Malone & Ors v Bircham & Co Nominees (No.2) Ltd & Ors

Malone & Ors v Bircham & Co Nominees (No.2) Ltd & Ors

The transfer of legal title to the Garden was valid and not restricted by the EMS, as the scheme did not prohibit such disposition and no register restriction existed. Transfer of rights and powers under the EMS to Visortuning Ltd without approval was invalid. The Landlord is not required to contribute a capital rate. Legal costs of the dispute are not recoverable from residents under the Garden Agreements or EMS. Only specified categories of income must be credited against expenses in calculating contributions; a blanket declaration is inappropriate.

Parties
Claimant: Frederick Roland Malone; Claimant: Carol Collins Malone; Claimant: Smadar Goldstein; Defendant: Bircham & Co Nominees (No.2) Ltd; Defendant: Sarah Elizabeth Stowell; Defendant: Visortuning Ltd
Jurisdiction
England and Wales
Judgment Date
19 December 2003
Procedural Posture
Civil / Judgment After Trial of Agreed Issues
Outcome
Declarations granted in part; some claims refused; costs reserved.
Legal Topics
Estate Management Schemes, Leasehold Enfranchisement, Delegation of Management Powers, Service Charges, Garden Agreements
Land Law Landlord and Tenant Trusts Estate Management Schemes Leasehold Enfranchisement Delegation of Management Powers Service Charges Garden Agreements

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Parties

Frederick Roland Malone

Claimant

Carol Collins Malone

Claimant

Smadar Goldstein

Claimant

Bircham & Co Nominees (No.2) Ltd

Defendant

Sarah Elizabeth Stowell

Defendant

Visortuning Ltd

Defendant

Procedural Posture

Civil / Judgment After Trial of Agreed Issues

Legal Issues

  1. 1 Whether transfer of legal or beneficial ownership and/or rights and powers under the Estate Management Scheme (EMS) without approval is valid, voidable, or void
  2. 2 Whether lease of the Garden to Visortuning Ltd without approval is void or voidable
  3. 3 Whether the Landlord under the EMS must contribute a capital rate to the Garden budget

Ratio Decidendi

The transfer of legal title to the Garden was valid and not restricted by the EMS, as the scheme did not prohibit such disposition and no register restriction existed. Transfer of rights and powers under the EMS to Visortuning Ltd without approval was invalid. The Landlord is not required to contribute a capital rate. Legal costs of the dispute are not recoverable from residents under the Garden Agreements or EMS. Only specified categories of income must be credited against expenses in calculating contributions; a blanket declaration is inappropriate.

Court Disposition

Declarations granted in part; some claims refused; costs reserved.

Orders

  • Declaration that transfer of legal title to the Garden was valid and not restricted by the EMS.
  • Declaration that transfer of rights and powers under the EMS to Visortuning Ltd without approval was invalid.