Right to Manage: Whether Roof Voids Without Flooring Should Be Included in Internal Floor Area Calculations (Interface Properties Limited v 307 Barking Road RTM Company Limited – 2024)

Where an RTM Company claims right to manage, should roof voids which have not had flooring laid comprise part of the internal floor area calculation of non-residential parts for the purposes of Schedule 6 of the Commonhold and Leasehold Reform Act 2002?

The background

In Interface Properties Limited v 307 Barking Road RTM Company Limited [2024], the RTM Company respondent sought to acquire the rights to manage a three-storey building on behalf of three out of four residential tenants.

As described within the proceedings, the ground floor of the building comprised commercial units with one residential flat, with three flats on the first and second floors. Common parts within the building included a staircase connecting the flats. The roof of the building formed a ‘V’-shape, with two separate roof voids. The right-hand roof void was accessed via a step-ladder through a ceiling hatch in Flat D, but the void was not comprised within the demise of Flat D. There were possible routes of access from other parts of the building if the landlord had created these, but this had not been done. There was no access to the left-hand roof void.

The floor of the roof voids contained only ceiling joists. No flooring had been laid.

The landlord opposed the right to manage application on the basis of Schedule 6 of the 2002 Act, on the basis that the two roof voids were part of the internal floor area of the premises, and therefore the proportion of non-residential floor area in the building exceeded 25%.

A single joint expert was appointed to measure the internal floor areas of the residential and non-residential parts. He excluded the roof voids from his measurement in line with RICS guidance, but also supplied a measurement including the roof voids. If the roof voids were included in the total internal floor area of the building, and in the floor area of the non-residential parts of the building, it was mutually agreed that this increased the ‘whole’ floor area such that the property was excluded from the right to manage.

The First-tier Tribunal determined that the roof voids were to be excluded from the internal floor area, finding these to be ‘dead space’ as they were neither accessible nor usable. The landlord appealed.

The decision

The Upper Tribunal dismissed the appeal, finding in favour of the RTM Company. Without a floor, neither roof void can form part of the internal floor area of the premises and the RTM Company was entitled to acquire the rights to manage the property.

The RTM Company argued that the roof voids should be excluded from the calculation as they did not contain any flooring. The UT considered whether ‘internal floor area’ necessitated the presence of flooring, and whether any potential future use of the roof voids was a relevant factor.

The UT determined that roof voids without flooring did not constitute part of the internal floor area. Paragraph 1(4) of Schedule 6 to the 2002 Act refers to ‘interruptions’ such as internal partitioning, but this does not apply to areas without flooring surfaces suitable for walking on.

In its judgment, the UT stated that the statute makes no express stipulation that the space should be in use, or potentially useful. The RTM Company argued that the UT’s decision must be made based on a snapshot of the property’s current status, and not consider the potential usefulness or otherwise of the spaces in question. The UT agreed.

Advice and action for landlords

A decision of note for landlords and agents where rights to manage may be sought, providing guidance on the interpretation of ‘internal floor area’ and confirming that roof – or other – spaces without usable flooring should be excluded from the total internal floor area calculation for the purposes of the 2002 Act.

The UT took a practical approach to this decision, inspecting the property’s physical characteristics and reaching its decision based on the facts in the case. For properties where void or other spaces may prove decisive in an RTM application, landlords are advised to assess roof void spaces and to consider how these may be adapted to increase the percentage of usable internal floor area in a measurement.