In Avon Freeholds Limited v Cresta Court E RTM Company Limited [2026] UKSC 31, the Supreme Court held that a failure to serve a notice of invitation to participate (NIP) on a qualifying tenant does not invalidate a Right to Manage (RTM) claim. This decision clarifies that a procedural defect in an RTM claim does not automatically defeat the claim, thereby narrowing the scope for landlords to challenge such claims.

Background

• The statutory Right to Manage scheme: Under the Commonhold and Leasehold Reform Act 2002, qualifying tenants may acquire the right to manage their building through an RTM company. Under section 78, before making its claim, the RTM company must serve a NIP on every qualifying tenant who is not already a member. Section 79(2) then provides that the claim notice "may not be given" unless every person who was required to receive a NIP has received one at least 14 days before.
• The facts: On 21 January 2022, the Cresta Court E RTM Company Ltd (the RTM Company) served its claim notice on Avon Freeholds Ltd (the Freeholder). The Freeholder served a section 84 counter-notice on the ground that the RTM Company had failed to serve a NIP on a leaseholder whose 150-year lease had been granted but was not yet registered at HM Land Registry when the claim notice was served.
• Previous proceedings: The First-tier Tribunal and Upper Tribunal both upheld the RTM Company’s claim that it was entitled to claim for the right to manage, while the Court of Appeal disagreed and found in favour of the Freeholder. The RTM Company appealed to the Supreme Court.

The Supreme Court’s decision

Restoring the decision of the Upper Tribunal, the Supreme Court allowed the RTM Company’s appeal and emphasised a number of points:

• Substantive vs procedural requirements: Delivering the unanimous judgment, Lord Briggs disagreed with the Court of Appeal’s strict conclusion that the claim notice was rendered absolutely void. Instead, he drew a clear line between the substantive entitlement conditions for RTM (such as qualifying premises, a valid RTM company, and the membership threshold) and the procedural requirements for making a claim (such as service of the claim notice and NIPs, and timing). Since a landlord's counter-notice under section 84 can only challenge substantive entitlement, a failure to meet a procedural requirement such as section 79(2) cannot defeat an RTM claim.
• Invalidity would produce "jurisdictional and practical incoherence": If the claim notice were truly void, it could not trigger the landlord's right to serve a counter-notice under section 84(1), nor the RTM company's right to apply to the FTT under section 84(3) to challenge the counter-notice. The Supreme Court considered it "wholly improbable" that Parliament intended this result.
• Invalidity would be a “blunt weapon” for procedural defects: Treating every procedural defect as fatal would create a disproportionate sanction for issues of varying seriousness and consequence. On the facts, the failure caused no prejudice to anyone as the tenant who did not receive a NIP supported the RTM claim and voluntarily became a member five days after the claim notice was served.
• The NIP requirement protects tenants, not landlords: The procedural requirements in sections 78 and 79(2) are designed to benefit qualifying tenants by giving them the opportunity to participate. The proper remedy for breach is a discretionary enforcement application under section 107, brought by the person the requirement was designed to protect.

Key takeaways

• A failure to serve a NIP is not fatal to an RTM claim: Landlords cannot rely on procedural defects to challenge an otherwise valid RTM claim, as the Court's focus is on substantive eligibility. This means counter-notices should be directed at more material issues including whether the premises qualify, whether the RTM company is validly constituted, and whether the membership threshold is met.

• RTM companies should still serve NIPs carefully: The NIP requirement remains mandatory, so RTM companies should consider whether any flats have leases that have been granted but not yet registered at HM Land Registry. Omitted tenants retain enforcement remedies under section 107, and compliance avoids unnecessary disputes and delay.

  With thanks to Adam Lee for his assistance in drafting this article.