|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bolton & Ors v St Anselm Development Company Ltd  EWCA Civ 27 (22 January 2014)
Cite as:  EWCA Civ 27
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
His Honour Judge Hand QC.
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McCOMBE
SIR STANLEY BURNTON
| SARAH CLARE BOLTON(Flat 8)
JOHN M HARPER & JUDITH HARPER (Flat 22)
SIR DAVID MICHELS (Flat 23)
|- and -
(1) JONATHAN READE GODWIN-AUSTEN
(2) SUSAN MARILDA MARTELL
(3) VISCOUNTESS SALLY-ANN FITZHARRIS
(4)ST ANSELM DEVELOPMENT COMPANY LTD.
|ST ANSELM DEVELOPMENT COMPANY LTD
|- and -
|SARAH CLARE BOLTON
JOHN M HARPER & JUDITH HARPER
SIR DAVID MICHELS
JONATHAN READE GODWIN-AUSTEN
SUSAN MARILDA MARTELL
VISCOUNTESS SALLY-ANN FITZHARRIS
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Gary Cowen (instructed by Guy Clapham & Co) for the fourth Respondent in the first appeal and for the Appellant in the second appeal.
Mr Kevin Farrelly (instructed by Hunters) for the other Respondents in both appeals.
Crown Copyright ©
Lord Justice McCombe:
"Subject to the provisions of this Chapter (and in particular to the provisions as to rent and duration contained in section 56(1)) the new lease…shall be on the same terms as the existing lease but [with certain modifications which do not apply here] ".
(B) Background Facts
"to pay the rent reserved by the Headlease and to comply with the lessee's covenant therein contained save insofar as the same are the responsibility of the Lessee under these presents."
"to pay the Interim Charge and the Service Charge at the times and in the manner provided in the Third Schedule".
"all costs, charges, expenses and outgoings expended or incurred by the Lessor in any financial year in complying with its obligations under clause 4 other than in paying in each year the first four thousand pounds of the annual rent reserved by the Headlease".
"(1) …an amendment to paragraphs 1(a)(i) of the Third Schedule so as to delete the words 'first four thousand pounds of the'…"
A similar proposal was made in respect of the leases of the car park spaces.
"5. Save as specified in paragraph 6 below the proposals contained in the Tenant's Notice are acceptable.
6. The following proposals contained in the Tenant's Notice are not acceptable and the Landlord's counter-proposals are as follows:-
Tenant's proposal The premium specified in accordance with Section 42(3)(c) of the Acts is £176,914.00.
Landlord's counter proposal The premium to be paid to be £227,282.00 of which £57,381.00 represents the other landlord's share.
Tenant's proposal A term of years equal to the unexpired period of the existing terms under Car Parking Space Lease plus ninety years' lease extension at a peppercorn rent and otherwise on the same terms as the Leases (i.e. that the new lease be on the same terms as the current flat lease in respect of the flat and on the same terms as the car parking space lease in respect of the car parking space) subject to such modification as permitted by section 57 of the Act and subject to the following:-
(1) As to the lease dated 4 November 2004, an amendment to paragraph 1(a)(i) of the Third Schedule so as to delete the words, 'first four thousand pounds of the'.
(2) As to the lease dated 23 December 2005, an amendment to paragraph 12 of the Third Schedule so as to delete the words, 'first £4,000 of the '.
Landlord's counter-proposal The new leases terms should contain such modifications and amendments as the Landlord is entitled to under and/or as may be necessary to give effect to the requirements of Chapter II of Part I of the Act and without prejudice to the generality of the above such further reasonable modifications to be agreed."
"Without prejudice to the validity of the counter-notice
Thank you for your letter of 9 February, enclosing your client's counter-notice.
Our client wishes to accept all counter-proposals contained in your client's counter-notice.
We look forward to receiving the draft new lease."
"Leasehold Reform, Housing and Urban Development Act 1993 (as amended)
Flats 22, 23 and 8 17 Clarges Street London W1J 8AE
Without prejudice to the validity of the counter-notice as to which the Tenant's position is fully reserved
We refer to our letters of 13 April in relation to the above matters.
