First-tier Tribunal Grants Recognition to Tenants' Association

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BK/HTA/2020/0001 HMCTS code (paper, video, audio) : P: PAPER REMOTE Property : The Colonnades, [ADDRESS], London [POSTCODE]. Applicant: [redacted] [COMPANY]. Representative :

Ms. [COUNSEL]. [COUNSEL]. Respondent : [redacted] : [NAME] of [NAME] : [NAME] under S.29 Landlord and Tenant Act 1985 for recognition of a [COMPANY]. Tribunal members : Judge Hamilton-Farey Remote Paper : Remote Paper Determination. Date of decision : 28 August 2020

DECISION

Covid-19 pandemic: description of hearing: This has been a remote determination on the papers which has not been objected to by the parties. The form of remote hearing was P: PAPERRMOTE. A face-to-face hearing was not held because it was not practicable, and all issues could be determined on paper]. The documents that I was referred to are in an [NAME] and supporting documents, including confirmation from the respondent that they would not recognise the [COMPANY], and e-mail correspondence from the members of the association, confirming their agreement to join that association. I have noted this correspondence in reaching my decision. The order made is described at the end of these reasons. Decision of the tribunal (1) The tribunal GRANTS a Certificate of Recognition under S.29 of the Landlord and Tenant Act 1985 to the applicants for a period for four years with effect from today’s date. (2) The certificate is appended to this decision and reasons and has been electronically signed. (3) The relevant legislation and regulations are appended to this decision. The [NAME]

1. The applicants apply for a Certificate of Recognition under S.29 of the Landlord and Tenant Act 1985 (“the 1985 Act”) in relation to the [COMPANY] formed in relation to the property known as the Colonnades, [ADDRESS], London [POSTCODE] (“the Property”). The [NAME] is dated 9 June 2020.

2. The [NAME] relates to three blocks of flats/maisonettes and [APPELLANT] mews houses. The three blocks are numbered 100, 200 and 300. In total there are 228 flats/maisonettes and 14 mews houses.

3. In support of the [NAME], the applicants have included copies of minutes of EGM’s, circulars to [NAME], and copies of e-mail correspondence from [NAME] to confirm their agreement to join the Association. At the time of the [NAME] 125 [NAME] had confirmed that they wished to join the association and representing 51.65% of the total potential members. This number meets the recommended threshold of 50% membership.

4. Having held their EGM (at which 102 members attended), the applicants contacted the respondent landlord and agent on 10 March 2020. The landlord responded to say that all applications should be referred to the agents. The agents responded on 13 March 2020 to say that the landlord would not recognise the association, because there was already a recognised [NAME] which had been in existence for over 20 years, was actively and engaged in communication with [NAME] and held a [NAME]’ AGM.

5. The representatives of the association then responded to say that this was not the case. That the ‘informal’ [COMPANY] had come into effect in 2017, had not engaged with [NAME] and did not provide regular updates of issues in the buildings. The applicants also say that this group withheld relevant information from [NAME] and failed to consult with them properly – it is not clear whether this was a S.20 Consultation under the Landlord and Tenant Act 1985, however this would not have been a duty under the relevant Regulations for a [NAME]’ association in any event.

6. The applicants also say that they sent out copies of the EGM minutes to all [NAME], including those who were members of the ‘informal’ group regarding the formation of this association, but had received no objections. They also say that there had never been a democratic vote in relation to the informal group and that no formal constitution existed.

7. Finally, the applicants say that no certificate of recognition has been granted by the freeholder or its agents, and there are no records of such recognition having been made. The issues 8. The issues before the tribunal, are whether the applicants had met the criteria for recognition of an association. The Regulations appended to this decision set out those criteria.

9. In particular, the tribunal has to have regard to whether there is a majority of members; whether there is an appropriate constitution; and whether there is another recognised association in existence.

10. The tribunal is satisfied that the membership exceeds that required by the regulations (50%) and that there is an appropriate constitution in place.

11. The final consideration is whether there is already a [NAME]’ association in place. On balance I find that there is not.

12. No evidence has been provided in the form of minutes from AGM’s, or any documents demonstrating that the landlord has recognised the informal group mentioned above. I would expect a landlord to provide these documents, especially when relying on an existing association, to show that the buildings already had a recognised association.

13. I am therefore not satisfied that a recognised association already exists as defined in the Regulations, and I therefore grant a Certificate of Recognition to the [APPELLANT] and [COMPANY], with effect from 28 August 2020, for a period of four years, expiring on 27 August 2024.

Name: Judge Hamilton-Farey Date: 28 August 2020

Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written [NAME] for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28-day time limit, such [NAME] must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).

29.— Meaning of “recognised [COMPANY]. (1) A recognised [COMPANY] is an association of [[NAME] (whether with or without other tenants)] which is recognised for the purposes of the provisions of this Act relating to service charges either— (a) by notice in writing given by the landlord to the secretary of the association, or (b) by a certificate— (i) in relation to dwellings in England, of the First-tier Tribunal; and (ii) in relation to dwellings in Wales, of a member of the local rent assessment committee panel. (2) A notice given under subsection (1)(a) may be withdrawn by the landlord by notice in writing given to the secretary of the association not less than six months before the date on which it is to be withdrawn. (3) A certificate given [under subsection (1)(b)(i) may be cancelled by the First-tier Tribunal, and a certificate given under subsection (1)(b)(ii)] may be cancelled by any member of the local rent assessment committee panel. (4) In this section the “local rent assessment committee panel” means the persons appointed by the Lord Chancellor under the Rent Act 1977 to the panel of persons to act as members of a rent assessment committee for the registration area [ in Wales] in which [the dwellings let to the [NAME] are situated, and for the purposes of this section a number of tenants are [NAME] if each of them may be required under the terms of his lease to contribute to the same costs by the payment of a service charge.]

