Compulsory Acquisition of the Freehold
It was our managing agent who suggested that we might like to try for compulsory acquisition under s33 of the Landlord and Tenant Act 1987 because we had been led to believe that our freeholder was deceased. We could use the RTM Company as the purchasing vehicle to mitigate costs if the percentage of qualifying leaseholders agreed. The only people we could approach were the family solicitors and if they failed to respond we could apply to the LVT (now the FTT) to enforce our request to purchase. On the other hand, if we did get a response and the offer was rejected we would actually discover who the freeholder was because the Land Registry showed it as still being owned by our (assumed deceased) freeholder.
The criteria for this right is that:
- There are two or more flats;
- Leaseholders who own more than two flats in the development are not included,
- Two thirds of the flats are owned by qualifying tenants;
- The required majority of the qualifying tenants make the application.
The right does not apply if:
- Less than half the flats in the block are let on long leases (which are not business leases);
- There is a resident landlord.
One Last Investigation
So, before we took this route I decided again to investigate our former freeholder. As my local authority had been involved with our block on a number of different issues, I asked what they could do. They responded by issuing a Notice to the family solicitor under s16 of the Local Government (Miscellaneous Provisions) Act 1976 which was a legal notice intended to obtain particulars of persons interested in land. The law required the notice recipient to comply with the request. Failure to do so constituted an offence.
Unfortunately, whilst the family solicitor did reply he stated that ‘the s16 notice did not apply to him’. What this meant was that when the local authority considers that it ought to have information connected with any land, it can a) serve notice on the the occupier of the land, b) any person who has an interest in the land either as freeholder, mortgagee or lessee or who directly or indirectly receives rent for the land, and c) any person who, in pursuance of an agreement between himself and a person interested in the land, is authorised to manage the land or to arrange for the letting of it. He said he did not fall within any of those categories.
The response was unsurprising but it did not however detract from the fact that we DID have the legal right under s3 of the Landlord and Tenant Act 1985 (duty to inform tenant of assignment of landlord’s interest) to expect that someone would have sent us a notice advising us of any change of freeholder.
I rang the Legal Complaints Service of the Law Society to ask for advice regarding the solicitors response to the notice and was advised that they were under no obligation to provide the information to any third party (us) unless instructed to do so by his own clients (i.e. family members of the freeholder).
I passed this information back to the council but reminded them that we did not receive official notification of our freeholder’s death. It only came up in a conversation I’d had with the former buildings insurer a few years previously. All our I didn’t think his death would have even been registered in this country because whilst I had tracked him down to an address in Pakistan through the internet I still could not get concrete proof of whether he was alive or dead. Nor did I find out why there was such secrecy surrounding the issue.
So, still no concrete proof one way or the other and we still had to prove that we had made every attempt to find him. This meant:
- A notice of claim being served on the freeholder’s last known address or the same notice served in the London Gazette or a local paper;
- A request sent to the court to dispense with the serving of a notice;
- The Land Registry searched to make sure that the freeholder no longer owns his last known address, has moved to an unknown address or the services of an Enquiry Agent has been engaged;
- Witness statements provided confirming that a visit to the Freeholder’s last known address yielded no forwarding address, or;
- An absent freeholder title indemnity policy that a recent purchaser of a flat may have taken as a condition of securing the mortgage.
- Witness statements confirming that a visit to the freeholder’s last known address did not provided a forwarding address.
We could not serve a preliminary notice ahead of applying to the court so our managing agent made a request for that part of the requirements be dispensed with. An application was then made for a Vesting Order under the Leasehold Reform, Housing & Urban Development Act 1993 to the County Court, on a CPR Part 8 application form which required us to satisfy the court that all reasonable steps to locate the freeholder had failed as per the above.
Our case was proved and the Court issued a judgment setting out that a) we could acquire the freehold with funds to be ‘vested’ in the Court and b) deferring the case to the FTT for determination of a ‘reasonable’ premium.
There is currently £10 waiting for our ‘absent’ freeholder should he return from the dead!