Brynmor Adams secures right to manage success in the Upper Tribunal
January 19, 2021
Brynmor Adams from Exchange Chambers has secured an important decision in the Upper Tribunal for leaseholders who wish to take control of the management of their buildings.
In Bentham v Lindsay Court (St Annes) RTM Company Limited  UKUT 4 (LC), the Upper Tribunal considered the interaction between the right to manage and the role of a Tribunal-appointed manager. The two statutory regimes were put in place to protect leaseholders against poor management of their buildings. The Landlord and Tenant Act 1987 gave what is now the First-tier Tribunal the power to appoint a manager for residential premises. The Commonhold and Leasehold Reform Act 2002 conferred the right on long residential leaseholders to take control of management by the formation of a right to manage company.
Lindsay Court had had a Tribunal-appointed manager in place since 2014, when an estate-wide right to manage company failed. In 2019, the leaseholders in block 1 decided to exercise the right to manage in respect of their block rather than continue under the management of the Tribunal-appointed manager. The manager considered the separate management of block 1 to be an undesirable development and invited the First-tier Tribunal to exercise its power to vary the order appointing him so as to deprive the block 1 lessees of the right to manage.
Brynmor successfully represented the leaseholders and their RTM Company before the First-tier Tribunal, which found that it had no jurisdiction to make the order sought. The Tribunal considered that the right to manage could only be terminated following a new application to appoint a manager. This would require service of a preliminary notice and proof of one of the statutory grounds for appointing a new manager.
The manager and the freeholder appealed unsuccessfully to the Upper Tribunal. Judge Elizabeth Cooke held that: “The specific procedural and substantive requirements of the 1987 Act must be satisfied before a person can be deprived of their right and responsibility to manage their own property. To take away an RTM company’s right to manage when those requirements have not been met runs contrary to the policy of the 1987 Act. It is also contrary to the policy of the 2002 Act that an RTM company’s acquisition of the right to manage follows automatically from its meeting the procedural requirements, no matter how inconvenient anyone may find that to be. It is not open to a freeholder to protest that the RTM company’s acquisition of the right to manage is inconvenient or will disrupt an established programme of repair work.”
Brynmor’s exposition of the statutory provisions was described as “clear and cogent” and “obviously correct”.
The decision sets an important precedent concerning the interaction of the right to manage and the power to appoint a manager, which is likely to be a valuable tool for leaseholders seeking to take control of their buildings.
Brynmor was instructed by Daniel Long and Eleanor Longworth of Woodcocks Haworth & Nuttall.