Mr Justice Richards' judgment in Prescott Place Freeholders Limited & Others v Batin & Donovan [2023] EHWC 435 is essential reading for those interested in tenants’ rights of first refusal under the Landlord and Tenant Act 1987.  Michael Walsh acted for the successful Claimants.

Two important points of principle emerge from the case.  Richards J decided that;

(i) the definition of ‘incumbrance’ under section 12B(5)(b) was not limited to registered incumbrances; and

(ii) the making of an order under section 19 of the 1987 Act did not preclude the freeholder from making granting further interests out of the land.

The procedural history is protracted and the case largely turned on the facts. The High Court agreed with the Claimants that D2’s counterclaim that he was a beneficiary under a trust and was an abuse of process and a breach of the rule in Henderson v Henderson.  D2 alleged that he executed leases of two flats and a deed of trust in 2014. He had never mentioned the leases before the High Court proceedings. The Court found that D2’s evidence was untrue and neither document was executed on the dates D2 alleged.

A further hearing will decide whether D2 can register the equitable leases he said he executed in 2014 but the Court found were in fact executed after the section 19 order was made.