We are disappointed to note that you have not provided us with a draft lease. We have received our clients' instructions to make a court application pursuant to section 48(3) of the Act at the earliest opportunity. We therefore look forward to hearing from you by return failing which we will apply to court for vesting orders."
In response, the freeholders' solicitors wrote on 6 June 2011 in these terms:
"Flats 8, 22 & 23, 17 Clarges Street London
Thank you for your letter of 3 June. We will provide you with the draft leases for approval shortly.
In the meantime, we note the threat of an application to the Court pursuant to section 48(3) of the Act.
To enable us to understand your client's position, is it your client's contention that "all of the terms of acquisition" have been agreed between the parties, notwithstanding that the form of the leases has not been agreed?"
On 8 June 2011, the tenants' solicitors replied:
"Leasehold Reform, Housing and Urban Development Act 1993 (as amended)
Flats 22, 23 and 8 17 Clarges Street London W1J 8AE
Without prejudice to the validity of the counter-notice as to which the Tenant's position is fully reserved
Thank you for the facsimile of 6 June.
Yes, our clients accepted all the terms of your client's counter-notices by way of our letters of 13 April. Accordingly the terms of acquisition were agreed on this date, 13 April. The appropriate period lapses on 12 June and our application under section 48(3) of the Act may then be made during the period 13 June to 12 August 2011.
The form of the new lease is dealt with under the Leasehold Reform Regulations 1993. You will be aware the landlord is obliged to provide the tenant with a draft lease within the period of 14 days beginning with the date the terms of acquisition are agreed in accordance with paragraph 7(1) of Schedule 2. We have, to date, failed to receive draft leases.
We therefore invite you to provide us with draft leases within the next 7 days failing which we shall advise our clients to issue Court applications."
The freeholders' solicitors reacted in these terms:
"Flats 8, 22 & 23 17 Clarges Street, London
Thank you for your letter of 8 June and note that you contend that the terms of acquisition were agreed on 13 April.
We are aware of the provisions of the 1993 Regulations with regard to the preparation of a draft lease, but this does not seem wholly consistent with Section 48(1) of the 1993 Act. The Leasehold Valuation Tribunal only has jurisdiction to resolve disputes where "the terms of acquisition remain in dispute". If, as you contend, the terms of acquisition have already been agreed prior to the submission of a draft lease, then how do you propose that any dispute with regard to the form of lease would be resolved, if the form cannot be agreed between the parties?
In any event, as we have previously indicated we will provide you with the draft leases for approval shortly and at least by the end of this week."
"We write further to our email of yesterday morning and enclose herewith copies of the draft Leases for the above mentioned properties.
As advised in our emails, we reserve our clients' position as to whether the terms of acquisition have been agreed pending the agreement of the form of the Leases."
"Without prejudice to the validity of the counter-notice as to which the Tenant's position is fully reserved
We refer to our letter of 22 June and note we have not received a response from you.
We refer you to paragraphs 7(4) and 7(5) of the Leasehold Reform Regulations 1993 and accordingly you are deemed to have approved our amendments to the draft leases.
Accordingly we look forward to receiving engrossments of the new leases incorporating our amendments."
"Thank you for your letter of 1 August and note that you intend applying to the Court for a vesting order pursuant to Section 48(3) of the 1993 Act.
We have previously informed you that we do not consider that the 1993 Regulations are applicable as the terms of the acquisition have yet to be agreed, so that there has been no deemed approval of the form of lease. Under Section 48(7) of the 1993 Act, the terms of acquisition include "the terms to be contained in the lease" and it is clear that these have not been agreed and so there is no basis for an application to the Court under Section 48(3). In any event, the form of the leases has not yet been approved by the intermediate landlord, St Anselm.
In applying to the Court, please confirm that it remains your contention that the terms of acquisition were agreed on13 April 2011 and that the application is to be made on this basis i.e. on the terms alleged then agreed.
