Defendant tenant serving notice of enfranchisement - House of Lords ruling that house and mews separate for purposes of enfranchisement - whether defendant needing to amend original notice of claim - whether entitled to serve notice of claim in respect of mews house

Howard de Walden Estates Ltd v Malekshad; ChD; Mr Justice Neuberger; 19 December 2003

The claimant was the lessor of a large house converted into flats and an adjoining smaller mews house.

Part of the basement of the main house extended beneath the mews house.

In 1997, before the lease expired, the defendant lessee served a notice of enfranchisement to acquire the freehold of the property under the Leasehold Reform Act 1967.

In the schedule to the notice, the properties were described as a 'house and premises'.

The landlord challenged that claim on the grounds, among other things: that the two properties, taken together, did not constitute a 'house' for the purposes of the 1967 Act; neither, taken separately could constitute a 'house' under the Act; if the main house did constitute a 'house', the mews house could not then be enfranchised because it would not constitute 'premises'.

The House of Lords found that the two properties were separate dwellings for the purposes of the 1967 Act and that, subject to proving his case, the tenant could enfranchise the main house but not the mews house.

By this time, the lease had expired.

The tenant served a second notice of claim on the ground that he was entitled to enfranchise the main house.

Incidental to that notice, he applied to amend the original notice by deleting the references to the mews house.

The issues for the court were, among other things, whether: the tenant was required to amend the first notice of claim; such an amendment was merely an administrative act; and the second notice was valid despite its service after the contractual expiry of the lease.

Judith Jackson QC and Timothy Harry (instructed by Speechly Bircham) for the claimant; Paul Morgan QC (instructed by Mishcon de Reya) for the defendant.

Held: appeal dismissed.

On a natural reading of paragraph 6(3) of the 1967 Act, a distinction was made between the inaccurate description of a property in a notice of claim, which would not invalidate it, and the erroneous exclusion or inclusion of property, which would.

The effect of a tenant's notice of claim under the 1967 Act was to deprive the landlord, against his will, of the property comprised in the tenancy.

Therefore, the law required such a notice to reflect, in wholly accurate terms, that which the tenant was entitled to acquire.

Thus, it was necessary for the tenant to amend the first notice of claim.

Such an amendment was more than a simple administrative act, given that the court had the jurisdiction to refuse an amendment or to impose terms on it, but each case was to turn on its own particular facts.

In the instant case, the landlord had maintained, among other things, that, given the considerable delay in resolving the issues, the relevant valuation date for the property should have been amended so as to reflect the value as at the date the notice had been amended pursuant to the permission of the court: that is, 2003, rather than the date in 1997 when the notice had been served.

On the evidence, however, the landlord's delay in dealing with the tenant's claim for the acquisition of the main house was not caused by the fact that the 1997 notice referred to the mews house; even if the 1997 notice had not required amendment, and had correctly referred solely to the main house, there was no reason for believing that the delay would not have occurred.

On that basis, the landlord's argument failed.

The tenant was entitled to acquire the property at the price fixed by statutory formula, which was the relevant date in 1997.

The tenant could not have served a valid notice of claim under section 1(1) of the 1967 Act unless the tenancy of the lease was being continued in some way.

However, paragraph 3(1) of the 1967 Act effectively continued the tenancy under the same terms as in the original tenancy.

The present form of the 1967 Act deleted the residence requirement.

The tenant was required only to have leased the house under a long tenancy.