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6.2 Application to the County Court: Process and Grounds

Ashley Connell

Edited by Ashley Connell

Leasehold Enfranchisement Solicitor at Hetts


Why a Tenant May Make an Application to the County Court

Tenants (leaseholders) may apply to the county court in the following circumstances related to lease extensions under Chapter II of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993):

Information on the court's jurisdiction can be found at our Section 6.1 - Court's Jurisdiction on County Court Lease Extension Claims.

  1. Landlord Fails to Serve a Counter-Notice (Section 49):
    • If the landlord fails to serve a counter-notice by the date specified in the tenant’s Section 42 notice (typically two months from service), the tenant can apply to the county court within six months of the due date to enforce the lease extension on the terms proposed in their Section 42 notice (Section 49(1)–(3)). This provision protects tenants from landlord inaction, allowing the court to determine the terms of acquisition and grant a vesting order if necessary. Practical guidance from sources like the Leasehold Advisory Service (LEASE) emphasises that tenants should act promptly to avoid the notice lapsing, as failure to apply within six months deems the notice withdrawn, triggering a 12-month bar on new claims (Section 42(7)). Evidence required includes proof of service of the Section 42 notice (e.g., recorded delivery receipts or affidavits), a copy of the notice, and details of any attempts to contact the landlord. Common pitfalls include insufficient proof of service, which can lead to the application being dismissed, or delays in filing that risk the six-month deadline. In contested cases, the court may require valuation evidence if terms are disputed, though typically the tenant's proposed terms prevail absent a counter-notice.
  2. Landlord Cannot Be Found (Section 50):
    • If the landlord cannot be found, their identity cannot be ascertained, or they fail to respond, the tenant may apply to the county court for a vesting order to secure the new lease (Section 50(1)–(2)). The court will grant the lease on terms consistent with the tenant’s Section 42 notice or as determined by the court, provided the application is made within six months of the counter-notice due date if no counter-notice is served (Sections 49(3) and 50(3)). This addresses "absent landlord" scenarios, where tenants must demonstrate diligent searches, such as Land Registry enquiries, electoral roll checks, or tracing agents' reports. Guidance from Practical Law notes that the court may appoint a representative for the landlord or direct payment into court if the premium cannot be paid directly. A key addition from research is that under Practice Direction 56 of the Civil Procedure Rules (CPR), such applications follow the Part 8 procedure, requiring a claim form (N208) supported by witness statements outlining search efforts. Common issues include inadequate evidence of searches, leading to adjournments, or failure to join intermediate landlords, which can complicate proceedings.
  3. Enforcement of Agreed or Determined Terms (Section 48(5)):
    • If terms for the lease extension have been agreed between the tenant and landlord or determined by the First-tier Tribunal (Property Chamber), but the landlord fails to complete the lease extension within a reasonable time, the tenant may apply to the county court to compel completion via a vesting order (Section 48(5)). The application must be made within four months from the date the terms were agreed or determined, comprising a two-month “appropriate period” (during which parties should attempt completion) followed by a two-month filing window (Section 48(6)). If missed, the notice lapses, and costs liabilities arise. Evidence typically includes the agreed terms, correspondence showing delay, and draft lease documents. LexisNexis guidance highlights that courts expect evidence of reasonable efforts to complete before applying, such as solicitor correspondence or payment attempts. A deeper point from case law, such as in protective tribunal applications, is that if a "protective" application was made to the tribunal to preserve time limits before agreement, the county court may consider transitioning or consolidating proceedings to avoid duplication.
  4. Disputing Redevelopment Claims (Section 47):
    • If the landlord serves a counter-notice under Section 45 claiming an intention to redevelop, thereby seeking to defeat the lease extension (Section 47(1)), the tenant may apply to the county court within two months of the counter-notice to challenge this claim (Section 47(5)). The court will assess whether the landlord’s intention is genuine and whether redevelopment (demolition, reconstruction, or substantial works) cannot reasonably proceed without possession of the flat (Section 47(2)). From deeper research, including the House of Lords case Majorstake Ltd v Curtis [2008] UKHL 10, the court requires evidence of a "firm and settled intention" to redevelop, but planning permission is not mandatory—factors include architectural plans, funding availability, and a reasonable prospect of implementation. The works must affect the flat or premises containing it substantially, not merely ancillary areas. Practical Law notes that tenants should submit counter-evidence, such as expert surveyor reports questioning the feasibility or genuineness, to rebut the claim. Common pitfalls for tenants include late applications, leading to automatic defeat of their claim, or insufficient rebuttal evidence, resulting in the court upholding the landlord's intention.

