The Supreme Court just disarmed the landlord's favourite RTM defence

Right to manage claims have been lost for years on things that had nothing to do with whether the leaseholders were entitled to manage their own building. A notice sent to the wrong flat. A notice sent thirteen days before the claim rather than fourteen. A qualifying tenant nobody knew existed because their lease had not yet appeared at the Land Registry. Each of those is a procedural default, and each has been used by landlords to force RTM companies to abandon a claim and start again — with the costs, delay and loss of momentum that entails.

In Avon Freeholds Ltd v Cresta Court E RTM Company Ltd [2026] UKSC 31 the Supreme Court has closed that door. Lord Briggs, giving the sole judgment with which Lord Reed, Lord Stephens, Lady Rose and Lord Snowden agreed, allowed the RTM company's appeal and restored the decision of the Upper Tribunal (UK Supreme Court press summary, 27 August 2026).

The headline is simple. Failing to give a notice of invitation to participate does not invalidate a claim notice — and a landlord cannot raise that failure in a counter-notice at all.

What happened at Cresta Court

Cresta Court E RTM Company was formed by the leaseholders of flats 7 to 26 Cresta Court, Hanger Lane, London W5 — twenty flats in a self-contained part of a larger block. Avon Freeholds Ltd is the registered freeholder.

On 4 November 2021 the RTM company gave notices of invitation to participate — NIPs — to everyone it had identified as a qualifying tenant who had not joined or agreed to join. It missed Ms O'Connor, the resident of flat 17. She held a 150-year lease granted in April 2020, but her registration application, lodged in July 2021, was still pending, so at the material time she was an equitable tenant only. That she was nonetheless a qualifying tenant was fought all the way to the Court of Appeal and finally conceded (judgment, paras 30–32).

On 21 January 2022 the RTM company gave its claim notice to Avon. Five days later, on 26 January, Ms O'Connor joined the RTM company and expressly supported the claim. She never complained about the missing NIP. On 24 February Avon served a counter-notice, and the only ground that survived to the Supreme Court was the failure to give Ms O'Connor a NIP.

So the RTM company was in breach of two provisions. Section 78(1) of the Commonhold and Leasehold Reform Act 2002 requires a NIP to be given to every qualifying tenant who is not, and has not agreed to become, a member. Section 79(2) says the claim notice "may not be given unless each person required to be given a notice of invitation to participate has been given such a notice at least 14 days before".

The First-tier Tribunal upheld the claim. The Upper Tribunal upheld it too, on the basis that the claim notice was voidable rather than void, and only at the instance of the person actually affected. The Court of Appeal reversed both, holding that a claim notice served before the breach was remedied was "invalid, or in other words a nullity" (Court of Appeal, 2025 EWCA Civ 1016, quoted at judgment para 38; J B Leitch case comment).

Why the "nullity" argument collapsed

Avon's case had the attraction of simplicity: section 79(2) says the notice may not be given, so a notice given anyway is void, and there is no room for the nuanced enquiry into Parliament's intention that the House of Lords set out in R v Soneji [2005] UKHL 49; [2006] 1 AC 340.

Lord Briggs found the difficulties with that "at least in the aggregate, insurmountable" (para 37). Four of them are worth understanding, because they explain why this decision is structural rather than fact-specific.

A nullity destroys the tribunal's own jurisdiction. Only a person given a claim notice may serve a counter-notice under section 84(1), and the RTM company can only apply to the FtT for a determination of entitlement once it has received a counter-notice. If the claim notice is a nullity, there is no counter-notice, no application, and no jurisdiction — meaning the whole of the Cresta Court litigation in the FtT and Upper Tribunal was itself outside those tribunals' powers. As Lord Briggs put it, it seems "wholly improbable" that Parliament carved this one issue out and handed it to a court of general jurisdiction (para 38).

A nullity has no relevant date. Entitlement is assessed at the relevant date, which is defined as the date the claim notice is given (section 79(1)). But the relevant date is also the moment at which you test whether sections 78(1) and 79(2) were breached at all — because a tenant who has agreed to become a member by that date is not entitled to a NIP. A void notice fixes no date, and the test eats itself (para 39).

Counsel's retreat had nowhere to land. Faced with that, Avon's counsel argued the notice was valid for procedural purposes including fixing the relevant date, but void for the purpose of the claim. The Court pointed out that on that reading the notice would still be effective to complete the transfer automatically where no counter-notice is served at all, under section 90(2) and (3)(a) — an outcome that makes the transfer's validity turn on whether anyone happened to object (paras 40–41).