If so, the terms of acquisition purportedly agreed were on the basis of the premiums set out in the counter notices and on the basis of leases on the same terms as the existing leases i.e. to include, by way of example, the provision for the head rent to be paid as part of the service charge (as reproduced in clause 31.8 of Schedule 5 of the draft lease submitted on 13 June 2011). However, you have purported to amend the draft by deleting this clause and, therefore, you appear to be now contending for quite different terms to those which you have previously claimed to have been agreed on 13 April 2011.
It remains our client's position that the terms of acquisition have not been agreed and, if as you state, an impasse has been reached, then any issue with regard to the form of the leases should be determined by the Leasehold Valuation Tribunal. Your amendments are not in accordance with Section 37 of the Act (sic) and inconsistent with the terms allegedly agreed on 13 April 2011.
Accordingly, the issue of proceedings under Section 48(3) is premature and we will apply for the proceedings to be struck out."
"Without prejudice to the validity of the counter-notice as to which the Tenant's position is fully reserved
We refer to the above matters and your letter of 2 August.
The counter-notice proposed the terms your client wanted to be included in the new lease. By way of our letter of 13 April, your proposal was agreed without reservation. There has been no dispute since. The terms to be included in the new lease are agreed; the form of the lease is a different matter but in any case that was deemed agreed under the Regulations when you failed to respond to our observations in time.
The failure to enter into the lease is entirely because your client is seeking to include in the form of the new lease a term which they expressly proposed be omitted, namely the obligation to pay the head rent. That is rent, which section 56(1) requires not to be in the new lease, and which therefore your counter-notice expressly and correctly proposed be omitted. We do not believe this can be disputed, but to put the matter beyond doubt we enclose copy rent demands from the head-lessee for this sum. The actual service charge, as you know, is collected by the RTM company and invoiced by it accordingly.
Section 45 requires that a landlord make counter-proposals for the terms of the lease. Merely proposing that things be agreed later is not such a proposal. If your position is that despite our unreserved acceptance of the counter-notice proposals there was nevertheless no agreement of the terms of the new lease, then it follows that you are saying your counter-notice failed to make proposals for the terms of the new lease as required by section 45. If so, it is invalid on your own case. Our claim will include an alternative claim under section 49(1) to cover this eventuality.
Either way, our clients will succeed. Your threat to apply to strike out the claim is pointless - there is no dispute of fact of which we are aware; any application to strike out will simply require the Court to decide the merits of the claim."
(C) The Judgment
"in my judgment the court is entitled to approach the factual material, even on a Part 8 application with a degree of common sense and robustness. I think the Claimants and their advisers well understood from the terms of the Counter-Notice and from the rejection of their suggested modifications to the service charge clause proposed in their section 42 Notice that the freeholder did not accept the "rent as service charge" clause must be excluded from the new lease."
Somewhat later he said:
"Ultimately it is both a question of fact and a matter of construction as to whether there was a completed and final agreement on this part of the counter proposal. It was clearly proffered on the basis that the statute either entitled the Landlord to include the "rent as service charge" clause or required it be included. It seems to me equally clear that it was accepted on the basis that the statute had the opposite effect and precluded its inclusion. If that is a fair characterisation of the respective positions I also conclude that on this aspect of the counter proposal these terms of acquisition have not been agreed and I do not think that construction of the counter proposal against the factual matrix of the later correspondence leads to a different conclusion."
(D) The Appeals and my conclusions
"The judge found as a fact that looked at objectively having regard to the surrounding factual matrix, the freeholder's offer was made on the basis that the 'rent as service charge' provision would be included in the new leases and was accepted on the basis that it would not be included in the new leases. The mere fact that a letter is sent saying to the effect, 'I accept your proposal' does not amount to a true agreement if it is clear that the acceptance is on an entirely different basis from the original offer."
(See paragraph 17 of Mr Cowen's skeleton argument.)
"which is undoubtedly seized [sic: seised] of jurisdiction to determine the terms of the new leases would be deprived of such jurisdiction on the basis that terms of acquisition had been agreed whereas the Court on an application to determine the form of the lease which best reflects the agreement previously reached and which is intended to deal only with issues of drafting under s.48(3) would actually be required to determine whether an important provision should be included in the lease at all or not." (Emphasis in the original, Loc. Cit. paragraph 20.)
