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Caretaker's flat was part of 'common parts'

15 November 2010

A caretaker’s flat in the basement of a mansion block in Knightsbridge was part of the “common parts” and could be bought by the tenants under the enfranchisement process, the Court of Appeal has ruled.

Under the Act, tenants have the right to acquire “any common parts of the relevant premises” where the acquisition is “reasonably necessary for the proper management or maintenance” of those parts.

Counsel for the Earl of Cadogan attempted to define “common parts” under section 2(1)(b) of the Leasehold Reform Act 1993 as parts to which the lessees had access.

Giving judgment in Earl of Cadogan v Panagopoulos [2010] EWCA Civ 1259, Lord Justice Carnwath said the property, in Cadogan Square, consisted of five converted flats and a basement, used partly for the caretaker’s flat.

“It is true that the common benefit consists principally in the services of the caretaker as a person rather than the use of the flat itself,” he said. “However, a resident caretaker requires a flat designated for the purpose.”

Carnwath LJ said limiting the common parts of the building to those over which the tenants had access would be an “unjustified restriction on the natural meaning of the definition”.

Counsel for the Earl of Cadogan also argued that statutory acquisition of the flat was not necessary, either because the estate had indicated a willingness to negotiate terms to make it available or because it could have been provided in another flat.

“I see nothing in either point,” Carnwath LJ said. “First, the willingness of the freeholders to negotiate alternative terms cannot be relevant in determining the extent of the statutory right.

“Secondly, once the existing caretaker’s flat has been identified as ‘common parts’ the only issue is whether acquisition of that part is necessary for its management. The fact that the service might be provided elsewhere is irrelevant.”

Lord Justice Carnwath dismissed the Earl of Cadogan’s appeal. Lord Justice Hughes and Sir Andrew Morritt, Chancellor of the High Court, agreed.

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