Enfranchisement & RTM
Grosvenor (Mayfair) Estate (which concerned a collective enfranchisement claim), the Court of Appeal held that a unit which had not yet been fitted out, and which was not (and had never been) capable of being lived in, was not a “flat” as it had not been “constructed or adapted for use for the purposes of a dwelling”. The term “flat” was considered again in Q Studios (Stoke) RTM Co Ltd v Premier Ground Rents No. 6 Ltd; a case concerning a claim to acquire the right to manage a block comprising 292 “study studios”, designed for occupation by students. Each study studio consists of a bedroom with ensuite facilities and a kitchenette. The units are let on a 250-year lease, a 10-year underlease, and then rented out to students. The students all had the benefit of a shared student lounge, a communal laundrette, and a variety of other facilities. The landlord argued that none of the units were “separate” dwellings, relying on an earlier decision on the meaning of “dwelling” under s.18 of the Landlord and Tenant Act 1985: JLK Ltd v Ezekwe. The upper tribunal in that case held that none of the demised rooms were “dwellings”, because they lacked kitchen facilities and were adapted for use with an adjacent communal living area and kitchen for each set of 5 units. The president of the upper tribunal rejected that argument. A dwelling will only not be a “separate” dwelling if it lacks some essential living accommodation, which is provided elsewhere, on a shared basis. A student lounge which served 292 units could not be considered “living accommodation”. It was more akin to a communal facility, of the sort found in retirement blocks. The decision will be welcome to some leaseholders of student accommodation, but it is important to note that blocks which are constructed in a manner that is similar to the block which was considered in Ezekwe will probably still not qualify, and the prospect of an appeal cannot be ruled out. There are still a number of unanswered questions, and more litigation is bound to follow. Perhaps the Law Commission’s proposal to remove the distinction between “house” and “flat”, and replace it with “residential unit”, will remove the sort of technical arguments that have plagued this area for decades. Or perhaps that is too much to ask for. Only time will tell …
What’s in a name when it’s a flat? Roger Hardwick considers a technical
T he distinction between a “house” and a “flat” is an important one. Subject to satisfying a variety of complex qualifying conditions, leaseholders of houses have the right to acquire the freehold of their house and/or a 50-year lease extension. Leaseholders of flats have (again, subject to certain qualifying conditions) an individual right to a 90-year lease extension, and a collective right to acquire the freehold of their block and/or the right to manage, among other things. Unfortunately, the distinction is far from straight forward. Until recently, the meaning of “house” had received the lion’s share of judicial attention (it has been considered by the highest court in the land on five occasions, and there are still a number of grey areas). In recent months, the spotlight has shifted to the meaning of “flat”. The term “flat” is defined in both the Leasehold Reform, Housing and Urban Development Act 1993 and the Commonhold and Leasehold Reform
explanation that has plagued the profession for decades
Act 2002. The definitions are materially identical (and a similar definition can be found in the Landlord and Tenant Act 1987). A “flat” is a “separate set of premises (whether or not on the same floor) (a) which forms part of a building, (b) which is constructed or adapted for use for the purposes of a dwelling and (c) either the whole of part of which lies above or below some other part of the building”. A “dwelling” is “a building or part of a building occupied or intended to be occupied as a separate dwelling”. In Aldford House Freehold Ltd v
Roger Hardwick is a partner at Brethertons
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