"There was no uncertainty in what was being proposed [in the Counter Notices]. The freeholder's counter proposal was in the context of an express rejection of a proposal to remove the 'rent as service charge' provision. It would have been wholly inconsistent for the freeholder to have rejected in its counternotice the proposal made in the initial notice that the 'rent as service charge' provision should be removed and then made a 'counterproposal by reference to s.56 and 57 of the 1993 Act which was in effect, merely a restatement of the lessee's proposal. On the contrary, the express rejection of that proposal together with the counterproposal as to premiums…demonstrated clearly exactly what proposal was being made by the freeholder in relation to the 'rent as service charge provision, namely that it should be retained. The learned Judge was right to hold that the nature of the counterproposal could be objectively identified from the counternotice and that the lessees' solicitors were well aware of what was being proposed in the counternotice.
The counternotice was therefore neither ambiguous nor uncertain in this respect. There was a clear counterproposal which everyone understood." (Loc. Cit. paragraphs 24 and 25.)
"…the last part of the counter proposal was not capable of being converted into an agreement about the "terms of acquisition" by the process of what might be termed 'mere acceptance'. It still left too much to be agreed. "
"To my mind the Counter-Notice must be clear as to its proposals but its validity does not depend upon its finality as an offer."
"A landlord who intends to admit the tenant's right to acquire a new lease, but who wishes to advance counter-proposals as to the terms of acquisition, must serve a counter-notice which (a) states that the landlord does admit the right, (b) states which of the proposals contained in the tenant's notice are accepted by the landlord, (c) states which of the proposals contained in the tenant's notice are not accepted by the landlord, and (d) specifies, in relation to each proposal which is not accepted, the landlord's counter-proposal. Again, failure to take those steps will enable the tenant to apply to the court, under section 49(1), for an order determining that the terms of acquisition shall be in accordance with the proposals contained in the tenant's notice."
The Lord Justice continued at paragraphs 18 and 19 as follows (page 266 A-F),
"18. The importance of the landlord's counter-notice to the proper working of the statutory scheme is reflected in the language of section 45(2) and (3) of the Act. The counter-notice must comply with the requirements in one or other of paragraphs (a), (b) or (c) in subsection (2). It must state whether the landlord admits or does not admit, that the tenant had the right to acquire a new lease. If the counter-notice complies with the requirement in subsection (2)(a) – that is to say, if it does state that the landlord admits the right – subsection (3)(a) requires that it must in addition state which (if any) of the proposals contained in the tenant's notice are accepted by the landlord and which are not so accepted; and subsection (3)(b) requires that it must specify, in relation to each proposal which is not accepted, the landlord's counter-proposal. The words which I have emphasised are mandatory and specific. There is good reason why they should be. The proper working of the statutory scheme requires that the tenant is left in no doubt as to what the landlord admits, how far the tenant's proposals are accepted, and what (if any) are the landlord's counter-proposals. . Further, the importance of the statement which subsection (2)(a) requires, as an admission, is emphasised by subsection (5) of section 45 of the Act.
"19. In my view the answer to the question "what does section 45(2)(a) of the 1993 Act require?" is not open to doubt. If a notice is to comply with the requirement under that paragraph it must state that the landlord admits that the tenant had on the relevant date the right to acquire a new lease of his flat. Further, the notice must state which (if any) of the proposals contained in the tenant's notice are accepted by the landlord, as well as stating which of those proposals are not accepted and specifying, in relation to each proposal which is not accepted, the landlord's counter-proposal. Section 45(2)(a) must be read in conjunction with section 45(3) of the Act."
Sir Stanley Burnton
"The new leases terms should contain such modifications and amendments as the Landlord is entitled to under and/or as may be necessary to give effect to the requirements of Chapter II of Part I of the Act and without prejudice to the generality of the above such further reasonable modifications to be agreed."
