Right to acquire communal gardens and other appurtenant property
The participating tenants in a collective claim are entitled to claim in addition to the freehold of the building, the freehold of property which at the relevant date the qualifying tenants are entitled under the terms of their flats leases to use in common. This property may comprise estate roads and paths, a communal garden, a swimming pool, a bin store etc.
Landlord’s right to defeat the claim by offering rights in lieu
However, by s. 1(4) of the Act:
“The right of acquisition in respect of the freehold of any such property . . . shall, however, be taken to be satisfied with respect to that property if, on the acquisition of the relevant premises in pursuance of this Chapter, either-
(a) there are granted by the person who owns the freehold of that property –
(i) over that property …
such permanent rights as will ensure that thereafter the occupier of the flat referred to in that provision has as nearly as may be the same rights as those enjoyed in relation to that property on the relevant date by the qualifying tenant under the terms of his lease;…”
Court of Appeal
In The Corporation of Trinity House of Deptford Strond v 4-6 Trinity Church Square Freehold Ltd  EWCA Civ 764 the Court of Appeal has considered s. 1 (4) for the first time.
In this case the participating tenants of a block of flats in Trinity Church Square each had a revocable licence to use a communal garden. The participating tenants served an initial notice claiming the freehold of the building and the garden. Following service of the initial notice the freeholder revoked each licence. The counter-notice proposed that instead of the nominee purchaser acquiring the garden the freeholder would grant a permanent, but revocable licence for its use.
The issue was whether the grant of a revocable licence satisfied the requirement that there should be granted “such permanent rights as will ensure that thereafter the occupier of the flat referred to in that provision has as nearly as may be the same rights as those enjoyed in relation to that property on the relevant date by the qualifying tenant under the terms of his lease”. The freeholder argued that if it were not revocable it would not be “as nearly as may be the same” as the existing right and the tenants argued that a revocable right did not satisfy the requirement that the right granted should be permanent.
The Court of Appeal held that a revocable right is not a permanent right. The rights granted had to be irrevocable.
There was no challenge to the decision of the Upper Tribunal that where rights are granted over land in lieu of acquisition the freeholder may retain a rule making power derived from the leases e.g. the power prohibit ball games on a communal lawn.
Piers Harrison, Barrister at Tanfield Chambers