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ePaper created 2015-05-28, 18:34:54 | version 1.33.0
Michael Roskell Solicitor Residential Real Estate m.roskell@pglaw.co.uk 020 7591 3355 In the context of collective enfranchisement claims made under the Leasehold Reform, Housing and Urban Development Act 1993 (“the 1993 Act”), the extent to which the tenants may acquire the caretaker’s flat within their building has been the subject of developing case law over recent years. A question to be clarified was whether the definition of common parts could include a caretaker’s flat. Leasebacks The 1993 Act entitles the tenants to acquire the freehold of the whole of the building which contains their flats. This will include the common parts which are available for shared used or benefit. The landlord may request 999 year leasebacks of certain units. Mandatory leasebacks are to be made in respect of secure tenancies and lettings by housing associations. Generally the most commonly granted non–mandatory leasebacks are of premises which are not let to qualifying tenants at the date of the claim. These will include flats let on short term tenancies, lettings of commercial units or flats which are in hand to the freeholder. But what about a caretaker’s flat? Common parts It was held by the Court of Appeal in the case of Earl Cadogan v Panagopoulos [2010] EWCA Civ 1259 that a flat which accommodates a caretaker who services the building at the date of the claim can be treated as a common part. Whilst the common benefit was primarily in the services of the caretaker as an individual rather than in the use of the flat itself, section 101(1) of the 1993 Act defines common parts as including any common facilities within them. The provision of a resident caretaker with a flat for that caretaker’s use was regarded as a facility within that definition. Obligation to provide resident caretaker In Panagopoulos some of the leases contained an obligation on the part of the landlord to provide a resident caretaker in the building and so the nominee purchaser acquiring the freehold interest needed to acquire the caretaker’s flat in order to fulfil the obligations under those leases. However although the case did not turn on the point, the judgment considered that it was not necessary for there to be a legal obligation to provide a resident caretaker in order for the flat to be regarded as a common facility within the definition of the 1993 Act. Use test rather than obligation In the recent case of Merie Bin Mahfouz Company (UK) Ltd v Barrie House (Freehold) Ltd [2014] UKUT 390 (LC) a decision of the Upper Tribunal confirms this view. The landlord claimed a leaseback of the caretaker’s flat which was occupied by the caretaker at the date of the claim. Following Panagopoulos it was deemed to be a common part. In this case there was no obligation on the part of the landlord to any of the tenants to provide a resident Who takes care of the caretaker’s flat?! 14 pg lore summer 2015 02075913355