HC Deb 24 October 1967 vol 751 cc1627-32

Lords Amendment No. 59: In page 81, line 22, leave out "the boundaries of".

10.15 p.m.

Mr. Skeffington

I beg to move, That this House doth agree with the Lords in the said Amendment.

The purpose of this Amendment is again to meet a point of practice raised by the Law Society. It is that the requirement of the leaseholder to identify, as the Bill now stands, the "boundaries" of the property covered by his claim, of enfranchisement for or an extension. It would seem that he might be expected to produce either a map or a very detailed description. Normally when the leaseholder is claiming in such a case, he very often will not have a map or detailed description.

This is not thought to be necessary now. It is sometimes required, but very often is not, and it was thought that the application here was a little too severe. If the Amendment is agreed to, it does not absolve the leaseholder from making quite clear just what his property is.

For example if he is not making a claim including a garage which may be under some other arrangement sub-let to someone else, then he cannot include it in his claim and is obliged to let the landlord know that his claim does not extend to the garage, in order that the landlord, under the previous provisions of the Bill, can require the leaseholder to include it under the appropriate Clause.

It is therefore felt that the arrangement can be quite satisfactorily left, rather than put what might be a very heavy burden upon the leaseholder, and one that is not considered necessary. Again we are grateful to the Law Society for the suggestion.

Question put and agreed to.

Subsequent Lords Amendment agreed to.

Lords Amendment No. 61: In page 81 line 30, leave out "seven" and insert "ten".

Mr. Skeffington

I beg to move, That this House doth agree with the Lords in the said Amendment.

This is really consequential. In the Committee of this House the residential qualification for the benefits of the Bill as set out in Clause 1 (1,b) was altered from five out of the last seven years to five out of the last ten.

The Amendment requires the tenant, in his formal claim, to give particulars of the periods he has and has not occupied the house for the past ten years instead of the last seven.

Question put and agreed to.

Lords Amendment No 62: In page 81, line 43, at end insert: (3) The notice shall not be invalidated by any inaccuracy in the particulars required by this paragraph or any misdescription of the property to which the claim extends; and where the claim extends to property not properly included in the house and premises, or does not extend to property that ought to be so included, the notice may with the leave of the court, and on such terms as the court may see fit to impose, be amended so as to exclude or include that property.

Read a second time.

Mr. Graham Page

I beg to move, as an Amendment to the Lords Amendment, in line 8, after 'may', insert 'in default of agreement between the landlord and the tenant'. The Lords Amendment to which I seek to make this further Amendment is an Amendment to Part II of Schedule 3 which deals with the procedure on the tenant's notice. That is when the tenant gives a notice under Part I of his desire to have the freehold, or an extended lease. Here is set out the procedure which follows, the form of notice to be given, what should be in the notice and so on.

We have been dealing in the group of Amendments with a number of detailed points which have to appear in the notice. It is very probable than on many occasions there will be errors in that notice. The Lords Amendment states what should be done if there are inaccuracies in that notice. They shall not be invalidated, but can be put right with the leave of the courts. The Amendment does not say that it can be put right by agreement of the parties. That may be thought to be implied, but the expression in this Amendment is: … where the claim extends to property not properly included in the house and premises, or does not extend to property that ought to be so included, the notice may with the leave of the court … be amended … We seek to insert the phrase: in default of agreement between the landlord and the tenant". It is reasonable that the parties should be allowed to agree and the Amendment does not allow them to do so, and I feel that it means that they would have to go to the court to have the notice amended.

Mr. Skeffington

I am sorry that at this stage I should have to disagree with the proposal of the hon. Member for Crosby (Mr. Graham Page). His Amendments would make it necessary for any inaccuracy or misdescription in the leaseholder's claim to be brought before the court, which would put a great deal of unnecessary work on the court. As the paragraph now stands, there are cases in which resort to the county court would be required—

Mr. Page

The hon. Gentleman seems to be dealing with an Amendment which has not been selected, the first one. We are discussing only the second.