Lord Justice Goldring
Leasehold Reform, Housing and Urban Development Act 1993
39 Right of qualifying tenant of flat to acquire new lease.
(1)This Chapter has effect for the purpose of conferring on a tenant of a flat, in the circumstances mentioned in subsection (2), the right, exercisable subject to and in accordance with this Chapter, to acquire a new lease of the flat on payment of a premium determined in accordance with this Chapter.
(2)Those circumstances are that on the relevant date for the purposes of this Chapter—
(a)the tenant has for the last two years been a qualifying tenant of the flat;...
40 The landlord for the purposes of this Chapter.
(1)In this Chapter "the landlord", in relation to the lease held by a qualifying tenant of a flat, means the person who is the owner of that interest in the flat which for the time being fulfils the following conditions, namely—
(a)it is an interest in reversion expectant (whether immediately or not) on the termination of the tenant's lease, and
(b)it is either a freehold interest or a leasehold interest whose duration is such as to enable that person to grant a new lease of that flat in accordance with this Chapter,
and is not itself expectant (whether immediately or not) on an interest which fulfils those conditions.
(2)Where in accordance with subsection (1) the immediate landlord under the lease of a qualifying tenant of a flat is not the landlord in relation to that lease for the purposes of this Chapter, the person who for those purposes is the landlord in relation to it shall conduct on behalf of all the other landlords all proceedings arising out of any notice given by the tenant with respect to the flat under section 42 (whether the proceedings are for resisting or giving effect to the claim in question).
(3)Subsection (2) has effect subject to the provisions of Schedule 11 to this Act (which makes provision in relation to the operation of this Chapter in cases to which that subsection applies).
(4)In this section and that Schedule—
(a)"the tenant" means any such qualifying tenant as is referred to in subsection (2) and "the tenant's lease" means the lease by virtue of which he is a qualifying tenant;
(b)"the competent landlord" means the person who, in relation to the tenant's lease, is the landlord (as defined by subsection (1)) for the purposes of this Chapter;
(c)"other landlord" means any person (other than the tenant or a trustee for him) in whom there is vested a concurrent tenancy intermediate between the interest of the competent landlord and the tenant's lease. …
42 Notice by qualifying tenant of claim to exercise right.
(1)A claim by a qualifying tenant of a flat to exercise the right to acquire a new lease of the flat is made by the giving of notice of the claim under this section.
(2)A notice given by a tenant under this section ("the tenant's notice") must be given—
(a)to the landlord, and
(b)to any third party to the tenant's lease.
(3)The tenant's notice must—
(a)state the full name of the tenant and the address of the flat in respect of which he claims a new lease under this Chapter;
(b)contain the following particulars, namely—
(i)sufficient particulars of that flat to identify the property to which the claim extends,
(ii)such particulars of the tenant's lease as are sufficient to identify it, including the date on which the lease was entered into, the term for which it was granted and the date of the commencement of the term, …
(iii) and (iv). . .
(c)specify the premium which the tenant proposes to pay in respect of the grant of a new lease under this Chapter and, where any other amount will be payable by him in accordance with any provision of Schedule 13, the amount which he proposes to pay in accordance with that provision;
(d)specify the terms which the tenant proposes should be contained in any such lease;
(e)state the name of the person (if any) appointed by the tenant to act for him in connection with his claim, and an address in England and Wales at which notices may be given to any such person under this Chapter; and
(f)specify the date by which the landlord must respond to the notice by giving a counter-notice under section 45.
(4). . . .
(4A)A notice under this section may not be given by the personal representatives of a tenant later than two years after the grant of probate or letters of administration.
(5)The date specified in the tenant's notice in pursuance of subsection (3)(f) must be a date falling not less than two months after the date of the giving of the notice. …
45 Landlord's counter-notice.
(1)The landlord shall give a counter-notice under this section to the tenant by the date specified in the tenant's notice in pursuance of section 42(3)(f).
(2)The counter-notice must comply with one of the following requirements—
(a)state that the landlord admits that the tenant had on the relevant date the right to acquire a new lease of his flat;
(b)state that, for such reasons as are specified in the counter-notice, the landlord does not admit that the tenant had such a right on that date;
(c)contain such a statement as is mentioned in paragraph (a) or (b) above but state that the landlord intends to make an application for an order under section 47(1) on the grounds that he intends to redevelop any premises in which the flat is contained.
