Ackerman and another v Lay and others [2008] EWCA Civ 1428 (not on Bailli, but available via Lawtel)

The appellants/tenants were the leasehold owners of a building and the respondents were the freehold owners of the same. The building had been subdivided into five flats, one of which was occupied by the appellants.

In 2000, the appellant sought to exercise the right to collective enfranchisement in the Leasehold Reform, Housing and Urban Development Act 1993. This application failed on the grounds that that inter alia, the appellants were not qualifying tenants for the purposes of the 1993 Act.

In 2001, the appellants served a notice under s.42 of the 1993 Act, seeking to compel the respondent to grant them a new lease of the one flat which they occupied. Proceedings in respect of this notice were then stayed.

In 2002, the appellants served a further notice, this time under the Leasehold Reform Act 1967, seeking to acquire the freehold of the property.

The complicating factor was that the original lease had expired on 28 September 2001.

The respondent disputed the right of the appellants to enfranchise under the 1967 Act, contending that, inter alia, there was no longer a right to enfranchise, the underlying lease having expired.

One might have thought that the expiration of the lease would prove fatal to the claim for enfranchisement under the 1967 Act. However, the appellants had a particularly cunning argument to the contrary. They contended that regard had to be had to the notice previously served under s.42 of the 1993 Act.

One of the effects of the service of a notice under s.42 is that, by virtue of Sch. 12, para. 5 of the 1993 Act, the lease is deemed not to  expire through effluxion of time. Thus, it was said that the service of the notice under s.42 had the effect of preserving the lease, such that an application under the 1967 Act could properly be made.

The Court of Appeal roundly rejected this argument. The purpose of Sch. 12, para. 5 was to ensure that the lease of the property in respect of which the s.42 notice was given would continue. The s.42 notice was not given in respect of the building as a whole, but was only given in respect of one flat. Appeal dismissed.