Introduction of new provisions relating to tenants’ associations

Back in July 2017, the government consulted on new powers for tenants’ associations to make it easier for them to request and obtain contact information from landlords (and their agents) about leaseholders. The consultation “Recognising residents’ associations and their power to request information about tenants” ran from 25th July to 19th September 2017. And on 1st November the Tenants’ Associations (Provisions Relating to Recognition and Provision of Information) (England) Regulations 2018 will come into force.

These regulations change the landscape for (as yet unrecognised) residents’ associations on how they’ll obtain information about other qualifying tenants in their block.

 

Rights of Recognised Tenants’ Associations

A Recognised Tenants’ Association is a tenants’ association representing tenants (e.g. long leaseholders) which has been officially recognised either by a landlord or by the First Tier Tribunal (Property Chamber).

Many leaseholders form informal and unrecognised residents’ associations. And whilst many landlords (and their agents) engage with these informal associations, there’s no legal requirement for them to consult with, or provide information to an association representing leaseholders unless that association is formally recognised.

A Recognised Tenants’ Association has certain rights and can act on behalf of its members in respect of a number of issues. These include:

  1. asking for a summary of service charge costs;
  2. inspecting the relevant accounts and receipts;
  3. to be included in the section 20 consultation process;
  4. to ask for a written summary of the insurance cover and inspect the policy;
  5. be consulted about the appointment or reappointment of a managing agent; and
  6. to appoint a surveyor to advise on any matter relating to service charges payable to the landlord by one or more members of the association.

 

Duty on landlords to provide information

As part of the consultation, the government sought views on new measures which have been introduced by section 130 of the Housing and Planning Act 2016 (which inserts a new section 29A into the Landlord and Tenant Act 1985), which enables the secretary of a tenants’ association to obtain information from a landlord about qualifying tenants. Under the new Regulations, the secretary of a tenants’ association is able to serve a notice (called a “request notice”) on a landlord, which then requires that landlord to provide “known information” about leaseholders who are not already members of that association.

There are certain things which must be set out in the request notice, including:

  1. a schedule listing the current leaseholders who are already members of the tenants’ association;
  2. the postal address of the tenants’ association; and
  3. an e-mail address of the tenants’ association (if it has one).

The request notice must also be signed and dated by the secretary of the tenants’ association.

The request notice must also be accompanied by a statement that:

  1. the known information being requested will only be used to ask the relevant qualifying tenants if they wish to become members of the tenants’ association; and
  2. is signed and dated by the secretary.

 

What’s “known information”?

“Known information” means any of the following that’s either in the possession of the landlord or its managing agent:

  1. leaseholder’s name;
  2. the address of the dwelling for which the leaseholder pays a service charge;
  3. the address (if different) to which service charge demands are sent; and
  4. the leaseholder’s e-mail address.

 

What does a landlord do with the request notice?

When served with a request notice, a landlord must:

  1. acknowledge receipt of the request notice in writing; and
  2. inform the secretary of the tenants’ association that the landlord will provide a substantive response to the notice.

This must be done within seven days (beginning with the date on which the request notice was received).

 

Contacting leaseholders

Where a landlord has been served with a request notice, they must, as soon as practicable, send an information form to each leaseholder about whom known information has been requested.

Consideration was given by the government as to whether a prescribed form should be used for these purposes. There is no prescribed form under the regulations.

The “information form” must be a written document which:

  1. informs the leaseholder that a tenants’ association has requested that known information be provided;
  2. sets out what known information has been requested;
  3. identifies the tenants’ association that’s made the request;
  4. sets out the postal address of the tenants’ association and its e-mail address (if it has one);
  5. asks the leaseholder for written consent to disclose the known information, and informs the leaseholder that the known information will not be disclosed without that consent;
  6. informs the leaseholder that the tenants’ association has stated in its request that the known information will only be used to ask the leaseholder if they want to become a member of that association;
  7. informs the leaseholder that any queries relating to the tenants’ association should be directed to that tenants’ association;
  8. asks the leaseholder to reply within 28 days (beginning with the date of receipt of the information form):
    • confirming that they consent to all of the known information being disclosed;
    • confirming that they consent to some of the information being disclosed (and what that is);
    • confirming that they don’t consent to any of the information being disclosed;
  9. gives a postal address and e-mail address (if the landlord has one) which can be used to reply to the landlord; and
  10. signed and dated by the landlord.

Although there is no prescribed form, I expect that landlords (and their agents) will perhaps devise one if they receive multiple requests.

 

Landlord’s substantive response

A landlord has four months (beginning with the date on which notice was received) to provide a substantive response to the tenants’ association.

This substantive response must be in writing.

The substantive response must either:

  1. set out all known information which the landlord has consent to disclose; or
  2. that there’s no such known information.

The substantive response must also:

  1. state the number of leaseholders to whom the landlord sent an information form; and
  2. state the number of leaseholders who did not give written consent for known information to be disclosed.

The substantive response must also be signed and dated.

The Regulations also require the substantive response to be accompanied by a statement that the information contained in it is true to the best of the landlord’s knowledge and belief. This statement must also be signed and dated by the landlord.

 

What about late replies?

Where a landlord receives consent from a leaseholder to disclose known information after the four month period, the landlord must disclose that known information as soon as reasonably practicable after consent has been received. This is known as further disclosure.

 

Failures to comply

The First Tier Tribunal have been given jurisdiction to deal with landlords who fail to comply with their duties under the Regulations.

A tenants’ association can apply to the First Tier Tribunal for an order that requires a landlord to:

  1. acknowledge their request notice;
  2. contact relevant leaseholders;
  3. provide a substantive response to the request notice.

And the FTT have power to make an order that a landlord has failed to perform those duties without reasonable excuse.

 

Further resources

Over the course of the coming weeks, we’ll be publishing further resources in the resource section of our Hub dealing with these regulations.

 

 

Cassandra Zanelli

Widely recognised for her expertise in the industry, and listed among the 100 most influential people in residential leasehold management, Cass heads the team at PM Legal Services. Passionate about education and sharing knowledge, she's a regular speaker at conferences, events and seminars, having worked with leading organisations in the property management industry.

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