Why a Landlord May Make an Application to the County Court

Landlords may apply to the county court in the following scenarios related to lease extensions under LRHUDA 1993:

  1. To Defeat a Tenant’s Lease Extension Claim Due to Redevelopment (Section 47):
    • If a landlord serves a counter-notice under Section 45 stating an intention to redevelop, which would prevent the tenant from exercising their right to a new lease (Section 47(1)), the landlord must apply to the county court within two months of the counter-notice to obtain a declaration that the tenant’s right is not exercisable due to the redevelopment intention (Section 47(2)). The court evaluates the genuineness of the intention based on objective evidence, such as development plans, contractor quotes, and timelines, without requiring actual commencement of works. Deeper analysis from Court of Appeal rulings, like in Cadogan Estates Ltd v Morris [1999] 1 EGLR 59, clarifies that the intention must be to carry out works on "any premises in which the flat is contained," interpreted broadly to include the building or estate. If successful, the tenant's claim is defeated, but landlords risk cost penalties if the intention is deemed speculative. Guidance from Falcon Chambers warns that post-Leasehold and Freehold Reform Act 2024 (effective from mid-2024), Sections 23 and 47 are omitted for new claims, but pre-2024 claims under LRHUDA 1993 remain applicable as of August 2025.
  2. To Terminate a New Lease for Redevelopment (Section 61):
    • After a new lease has been granted under Chapter II, the landlord may apply to the county court to terminate the lease on redevelopment grounds, provided at least five years have passed since the new lease commenced (Section 61(1)). The court may grant possession if satisfied that the landlord intends to redevelop (demolish, reconstruct, or substantially work on the premises) and cannot reasonably do so without regaining possession (Section 61(2)). No specific deadline applies beyond the five-year threshold, but applications should be timely to avoid prejudice claims. Evidence mirrors Section 47 requirements, including redevelopment proposals and impact assessments. LEASE guidance adds that compensation is payable to the tenant under Schedule 12, calculated as the diminution in value of their interest. Common issues include proving the five-year lapse accurately, as miscalculation can invalidate the application.
  3. Compensation for Ineffective Claims (Section 61A):
    • If a tenant’s lease extension claim becomes ineffective (e.g., withdrawn under Section 52, deemed withdrawn, or lapsed due to non-compliance), the landlord may apply to the county court for compensation for any postponement of lease termination caused by the claim (Section 61A(1)–(2)). The court awards the difference in the value of the landlord’s interest attributable to the delay (Section 61A(3)). No statutory deadline exists, but prompt filing is advised to preserve evidence. Valuation reports are crucial, comparing pre- and post-claim values. Deeper research from Westlaw indicates that this rarely used provision often arises in lapsed notices, with courts considering market fluctuations during the delay period.
  4. Tenant Fails to Complete After Agreeing Terms (Section 48(5)):
    • If the terms of the lease extension have been agreed or determined, but the tenant fails to complete within a reasonable time, the landlord may apply to the county court to enforce completion, seek a declaration of non-compliance, or potentially claim costs/damages (Section 48(5)). This application must be made within four months from the date the terms were agreed or determined, including a two-month “appropriate period” followed by a two-month filing window (Section 48(6)). Landlords should avoid making this application prematurely, particularly if the tenant has not provided a reason for failing to complete within the four-month window or is actively progressing (e.g., awaiting mortgage funds). An early application without clear evidence of tenant delay or refusal could be viewed as unreasonable conduct by the court under CPR Part 44, potentially leading to adverse cost awards against the landlord or dismissal. For instance, if the tenant demonstrates ongoing efforts via correspondence, the court may order the landlord to pay the tenant’s costs. This provision symmetrises enforcement rights, but Practical Law advises landlords to document all communications to justify the application and mitigate risks.

Costs Associated with County Court Applications

  • Court Costs: County court applications under LRHUDA 1993 follow CPR Part 56 and Practice Direction 56, using the Part 8 procedure for claims like vesting orders or declarations. Filing fees, as set by HM Courts & Tribunals Service in 2025, range from £355 for standard claims (e.g., N208 form for vesting orders) to over £500 for complex contested matters, plus hearing fees up to £1,090 for a full day. When a tenant is forced to apply due to the landlord’s failure to serve a counter-notice (Section 49), the tenant is likely to recover their legal fees from the landlord. This stems from the landlord’s non-compliance with statutory duties, often deemed unreasonable under CPR 44.2–44.4, empowering the court to award costs to the successful party (usually the tenant). Factors include the landlord’s conduct (e.g., negligence or bad faith increases likelihood of full recovery), case complexity, and proportionality of costs. LexisNexis case analysis, such as in scenarios where landlords fail to respond, confirms courts frequently order landlords to pay tenant costs, including solicitor fees and disbursements, but recovery is not automatic—tenants must submit detailed cost schedules (Form N260) proving reasonableness. However, if the landlord justifies non-response (e.g., via evidence of absence), awards may be reduced. Deeper research reveals that under Section 60, tenants are generally liable for landlords’ reasonable costs (e.g., valuation, investigation), but this does not extend to tenant's court costs in default scenarios; instead, CPR discretion prevails, and post-2024 reforms cap non-litigation costs but leave litigation costs recoverable.
  • Parties’ Legal Costs: Both parties typically bear their own costs initially, but county court awards are discretionary under CPR Part 44, unlike tribunals where "no costs" rules apply. Successful parties can seek recovery of reasonable costs, including solicitor fees (£200–£500/hour typical), surveyor valuations (£1,000+), and barrister representation for hearings. Guidance from LEASE notes that in redevelopment disputes (Section 47), losing parties often face full cost liability if conduct is unreasonable. Common pitfalls include disproportionate costs, leading to summary assessments reducing awards by 20–30%.