Mr. Skeffington

I am obliged to the hon. Gentleman. My note deals with both his Amendments and I was discussing the first instead of the second, which is on a narrower point, but even this makes a provision which is unnecessary and too strict. When I deal with the Lords Amendment No. 62 I will point out certain advantages to that proposal, but the hon. Gentleman's goes too far. I therefore advise the House not to accept it.

Amendment negatived.

Lords Amendment No. 62: In page 81, line 43, at end insert: (3) The notice shall not be invalidated by any accuracy in the particulars required by this paragraph or any misdescription of the property to which the claim extends; and where the claim extends to property not properly included in the house and premises, or does not extend to property that ought to be so included, the notice may with the leave of the court, and on such terms as the court may see fit to impose, be amended so as to exclude or include that property.

Mr. Skeffington

I beg to move, That this House doth agree with the Lords in the said Amendment.

The Amendment would ensure that a leaseholder's formal claim of enfranchisement or for a 50-year extension was not invalidated by trifling errors. To have his claim so invalidated might be calamitous for him if the error were not detected until after the time for making the claim had passed. This might happen. as the Bill is now drafted, to a leaseholder who had a notice under the Landlord and Tenant Act of 1954 from his landlord terminating the long tenancy, and under paragraph 2(1) of Schedule 3 he would then have only two months in which to counter the landlord's notice with a claim for the freehold or extension.

The Amendment also deals with the case where a leaseholder has made a substantial error. He might have forgotten to leave out of the claim a garage which is sublet to and occupied by a neighbour, or to include the hot-water cupboard which projects under the stairs of his neighbour's house, a situation which could arise when an old house is divided vertically. Even such substantial errors may be corrected by leave of the county court and on such terms as the court imposes.

The point of giving the court power to impose terms is that the landlord has the right under Clause 2(4) and (5) to demand that the leaseholder shall enfranchise the garage too or shall not enfranchise the cupboard projecting into the neighbouring house, but this right must be exercised within two months of the leaseholder's claim.

If the leaseholder is to be allowed to correct his claim by omitting the garage, instead of having his whole claim invalidated, the court will, no doubt, insist on thhe leaseholder's accepting any demand by the landlord that he should enfranchise the garage as a valid demand to be disputed only on the physical merits and not contested on the ground that the landlord was out of time in seeking to include or exclude that part of the property.

Mr. Graham Page

I entirely agree with the Joint Parliamentary Secretary that inaccuracies in the notice should not invalidate the whole transaction. That is only common sense and the right way to deal with matters between the parties.

If the tenant has left out the garage or the hot water cupboard but both parties agree that it was by mistake and that it should be included, and they are both happy that the notice should be amended, must they go to the court to get it amended? According to the Amendment, it seems they must. According to the hon. Gentleman's explanation, it seemed to me that the parties cannot do anything without the leave of the court.

May I have an assurance that elsewhere in the Bill or in the Schedule there is provision for the parties to agree to alter a notice, or perhaps, to agree on terms if one of them may have been put to costs by the error of the other? Let there be terms between them for payment of costs as a result of that error, but, surely, they can do it without going to the court. It could be provided that they go to the court for a consent order, but cannot they do as I suggest without applying to the court?

Mr. Skeffington

One is here trying to lessen the burden upon an enfranchiser, but it would be wrong to lessen it in such a way that it put the other party, in this case the landlord, into difficulty, which might mean that he lost a substantial part of his right.

It would seem that in these circumstances, where anything significant occurred, the parties could easily go to the county court and get a consent order. There is no great difficulty. On the other hand, when one is thinking of the rights which may arise out of the transaction, in relation not only to the two parties but to others who may become possessed of the title, it seems right that for the avoidance of doubt the matter should be settled by the court so that fair play can be achieved by both parties.

10.30 p.m.

Mr. S. C. Silkin

It seems that where the original landlord and lessee are at one no difficulty will arise since they can act independently of the Bill, but difficulty might arise in a case where the lessee has sold his interest with the benefit of a notice which he has already served but which turns out to be inaccurate. In those circumstances the landlord might seek to take advantage of the inaccuracy and the new lessee would not have his own right to serve a notice for another five years. For this reason the provision to enable the court to make an amendment is a valuable one.

Question put and agreed to.

Subsequent Lords Amendments agreed to.