Q&A examining information notices and the right to manage
Can section 82 of the Commonhold and Leasehold Reform Act 2002 be used by a leaseholder to compel a freeholder to supply contact details for other leasesholders who have not responded to a notice to participate in an RTM company and subsequent right to manage claim?
Section 82 of the Commonhold and Leasehold Reform Act 2002 (CLRA 2002) enables an RTM company to serve an information notice on a third party, such as the landlord or the landlord’s managing agent, requesting information which it ‘reasonably requires for ascertaining the particulars required by or by virtue of section 80 to be included in a claim notice for claiming to acquire the right to manage the premises’ (the ‘information notice’). As such, this right is limited to information which the RTM company reasonably requires to be included in the claim notice. It extends only to information within the possession or control of the person served with the notice (CLRA 2002, s 82(1)(a)). The recipient of the information notice has 28 days to comply and provide the information requested in the information notice.
The freeholder or their managing agent will hold the contact details for all of the leaseholders in the building in order to send ground rent and/or service charge demands and other communications in relation to the management of the building.
References: CLRA 2002, s 79(8)
Pursuant to CLRA 2002, s 80, it is a requirement of the claim notice to include the full name of each person who is both: (a) the qualifying tenant of a flat and (b) a member of the RTM company, and the address of their flat. In addition, a copy of the claim notice must be sent to each qualifying tenant in the building.
Pursuant to CLRA 2002, s 79(2), a valid claim notice cannot be given unless each person required to be given a notice of invitation to participate has been served with that notice at least 14 days before service of the claim notice. Therefore, the RTM company may need to prove service of the notice of invitation to participate in relation to those qualifying tenants who have not become members of the RTM company.
However, there is no requirement to include any statement in the claim notice regarding service of the notice of invitation to participate, so there is an argument that the contact details of the leaseholders in the building are not reasonably required to enable the RTM company to ascertain the particulars to be included in the claim notice.
Further, the right under CLRA 2002, s 82 is exercisable by the RTM company rather than an individual leaseholder.
The RTM company could serve an information notice and include a request for contact details of the other leaseholders in the building but for the reasons set out above the recipient is unlikely to be under any duty to supply that information, although they may choose to do so.
As an alternative or additional step, the RTM company can search at the Land Registry in relation to the flats where the leaseholders did not respond to the notice of invitation to participate or in advance of service of the notice of invitation to participate to obtain information as to the name and address of the relevant leaseholder(s). This information may not, however, be as up to date as that held by the freeholder or the managing agents for the building.
A consideration for a landlord receiving a request under CLRA 2002, s 82 is whether it is prevented from supplying the contact details for leaseholders by Regulation (EU) 2016/679, the General Data Protection Regulation (the GDPR). For more information on the GDPR in the property context, see Q&As:
- How does the General Data Protection Regulation impact on property owners and managers?
- Are there General Data Protection Regulation issues to consider in the context of a landlord or managing agent passing information in respect of a tenant(s) to their legal advisers in respect of a proposed vacant possession strategy or providing other legal advice in connection with the enforcement of tenant covenants in a lease and a bailiff or enforcement officer for the purposes of recovering rent arrears?
In summary, CLRA 2002, s 82 cannot be used by a leaseholder to compel a freeholder to supply contact details for other leaseholders who have not responded to a notice to participate in an RTM company and subsequent right to manage claim.
For further information on the right to manage claim generally, see Practice Note: The right to manage.
This content was first published on the Lexis Nexis Ask Forum on 23 September 2020. Please note that the links in the article relate to Lexis PSL content so will only be available to subscribers of that service. For more information, please contact Laura Bushaway on +44 (0)20 7438 2261 or at firstname.lastname@example.org or your usual Charles Russell Speechyls contact.