Marshall Dixon and others v Wellington Close Management Ltd [2012] UKUT 95 (LC) is, so far as I can tell, the first Lands Tribunal/Upper Tribunal case on s.37, Landlord and Tenant Act 1987. As you’ll know, the 1987 Act gives the LVT power to vary residential leases. It can do this if the lease is defective in some way (s.35) or if the requisite majority of leaseholders agree and n0-more than the specified minority object (s.37 – a sort of qualified majority voting basis). The key provision is s.37(5), which provides that, in a building with more than eight leases, an application “shall only be made” if it is not opposed be more than 10% of the leaseholders and supported by at least 75%.
The case involved 132 leases in a development consisting of three blocks. Variations were proposed so as to extend, inter alia, the repairing covenants of the landlord. At the time of the LVT application, it seems that 10 leaseholders objected to the variation. By the time of the LVT hearing, it was up to 13. That, it was said by the objectors, was more than 10% opposed and, therefore, the application should fail. The LVT rejected this, saying that 13 was “not more” than 10% and that 14 objectors would be needed.
The Upper Tribunal held that the first issue to decide was at what point in time the 10% objection had to be established. The UT held that the key date was when the LVT application was made and that anything after that – whether consent or objection – should be disregarded. Whether someone was objecting was to be assessed objectively. No more than 10% had actively expressed opposition when the application was issued and, hence, the appeal was dismissed.
The UT went on to recomend that the LVT should amend its application forms for variation applications to require applicants to specify how many leases were involved, how many actively consented and how many actively opposed, togehter with an indication of the need to produce evidence to prove that.