It was suggested to us by Roger Southam that we might like to get the freehold, in this case through compulsory acquisition.
This is a process used where the freeholder is in consistent breach of its management obligations over time. It comes under s33 of the Landlord and Tenant Act 1987 (acquisition order where landlord cannot be found).
I was determined to make one last attempt to confirm our suspicions of the death of the former freeholder as we had not receive official notification. It only came up in a conversation I’d had with the former buildings insurer a few years before. Whilst I had tracked him down to being in prison then to an address in Pakistan 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 I approached the council for some help. The only people left to us that we could realistically approach were the family solicitor. We were hoping that if they failed to respond we could a) apply to the LVT (now the FTT) to enforce our request to buy the freehold and b) if we got a response and the offer was rejected we would at the very least actually discover who a new freeholder might be. Checking the Land Registry showed that the freehold was showing as still being owned by our (assumed deceased) freeholder.
We also had the legal right under s3 of the Landlord and Tenant Act 1985 (duty to inform tenant of assignment of landlord’s interest) and based on that right we expected that someone would have sent us a notice advising us of any change of freeholder.
The council responded by issuing a Notice to the solicitor under s16 of the Local Government (Miscellaneous Provisions) Act 1976, a legal notice intended to get particulars of persons interested in land when the local authority considers it ought to have information connected with any land. The notice can be served on a) 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.
The law required the notice recipient to comply with the request and failure to do so constituted an offence.
Unfortunately, the reply from the solicitor stated that ‘the s16 notice did not apply to him’ as he did not fall within any of those categories, which wasn’t an unsurprising response but I contacting the Law Society to ask for further advice. They advised that the solicitor was 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).
I passed this information back to the council but there was no further help they could offer based on this information.
Nevertheless if we wanted to pursue compulsory acquisition of the freehold we still had to prove that we had made every legally recognised 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.
As we could not serve a preliminary notice ahead of applying to the court our managing agent asked 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 find 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 now £10 waiting for our ‘absent’ freeholder should he return from the dead!
Whilst all this was going on, we also had a frightening number of rental problems, the first of which can be read here.