Issue No. 107 Winter 2013
contrasted with the 1967 Act, where provision is made in the case of a “material part” overhanging or overlapping.
b) The relevant services provided for occupiers of that part must either:
(i) Be provided independently of the relevant services provided for occupiers of the remainder of the building; or
(ii) Be capable of being provided as per (a), above, without involving the carrying out of works likely to result in a significant interruption in the provision of services for occupiers of the remainder of the building.
2. The premises must contain two or more flats held by qualifying tenants.
A “flat” is defined as 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 as a dwelling; and
c) either the whole or a material part of which lies above or below some part of the building.
The word “separate” suggests both “physically separate” or “set apart” and “single” or “regarded as a unit”. The definition is concerned with the physical configuration of the rooms. The question is one of fact and degree and largely one of impression – the degree of proximity of any part of the premises which is not contiguous is likely to be decisive.
3. The total number of flats held by qualifying tenants must be not less than two thirds of the total number of flats contained in the premises.
A flat is let to a qualifying tenant where it is let on a “long lease” (i.e. for a term of over 21 years).
This condition would be relevant where, for example, half of the flats were let on short term leases. All of your “flats” are let on long leases, so this condition will not pose a problem.
Excluded Premises Three types of premises are excluded from collective enfranchisement:
1. Premises which include non-residential parts exceeding 25 per cent of the total internal floor area of the premises (taken as a whole, but excluding common parts);
2. Premises which satisfy three conditions: (i) they are not and do not form part of
A person is a qualifying tenant of a flat if he is tenant of that flat under a long lease. There are several types of lease which are regarded as “long leases”. The most common category is a lease granted for a term exceeding 21 years. Your leases all satisfy this condition.
There are exceptions, such as business leases and unlawful sub-leases, but these do not apply here.
If a person satisfies the condition for being a qualifying tenant (alone or with others) of three or more flats in any particular premises consisting of the whole or part of a building, then he shall not be considered to be a qualifying tenant of any of those flats. I do not believe that this will be an issue in your case (but please advise).
Procedures & Key Dates Your claim is initiated by the service of an Initial Notice, pursuant to section 13 of the 1993 Act. This will be given to the freeholder, any intermediate landlord and any third party to your leases.
Once the Initial Notice has been served, the freeholder (who is empowered to act on behalf of each of the intermediate landlords) has two months to serve a Counter Notice either admitting or denying the right.
If the Counter Notice denies the right, you
Federation of Private Residents’ Associations Newsletter 11
a purpose built block of flats; (ii) the same person has owned the freehold since before the conversion of the property into flats; and (iii) he or an adult member has occupied a flat contained in the premises as his only or principle home throughout the period of 12 months ending with its conversion.
3. Premises which include a railway track.
None of the above apply to your properties, as far as I am aware. Tenancies Qualifying
have two months to apply to the County Court for a declaration that you have the right to acquire the freehold. If the County Court gives a declaration to this effect, then they will order the freeholder to serve a notice admitting the right by a specified date.
If the Counter Notice admits the right, it will also contain a range of counter- proposals; including a counter-proposal in respect of the purchase price(s) and the provisions the freeholder requires to be included in the Transfer of the freehold.
Prior to serving the Counter Notice, the freeholder will want to inspect the property for valuation (and possibly other) purposes and it is their right to do so, on giving not less than 10 days notice. If the freeholder fails to serve a valid Counter Notice within the relevant time frame, you may apply to the County Court for an order to acquire the freehold (a vesting order) on the terms proposed in your Initial Notice.
Either party may apply to the FTT to determine the terms of acquisition (which will include the purchase price and the terms of the Transfer) after two months following the service of the Counter Notice.
You have six months following the service of the Counter Notice to either agree the terms of acquisition or apply to the FTT to determine the same, failing which your claim is deemed to have been withdrawn (and you can’t re-serve for a period of 12 months).
Once the terms of acquisition have been either agreed or determined by an FTT, you have a further period of four months within which to complete the Transfer of the freehold into the name of your nominee purchaser. If you do not either complete the transaction or apply to the County Court for a vesting order within this timeframe, your claim will be deemed to have been withdrawn.
Costs The participating leaseholders will be responsible for certain costs incurred by the landlord, in connection with the claim. These costs must be reasonable, and certain costs are not recoverable (e.g. costs incurred in connection with negotiations and/or proceedings before a First Tier Tribunal).
FPRA is in the process of updating it’s booklet on this subject which will be a free download for members.
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