Voidness is a windfall for the wrong party. The only people the NIP rules protect are eligible qualifying tenants. They have no right to object to a transfer, by counter-notice or otherwise. So a rule that lets the landlord rely on a tenant's missed notice hands a weapon to a party the rule was never intended to benefit — "at variance with reasonable notions of fairness or justice, and also therefore unlikely to have been intended" (para 42). The Act is also expressly forgiving elsewhere: section 78(7) saves NIPs from inaccuracy, section 81(1) saves claim notices from inaccuracy, and section 81(2) saves a claim notice that wrongly names a non-qualifying tenant as a member (para 45).

The two findings that actually change practice

Section 79(2) is a timing rule, not a sanction

The critical move in the judgment is the separation of sections 78(1) and 79(2). Section 78 sets a rule about who gets a NIP and contains no sanction for breach. Section 79(2) sets a fourteen-day gap and contains no sanction for breach of itself. It can be broken without any breach of section 78 at all — give every NIP correctly, then serve the claim notice on day thirteen, and you have breached only section 79(2) (paras 47–49).

Once you see that, the invalidity argument becomes incoherent. As Lord Briggs framed the conundrum: "why should a provision for the breach of which no express sanction is provided be interpreted as imposing a draconian sanction of invalidity for the breach of another provision which does not contain any express sanction either?" (para 53). Mandatory language does not settle the point — that distinction "has long since been cast away as a decisive determinant of intended consequences" — and section 79(2) says nothing about validity even though the Act uses the concept of validity where it means it (para 54).

So there is no express statement of consequences, the Soneji principle applies, and on the facts nobody suffered any prejudice at all: not Avon, which was never a beneficiary of the rule, and not Ms O'Connor, who joined five days later and supported the claim (paras 34–35, 76).

Procedural non-compliance cannot found a counter-notice

This is the finding with the widest reach, and it goes further than the specific NIP point. Lord Briggs describes the scheme as three "nearly watertight compartments" (paras 55–57):

Compartment	Provisions	Character
Entitlement conditions	Sections 72–77, plus the 50% membership requirement in section 79(3)–(5)	Substance
The claim procedure	Sections 78–89	Procedure
Consequences of acquisition	Section 90 onwards	Substance

A counter-notice under section 84(2)(b) creates a "dispute about entitlement". Entitlement means the substantive conditions in the first compartment. Because sections 78(1) and 79(2) sit in the second and do not go to entitlement, "they cannot be raised by way of objection to the acquisition of the right to manage by the RTM company" (para 58).

The remedy for procedural default is section 107 instead: any interested person may apply to the tribunal, on fourteen days' notice, for a discretionary order requiring the default to be made good. Lord Briggs is explicit about why that is the better fit — invalidity is "an extraordinarily blunt weapon" for defaults "of almost limitless variety in seriousness, blameworthiness and practical consequences", and using it is "like taking a blunderbuss to a shooting gallery" (para 59). The Consultation Paper on Commonhold and Leasehold Reform (Cm 4843, August 2000) and the Explanatory Notes to the Act both say a counter-notice may only be founded on non-compliance with the qualifying criteria, which supports exactly this reading (paras 63–64).

A1 Properties, corrected

Both the Upper Tribunal and the Court of Appeal had relied on the Supreme Court's own words in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, where at para 69 the Court said that section 79(2) "imposes a clear consequence of failure in good time to give participation notices: no valid claim notice can be given to anyone".

Lord Briggs, who wrote that passage, now describes returning to it "repentantly" (para 46). He holds it was not part of the ratio decidendi on any of the competing definitions of that concept: it was not what the case decided, it was not a necessary part of the reasoning, it formed no part of the justification for the outcome, it was not subject to argument, the Court did not intend to lay down a rule, and the decision would have been identical without it (paras 72–73). The same treatment is given to a passing summary in Settlers Court RTM Co Ltd v FirstPort Property Services Ltd [2022] UKSC 1, which concerned an unrelated question about estate-wide facilities (paras 67–68).

Crucially, A1 Properties had expressly reserved "for another occasion" the very question raised in this appeal — whether a landlord can rely on a missing NIP where the tenant concerned does not object. That occasion has now arrived, and the answer is no (para 74).

