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01 November 2018

Tenants’ Associations (Provisions Relating to Recognition and Provision of Information) (England) Regulations 2018

New Regulations have been issued to make it easier for tenants’ associations (TAs) of residential properties in England to become legally recognised and to obtain information from landlords about other tenants who have a legal right to join the TA. The Regulations will come into force on 1 November 2018.

The current position
A recognised TA is an association of qualifying tenants of residential dwellings which is legally recognised under Section 29 of the Landlord and Tenant Act 1985 either by a notice in writing by the landlord or a certificate of recognition obtained from the First-Tier Tribunal (Property Chamber) (“the FTT”).  The advantage for a TA of recognition is that it can act on behalf of its members regarding a number of service charge issues.  Currently, the general rule is that the membership of the TA must include at least 60% of the qualifying tenants in order to be formally recognised. A qualifying tenant is a tenant who is required under their lease to pay a service charge.

Recognition under the new Regulations
Under the new Regulations, it is now easier for a TA to become a recognised TA because it will qualify if its membership includes 50% of the qualifying tenants.

The new Regulations have also introduced formal criteria to which the FTT must have regard in granting or cancelling a certificate of recognition of a TA:-

Matters to which the FTT must have regard when giving a certificate

  1. The composition of the TA’s membership;
  2. The TA’s rules regarding membership, decision-making and voting;
  3. The extent that any fees or charges payable in connection with membership of the TA apply equally to all members;
  4. The extent that the constitution takes account of all members’ interests;
  5. The extent to which the TA is independent of the landlord;
  6. Whether the TA has a chairperson, secretary and treasurer;
  7. Whether the constitution may be amended by resolution of the members and the rules regarding amendment;
  8. Whether the constitution, accounts and list of members are kept up to date and available for public inspection; and
  9. The extent that the TA operates in a transparent way.

Circumstances in which the FTT must not give a certificate

  1. Where the TA represents less than 50% of qualifying tenants.
  2. Where the TA represents qualifying tenants in related premises, the FTT must not give a certificate in relation to the related premises if the TA represents an aggregate of fewer than 50% of the qualifying tenants situated in the related premises.
  3. If a certificate has previously been given to a TA in relation to the premises and the certificate remains in force.
  4. If the FTT is not satisfied that the constitution of the TA is fair and democratic.

Criteria to which the FTT must have regard when cancelling a certificate

  1. Whether the certificate was obtained by deception or fraud.
  2. Whether the TA represents fewer than 50% of the qualifying tenants.
  3. Where the TA represents an aggregate of less than 50% of the qualifying tenants situated in the related premises.
  4. Whether the office of chairperson, treasurer or secretary of the TA are vacant and, if so, the length of time the position has remained vacant.
  5. Whether any provision of the constitution of the TA has been breached and, if so, the extent and nature of the breach.
  6. Whether an amendment to the constitution, as passed by a resolution of its members, has not been implemented and, if so, the nature of the amendment and the length of time for which it has been unimplemented.
  7. Any irregularities in the TA’s voting process, decision making, implementing of decisions, or recording of decisions.

Rights to Information
Under the new Regulations, the TA has the power to serve a request notice on the landlord or the landlord’s managing agent to obtain known information about qualifying tenants who are not currently members of the TA.  This is a useful tool for TAs to help them invite qualifying tenants to become members of the TA and reach the 50% threshold for formal recognition.  Known information refers to the tenant’s name, the address of the dwelling for which the tenant pays a service charge, any address to which service charge demands for the tenant are sent, and the tenant’s email address if held by the landlord/landlord’s managing agent.

The notice must include a schedule listing the qualifying tenants who are members of the TA, the postal and email address of the TA, and be signed and dated by the secretary of the TA.  It must also contain a signed and dated statement that the known information requested will be used only to ask the relevant qualifying tenants if they wish to become members of the TA.

Landlord’s duties upon receipt of request notice
Landlords should be aware that within 7 days of receipt of the request notice, they must acknowledge receipt in writing and inform the TA’s secretary that they will provide a substantive response.  If the landlord does not consider the request notice to be valid, they must inform the TA’s secretary in writing within 7 days that they will not provide a substantive response, giving reasons why the request notice is invalid. 

A landlord must, as soon as practicable, give a signed and dated information form to each tenant in relation to whom known information has been requested. An information form informs the tenant that a TA has requested known information relating to them and why it has been requested.  The form identifies the TA and includes the postal and email address of the TA.  It asks the tenant for written consent to disclose the known information, explains that it will not be disclosed without that consent and informs the tenant to direct any queries to the TA.  The tenant is asked to reply within 28 days of receipt either (1) confirming consent to all known information being disclosed, (2) confirming consent to a partial disclosure and stating what may be disclosed, or (3) refusing consent to any information being disclosed.

Landlord’s substantive response to request notice
A landlord must provide a substantive response within 4 months’ of the notice being received.  The response must state either all requested known information which the landlord has the consent to disclose or that there is no such known information.  It must also state the number of tenants (1) to whom the landlord sent an information form and (2) to whom known information was requested who did not give written consent for information to be disclosed.  It must be accompanied by a signed and dated statement that the information contained in the substantive response is true to the best of the landlord’s knowledge and belief.  Where the landlord receives consent from a tenant to disclose information after the expiry of the 4 month period, the landlord must disclose the information as soon as reasonably practicable after the consent is received together with the statement of truth from the landlord.

Failure by a landlord to comply
The new Regulations contain a power for the TA to apply to the FTT for an order to compel the landlord to comply with its duties under the new Regulations.  If the landlord fails to comply with such an order, the FTT has the discretion to grant a certificate of recognition where the membership of the TA is less than 50% of qualifying tenants.

Summary
The aim of the new Regulations is to make it easier for TAs to obtain information about qualifying tenants to join the TA, to reduce the threshold for recognition of a TA to 50% of qualifying tenants and to codify the criteria which the FTT must have regard to when granting a certificate of recognition.  For specific legal advice or further information, please contact Robert Highmore.

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