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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Savva & Ors v Galway-Cooper  EWCA Civ 1068 (06 July 2005)
Cite as:  EWCA Civ 1068
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IN THE COURT OF APPEAL (CIVIL DIVISION)
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE CARNWATH
|SAVVA AND OTHERS||Appellants/Appellants|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
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MR A RADEVSKY (instructed by Barron Grey) appeared on behalf of the Respondent
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"References in this Part to the requisite majority of qualifying tenants of the constituent flats are references to qualifying tenants of those flats with more than 50 per cent of the available votes ..."
"the requisite majority of qualifying tenants of the constituent flats may, before the end of the period specified in subsection (2) below, serve a notice ..."
By section 11(2) it is provided:
"The period referred to in subsection (1) is the period of two months beginning with the date by which --
(a) notices under section 3 of the Landlord and Tenant Act 1985 (in this Act referred to as the 1985 Act) relating to the original disposal, or
(b) documents of any other description indicating that the original disposal has taken place
have been served on the requisite majority of qualifying tenants of the constituent flats."
Thus, service of the documents on the requisite majority is the trigger for time to start running. (There was some debate about whether the requisite majority in this context must consist of the same tenants as those who are going to serve the notice; but that issue does not need to be resolved in this case.)
"(1) If the interest of a landlord under a tenancy of premises which consists of or includes a dwelling is assigned, the new landlord shall give notice in writing of the assignment and/or his name and address to the tenant not later than the next day on which the rent is payable under the tenancy or, if that is within two months of the assignment, the end of that period of two months."
That provision is not directly relevant here since the landlord did not assign his interest. Section 5 of the 1987 Act requires a notice in a wider range of circumstances, including circumstances such as here where the landlord has given a lease of part of the common parts.
(1) Lower ground floor
(2) Upper ground floor
(3) First floor
(4) Second floor
(1) Service of documents under 11(2) is intended to provide a defined and workable trigger point for the running of time against the tenants for something they are to do collectively. To achieve this, one would expect the documents to be provided in a manner and form which would fairly alert a reasonably informed tenant to their significance.
(2) The word "served" is used also to describe the notice required by section 3 of the 1985 Act. In that context it describes the "notice in writing" of an assignment which the new landlord is required to "give" to the tenant. A duty to "give notice in writing" implies, to my mind, a formal and specific step.
(3) Although the expression "documents of any other description" is wider than "notice" under section 3, the same term "served" is used to describe both processes. If the draftsman had intended (b) to refer to information obtained by any means from any documentary source, one would not have expected him to use the same word to describe the process. On the contrary, one would have expected a clear contrast to be drawn with the specific notice required under (a).
Order: Appeal allowed. Consideration to be determined by a Leasehold Valuation Tribunal. Costs awarded to the Appellant.