltd, had authorised a solicitor to sign the initial notice claiming the freehold on its behalf. The authority to the solicitor was given by two individuals, Dana Munnings and Marvin Taylor, signing on behalf of the two corporate directors of Rokkibeach. The issue was whether Munnings and Taylor had authority to sign on behalf of the two corporate directors. Lewison LJ held that they did.

The judgment can be read here.

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