(3)If the counter-notice complies with the requirement set out in subsection (2)(a), it must in addition—
(a)state which (if any) of the proposals contained in the tenant's notice are accepted by the landlord and which (if any) of those proposals are not so accepted; and
(b)specify, in relation to each proposal which is not accepted, the landlord's counter-proposal.
48 Applications where terms in dispute or failure to enter into new lease.
(1)Where the landlord has given the tenant—
(a)a counter-notice under section 45 which complies with the requirement set out in subsection (2)(a) of that section, or
(b)a further counter-notice required by or by virtue of section 46(4) or section 47(4) or (5),
but any of the terms of acquisition remain in dispute at the end of the period of two months beginning with the date when the counter-notice or further counter-notice was so given, a leasehold valuation tribunal may, on the application of either the tenant or the landlord, determine the matters in dispute.
(2)Any application under subsection (1) must be made not later than the end of the period of six months beginning with the date on which the counter-notice or further counter-notice was given to the tenant.
(a)the landlord has given the tenant such a counter-notice or further counter-notice as is mentioned in subsection (1)(a) or (b), and
(b)all the terms of acquisition have been either agreed between those persons or determined by a leasehold valuation tribunal under subsection (1),
but a new lease has not been entered into in pursuance of the tenant's notice by the end of the appropriate period specified in subsection (6), the court may, on the application of either the tenant or the landlord, make such order as it thinks fit with respect to the performance or discharge of any obligations arising out of that notice. …
(7)In this Chapter "the terms of acquisition", in relation to a claim by a tenant under this Chapter, means the terms on which the tenant is to acquire a new lease of his flat, whether they relate to the terms to be contained in the lease or to the premium or any other amount payable by virtue of Schedule 13 in connection with the grant of the lease, or otherwise.
49 Applications where landlord fails to give counter-notice or further counter-notice.
(1)Where the tenant's notice has been given in accordance with section 42 but—
(a)the landlord has failed to give the tenant a counter-notice in accordance with section 45(1), or
(b)if required to give a further counter-notice to the tenant by or by virtue of section 46(4) or section 47(4) or (5), the landlord has failed to comply with that requirement,
the court may, on the application of the tenant, make an order determining, in accordance with the proposals contained in the tenant's notice, the terms of acquisition.
56 Obligation to grant new lease.
(1)Where a qualifying tenant of a flat has under this Chapter a right to acquire a new lease of the flat and gives notice of his claim in accordance with section 42, then except as provided by this Chapter the landlord shall be bound to grant to the tenant, and the tenant shall be bound to accept—
(a)in substitution for the existing lease, and
(b)on payment of the premium payable under Schedule 13 in respect of the grant,
a new lease of the flat at a peppercorn rent for a term expiring 90 years after the term date of the existing lease.
(2)In addition to any such premium there shall be payable by the tenant in connection with the grant of any such new lease such amounts to the owners of any intermediate leasehold interests (within the meaning of Schedule 13) as are so payable by virtue of that Schedule. …
57 Terms on which new lease is to be granted.
(1)Subject to the provisions of this Chapter (and in particular to the provisions as to rent and duration contained in section 56(1)), the new lease to be granted to a tenant under section 56 shall be a lease on the same terms as those of the existing lease, as they apply on the relevant date, but with such modifications as may be required or appropriate to take account—
(a)of the omission from the new lease of property included in the existing lease but not comprised in the flat;
(b)of alterations made to the property demised since the grant of the existing lease; or
(c)in a case where the existing lease derives (in accordance with section 7(6) as it applies in accordance with section 39(3)) from more than one separate leases, of their combined effect and of the differences (if any) in their terms.
