Varying flat leases under section 35 of the Landlord and Tenant Act 1987 (as amended) can be contentious, expensive and time-consuming.
To allow the application to be made to a leasehold valuation tribunal for an order without first establishing whether it is sufficiently supported or insufficiently opposed by the required number of the flat owners, would be to put the cart-before-the-horse, and a complete waste of time and money.
In Simon v St Mildreds Court Residents Association Ltd  the application was in respect of more than 8 leases.
So it had to be shown that it was not opposed, for any reason, by more than 10% of the total number of the parties concerned and that at least 75% of that number consented to it.
To calculate whether or not 75% of the parties concerned had consented to the application, the landlord constituted one of the parties (section 37(6)(b)).
The Upper Tribunal (Lands Chamber) said, the necessary consent to:
“the application … for an order varying each of those leases in such manner as is specified in the application” (section 37(1))
must have been achieved by or at the time the application was issued because of the mandatory wording of section 37(5) that:
“any such application [that is one made under sub-section (1)) shall only be made if” the requisite majority “consent to it”.
The issue of whether the application is not opposed for any reason by more than 10% of the total number of the parties concerned needed to be addressed by or at the time the application to the leasehold valuation tribunal was made.
This followed from the wording of the provision, which said that the application “shall only be made if” (etc).
So any consent received or opposition expressed after that time did not count towards compliance with section 37(5)(b).
In short section 37(5)(b) imposes two jurisdictional pre-requisites or hurdles which must or “shall” be satisfied to qualify the applicant to make an application under section 37(1):
1. that the application is not opposed by more than 10% and,
2. that it is consented to by 75%
of the parties concerned.
This blog is posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.