The rest of A1 Properties survives intact and, Lord Briggs notes, supports this outcome. That decision warned against giving a party unaffected by an omission "a windfall, a power to thwart the operation of the statutory process", and said the procedural requirements "have not been included to create traps for the unwary, nor to afford unwarranted opportunities for obstruction on the part of objecting landlords" (paras 77–79). Two long-standing tribunal decisions on the landlord's side of the argument — Sinclair Gardens Investments (Kensington) Ltd v Oak Investments RTM Co Ltd and Avon Freeholds Ltd v Regent Court RTM Co Ltd — are effectively vindicated.

What this means if you are running an RTM claim

The main procedural trap is gone. A missed NIP, or a claim notice served too early, no longer sinks the claim. If a landlord's counter-notice relies only on procedural non-compliance with sections 78 or 79, that objection is not a dispute about entitlement and cannot succeed.

Thinking about a claim? Check your Right to Manage eligibility here →

Substance still decides everything. Nothing in this judgment relaxes the qualifying rules. The premises must qualify under section 72. The company must be constituted correctly under sections 73 and 74. At least half the flats must be held by qualifying tenants who are members on the relevant date. Get those wrong and the claim fails, exactly as before.

Unregistered leases still count. The point was not appealed, but the Court of Appeal's holding stands: an equitable tenant whose long lease is awaiting registration is a qualifying tenant. If you are compiling a NIP list, pending Land Registry applications and recent sales matter — and, per Lord Briggs, the practical difficulty of finding such tenants is real, not a fiction. He was notably unimpressed by the suggestion that posting a NIP to "the qualifying tenant" at every flat solves it, calling that "more of a lawyerish fancy than a real solution" given the sub-tenants and short-term occupiers who may actually answer the door (para 35(v)).

Still do it properly. Section 107 remains live. A tenant deprived of a NIP can apply for an enforcement order, and Lord Briggs contemplates that a company deliberately giving no NIPs at all could be ordered to restart the entire claim process, "if only pour encourager les autres" (para 61). Prejudice and blame are relevant to that discretion. The judgment removes the landlord's veto, not the obligation.

Landlords lose the cheapest form of resistance. Objecting on procedure was low-cost and often decisive. The remaining routes are substantive eligibility challenges and the section 107 jurisdiction, which is discretionary and open to any interested person rather than reserved to the counter-notice class.

Why this matters for commonhold

It would be easy to read this as a technical footnote in a regime the government intends to make historical. It is not.

The Commonhold White Paper and the draft Commonhold and Leasehold Reform Bill will make commonhold the default for new flats and lower the threshold for converting existing blocks. But conversion of existing buildings will be voluntary, consent-based and slow. Most of the four to five million leasehold flats in England and Wales will still be leasehold well into the 2030s, and the right to manage remains the primary mechanism by which leaseholders in those buildings take practical control of their own service charges, contractors and building safety decisions in the meantime.

There is a deeper connection too. The Supreme Court has now twice held that the RTM scheme should be read so that obstructive landlords cannot use procedure to defeat a substantively valid transfer of control. That is the same principle the reform programme rests on: that the people who own the flats should decide how the building is run, and the machinery should serve that outcome rather than obstruct it.

A leaseholder group that acquires the right to manage today also builds the thing commonhold will demand of it later — a functioning company, a board that can hold contracts, a reserve fund, minutes, budgets and the habit of collective decision-making. RTM is, in practice, the apprenticeship for commonhold. This judgment makes that apprenticeship materially easier to start.

What to watch next

Three things follow from here.

The first is behavioural. Expect fewer procedural counter-notices, and expect landlords to concentrate objections on section 72 premises questions and the 50% membership test — where the tribunal's answer is genuinely uncertain in mixed-use and multi-block estates.

The second is the reach of the "watertight compartments" analysis. Lord Briggs' conclusion is expressed at the level of the scheme, not just sections 78 and 79: procedural rules in sections 78 to 89 do not go to entitlement. Practitioners will test how far that extends — to section 79(8) copies, to section 80 content requirements, to service defects — and where the boundary between substance and procedure actually falls.

The third is drafting. If the final Bill carries the RTM regime forward with amendments, Parliament now has clear judicial guidance on what its own procedural provisions were understood to do. Whether the Bill codifies that reading, or reopens it, is worth watching when the text is introduced.

For now, the position is as clear as it has been since 2002. Substance decides entitlement. Procedure is enforced by discretion. And a landlord who suffered no harm cannot use a leaseholder's missing letter to keep control of a building.