(2)Where during the continuance of the new lease the landlord will be under any obligation for the provision of services, or for repairs, maintenance or insurance—
(a)the new lease may require payments to be made by the tenant (whether as rent or otherwise) in consideration of those matters or in respect of the cost thereof to the landlord; and
(b)(if the terms of the existing lease do not include any provision for the making of any such payments by the tenant or include provision only for the payment of a fixed amount) the terms of the new lease shall make, as from the term date of the existing lease, such provision as may be just—
(i)for the making by the tenant of payments related to the cost from time to time to the landlord, and
(ii)for the tenant's liability to make those payments to be enforceable by distress, re-entry or otherwise in like manner as if it were a liability for payment of rent. …
(6)Subsections (1) to (5) shall have effect subject to any agreement between the landlord and tenant as to the terms of the new lease or any agreement collateral thereto; and either of them may require that for the purposes of the new lease any term of the existing lease shall be excluded or modified in so far as—
(a)it is necessary to do so in order to remedy a defect in the existing lease; or
(b)it would be unreasonable in the circumstances to include, or include without modification, the term in question in view of changes occurring since the date of commencement of the existing lease which affect the suitability on the relevant date of the provisions of that lease.
90 Jurisdiction of county courts.
(1)Any jurisdiction expressed to be conferred on the court by this Part shall be exercised by a county court.
(2)There shall also be brought in a county court any proceedings for determining any question arising under or by virtue of any provision of Chapter I or II or this Chapter which is not a question falling within its jurisdiction by virtue of subsection (1) or one falling within the jurisdiction of a leasehold valuation tribunal by virtue of section 91. …
91 Jurisdiction of leasehold valuation tribunals.
(1)Any jurisdiction expressed to be conferred on a leasehold valuation tribunal by the provisions of this Part (except section 75 or 88) shall be exercised by a rent assessment committee constituted for the purposes of this section; and any question arising in relation to any of the matters specified in subsection (2) shall, in default of agreement, be determined by such a rent assessment committee.
(2)Those matters are—
(a)the terms of acquisition relating to—
(i)any interest which is to be acquired by a nominee purchaser in pursuance of Chapter I, or
(ii)any new lease which is to be granted to a tenant in pursuance of Chapter II,
including in particular any matter which needs to be determined for the purposes of any provision of Schedule 6 or 13; …
(11)In this section— …
"the terms of acquisition" shall be construed in accordance with … section 48(7), as appropriate;
The Leasehold Reform (Collective Enfranchisement and Lease Renewal) Regulations 1993
Procedure for lease renewal
3. In a transaction undertaken to give effect to a tenant's notice, the landlord and the tenant shall, unless they otherwise agree, be bound by Schedule 2 to these Regulations. …
SCHEDULE 2LEASE RENEWAL
1. In this Schedule—
"counter-notice" means a notice given under section 45, and "further counter-notice" means a notice required by or by virtue of section 46(4) or section 47(4) or (5);
"flat" shall be construed in accordance with section 62(2);
"the landlord" has the meaning given by section 40(1);
"lease" means a lease granted to give effect to a tenant's notice;
"the relevant date" has the meaning given by section 39(8);
"tenant" means a tenant who has given a tenant's notice;
"terms of acquisition" has the meaning given by section 48(7). …
Preparation of lease
7. (1) The landlord shall prepare a draft lease and give it to the tenant within the period of fourteen days beginning with the date the terms of acquisition are agreed or determined by a leasehold valuation tribunal.
(2) The tenant shall give to the landlord a statement of any proposals for amending the draft lease within the period of fourteen days beginning with the date the draft lease is given.
(3) If no statement is given by the tenant within the time specified in sub-paragraph (2), he shall be deemed to have approved the draft lease.
(4) The landlord shall give to the tenant an answer giving any objections to or comments on the proposals in the statement within the period of fourteen days beginning with the date the statement is given.
(5) If no answer is given by the landlord within the time specified in sub-paragraph (4), he shall be deemed to have approved the amendments to the draft lease proposed by the tenant.
(6) The landlord shall prepare the lease and as many counterparts as he may reasonably require and shall give the counterpart or counterparts to the tenant for execution a reasonable time before the completion date.
(7) The tenant shall give the counterpart or counterparts of the lease, duly executed, to the landlord and the landlord shall give the lease, duly executed, to the tenant, on the completion date or as soon as possible afterwards.