This case came out during the summer and arrived at something of a lull the in leasehold pending the outcome of the consultation and not much other news on things statutory.

However, it does serve as a reminder of the position concerning the position of executors wanting to bring a lease extension in the name of the deceased and provides some further clarity in this area.

As readers may well know, Section 42 of the 1993 Act gives the executors of a deceased flat owner the Right to make a claim for a new lease within two years of the date on which a Grant of Probate has been obtained. This is so that the Executors can (if the deceased qualified) make a claim in their name. In Villarosa the executors had made a transfer of the property and subsequently had then gone on to hold the property for more than two years as executors.

They then made a claim to an extended Lease.

The Landlords contended that the personal representatives only had two years from the date of Grant of Probate to make an application to an extended Lease and accordingly, the Notice was invalid.

The Tenant appealed to the High Court.

The Court held that the claim was valid and that the right of executors to bring a claim within two years of the grant did not negate their ability to subsequently bring a claim by virtue of been the registered proprietors for more than two years under Section 39 (2) of the 1993 Act. Accordingly, there was no special restriction on executors who had taken a transfer of the title and had held the property for some time.

Comment – the case provides a degree of clarity for personal representatives and is welcome clarification of what would otherwise be an illogical interpretation of the statute. It does seem that the Landlord was seeking to rely on a very narrow interpretation of section 39 (3A).

Mark Chick