Deadlines for Making County Court Applications

  1. Tenant Applications:
    • Landlord Fails to Serve Counter-Notice (Section 49): Within six months of the counter-notice due date (Section 49(3)); missing this deems the notice withdrawn (Section 42(7)).
    • Landlord Cannot Be Found (Section 50): Within six months of the counter-notice due date (Section 49(3)); prompt filing recommended after exhaustive searches.
    • Enforcement of Agreed Terms (Section 48(5)): Within four months from terms agreement/determination (two-month appropriate period + two-month window) (Section 48(6)).
    • Disputing Redevelopment Claims (Section 47): Within two months of the landlord’s counter-notice (Section 47(5)); strict, as extension rarely granted.
  2. Landlord Applications:
    • Redevelopment to Defeat Lease Extension (Section 47): Within two months of serving the counter-notice (Section 47(2)).
    • Termination of New Lease (Section 61): After five years from new lease grant; no upper limit but delay may prejudice.
    • Compensation for Ineffective Claims (Section 61A): No deadline, but promptly to avoid evidential issues.
    • Tenant Fails to Complete (Section 48(5)): Within four months from terms agreement/determination (Section 48(6)); prematurity risks dismissal.

Deeper research from GOV.UK Practice Guide 27 (updated April 2025) confirms no statutory extensions for deadlines, but courts may exercise discretion under CPR 3.1 for good cause, though rarely in enfranchisement cases due to statutory rigidity.

Timescales Once an Application Is Made

  1. Court Processing Times:
    • Timescales vary by court workload and complexity under CPR Part 56: Simple unopposed applications (e.g., vesting orders under Section 50) typically resolve in 3–6 months, including acknowledgment (5–10 days), evidence filing (28 days default), and a short hearing if needed. Contested matters (e.g., redevelopment under Section 47) can take 6–18 months, with directions hearings within 4–8 weeks, full trials 3–6 months later, and possible appeals adding 6–12 months. LEASE reports average county court delays of 4–9 months in 2025, exacerbated by backlogs, but urgent applications (e.g., enforcement under Section 48(5)) can be fast-tracked via CPR 3.5. Multi-track allocation for high-value disputes extends timelines.
  2. Completion After Court Orders:
    • For vesting orders (Sections 49–50), completion is court-directed, usually within 1–2 months, with premium payment into court if needed. Enforcement orders (Section 48(5)) require completion in 1–2 months post-order. Delays in registration at HM Land Registry (up to 3 months) should be factored, per HMLR guidance.

Other Considerations

  1. Consequences of Missing Deadlines:
    • Tenants: Lapse of Section 42 notice (Section 42(7)), 12-month prohibition on new notices, liability for landlord’s costs under Section 60(3), and potential premium increases due to shorter leases. Westlaw notes repeated lapses can lead to estoppel arguments in future claims.
    • Landlords: For Section 47, missing two months allows tenant's claim to proceed; for Section 48(5), lost enforcement rights. Compensation under Section 61A may still be available indirectly.
  2. Evidence Requirements:
    • Tenants: Core documents include notices, service proofs, search records (for Section 50), and valuations. Witness statements (CPR 32) must detail chronology; expert reports for disputes (e.g., redevelopment feasibility under Section 47). Insufficient evidence, like unsworn affidavits, is a common pitfall leading to strikes.
    • Landlords: For redevelopment (Section 47/61), plans, funding proofs, and surveyor affidavits; for compensation (Section 61A), before/after valuations. Applications for tenant non-completion (Section 48(5)) need delay evidence, such as unanswered letters.
  3. Role of Professional Advisers:
    • Engage RICS-accredited surveyors for valuations and solicitors specialising in enfranchisement to draft claims and avoid pitfalls like invalid notices (e.g., incorrect premiums). We advises early involvement to negotiate pre-court, reducing costs by 30–50%.
  4. Impact of Withdrawal or Lapse:
    • Voluntary withdrawal (Section 52) or lapse incurs landlord cost liabilities (Section 60(3)) and opens Section 61A compensation. HMLR warns of registration complications if notices are not withdrawn properly.
  5. Statutory Protections:
    • Section 42 notices suspend lease forfeiture during claims (Schedule 12), but lapses remove this. Post-2024 reforms enhance protections but apply prospectively.
  6. Additional Research Insights:
    • Common pitfalls: Invalid Section 42 notices (e.g., unqualified tenants), underestimating court fees/disputes, or ignoring intermediate landlords. Case law like Cowthorpe Road v Wahedally (2020) underscores valid service of notices. With Leasehold and Freehold Reform Act 2024 in partial force by 2025, costs are capped for non-litigation, but county court remains discretionary.