& RTM Enfranchisement
Enfranchisement in a post-Covid world
W hen Covid-19 hit, businesses had to react quickly and, for professional outfits, that meant most of its workforce had to work from home. On the whole, offices were closed, the postal system became unreliable and physical valuations could no longer be undertaken. How on earth were enfranchisement transactions, where hard copy notices needed to be served, going to be handled? Fast forward to July 2020 and whilst our hair may be a little longer than usual, lockdown has been eased and, as a profession we are, in the main, still here and still getting those deals done. Just how has the enfranchisement industry adjusted to this brave new world and more importantly, can it last? Under the 1993 Act, all notices must be “given” by being served on the intended party in writing and by post. The case of Cowthorpe Road 1 – 1A Freehold Ltd v Wahedally [2017] L. & T.R.4, states that because a notice must be sent by post under section 99(1) of the 1993 Act, it can be inferred that a hard copy must be received. Indeed, his Honour Judge Dight further concluded that sending notices by email would only amount to being a copy of that notice and so the original could not be served by email. How could this be achieved whilst offices were closed? Luckily for practitioners, on 30 March ALEP launched its Protocol for Service of Initial Notices and Counter Notices. While the protocol was not
an original being received, at least until the law is changed to catch up with modern practices. The protocol also provided practitioners with the option to request an extension of time for serving counter notice to recognise the difficulties that landlord’s surveyors faced in accessing properties for the purpose of preparing valuations. The RICS issued guidance to its members on 15 May which encouraged the use of remote valuations to provide advice on premiums for initial and counter notices. For more complicated matters, and where desktop valuations were not suitable, the guidance recommended social distancing measures to enable full site valuations to take place, homeowner allowing. In some cases, caveats were put on reports where access was not available. The issues highlighted above are just some of the problems faced by practitioners and what is certain is that never before have we been faced with so many challenges to overcome. It has been empowering but it has also been hard work. I hope that, with ALEPs continued guidance, the industry continues to evolve and changes to the law are effected to enable valid service and signing of enfranchisement documents electronically. The post Covid-19 world changes on a daily basis so watch this space on how the enfranchisement world keeps up.
Louise Uphill examines the practicalities and challenges of valuations and legal practices in the wake of coronavirus
also be successfully adopted for other enfranchisement notices such as right of first refusal, deduction of title and statutory deposit notices to name a few. In following the protocol, practitioners must ensure that the protocol can be adopted with their counterpart and that the recipient provides direct authority to accept service by email. Most practitioners I have dealt with have also required the hard copy original of the electronically served notice to be sent to them by ordinary post. While this was not prescribed by the protocol it is good practice to circumvent the issue of
mandatory, ALEP encouraged its members — including Dutton Gregory Solicitors — to adopt the protocol where possible, to enable transactions to proceed. This protocol was and still is very helpful in allowing practitioners get transactions over the line. It applies to initial notices and counter notices under the 1993 Act but it can
Louise Uphill is a senior associate solicitor at Dutton Gregory Solicitors
17 ISSUE 108
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