(5) The Secretary of State may by regulations specify— (a) the procedure which is to be followed in connection with an [NAME] for, or for the cancellation of, a certificate under [subsection (1)(b)(ii)] (b) the matters to which regard is to be had in giving or cancelling [a certificate under subsection (1)(b)] (c) the duration of such a certificate; and (d) any circumstances in which a certificate is not to be given under subsection (1)(b). (6) Regulations under subsection (5)— (a) may make different provisions with respect to different cases or descriptions of case, including different provision for different areas, and (b) shall be made by statutory instrument which shall be subject to annulment in pursuance

of a resolution of either House of Parliament.

Tenants’ Associations (Provisions Relating to Recognition and Provision of Information) (England) Regulations 2018/1043

1.— Citation, commencement, and [NAME] (1) These Regulations may be cited as the Tenants’ Associations (Provisions Relating to Recognition and Provision of Information) (England) Regulations 2018 and come into force on 1st November 2018. (2) These Regulations apply in relation to dwellings in England only. 2. Interpretation of Part 2

In this Part— ”certificate” means a certificate given by the First-tier Tribunal under section 29(1)(b)(i) of the Landlord and Tenant Act 1985 (certificate recognising a [COMPANY]); ” related premises” means more than one premises which have a common landlord. 3. Matters to which regard must be had by the First-tier Tribunal in giving a certificate

The First-tier Tribunal must, in particular, have regard to the following matters in giving a certificate— (a) the composition of the membership of the [COMPANY]. (b) the [COMPANY]’s rules regarding membership, including whether tenants who are not [NAME] are entitled to become members. (c) the [COMPANY]’s rules regarding decision [NAME]. (d) the [COMPANY]’s rules regarding voting. (e) the extent to which any fees or charges payable in connection with membership of the [COMPANY] apply equally to all members. (f) the extent to which the constitution of the [COMPANY] takes account of the interests of all members. (g) the extent to which the [COMPANY] is independent of the landlord of the dwellings to which the association relates. (h) whether the [COMPANY] has a [NAME], secretary, and [NAME]. (i) whether the constitution of the [COMPANY] may be amended by resolution of the members and the rules regarding amendment.

(j) whether the [COMPANY]’s constitution, accounts and list of members are— (i) kept up to date; and (ii) available for public inspection. (k) the extent to which the association operates in an open and transparent way. 4.— Circumstances in which a certificate is not to be given (1) The First-tier Tribunal must not give a certificate to a [COMPANY] in relation to a premise where the [COMPANY] represents fewer than 50% of the [NAME] of dwellings situated in the premises. (2) But where— (a) the [COMPANY] represents [NAME] in dwellings situated in related premises; and (b) those [NAME] contribute to the same costs by the payment of a service charge, the First-tier Tribunal must not give a certificate to the [COMPANY] in relation to the related premises if the [COMPANY] represents an aggregate of fewer than 50% of the [NAME] of dwellings situated in the related premises. (3) The First-tier Tribunal must not give a certificate to a [COMPANY] in relation to any premises if a certificate has previously been given to a [COMPANY] in relation to the premises and the certificate is in force. (4) The First-tier Tribunal must not give a certificate to a [COMPANY] if the First-tier Tribunal is not satisfied that the constitution and rules of the [COMPANY] are fair and democratic. (5) Paragraphs (1) and (3) do not apply where— (a) the landlord has failed to comply with an order made by the First-tier tribunal in relation to the [COMPANY] under regulation 11 (an order requiring the landlord to comply with regulation 8, 9 or 10); and (b) the tenant’s association represents a substantial number of [NAME] of dwellings in the premises or, as the case may be, the related premises. (6) This regulation is without prejudice to any powers the First-tier Tribunal has, including its powers to not give a certificate.

5. Matters to which regard must be had by the First-tier Tribunal in cancelling a certificate

The First-tier Tribunal must, in particular, have regard to the following matters in cancelling a certificate— (a) whether the certificate was obtained by deception or fraud. (b) whether the [COMPANY] to which the certificate relates represents fewer than 50% of the [NAME] of dwellings situated in the premises to which the association relates. (c) where the [COMPANY] relates to related premises and the [NAME] in dwellings situated in the related premises contribute to the same costs by the payment of a service charge, the [COMPANY] to which the certificate relates represents an aggregate of fewer than 50% of the [NAME] of dwellings situated in the related premises; (d) whether the office of [NAME], [NAME] or secretary of the [COMPANY] are vacant and, if so, the length of time for which the position has remained vacant. (e) whether any provision of the constitution of the [COMPANY] has been breached and, if so, the extent and nature of the breach. (f) 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 not been implemented. (g) any irregularities in the [COMPANY]’s— (i) voting process. (ii) decision [NAME]. (iii) implementing of decisions; or (iv) recording of decisions, and the nature of the irregularities and their effect.

6. Interpretation of Part 3

In this Part— ”information form” has the meaning given in regulation 9(2) (landlord’s method of contacting relevant [NAME] tenants1); ”known information” has the meaning in regulation 7(6) (request by relevant [COMPANY] for known information); ”request notice” has the meaning given in regulation 7. 7.— Request by relevant [COMPANY] for known information (1) The secretary of a relevant tenants’ association1 may serve a notice (a “request notice”) on the landlord of a dwelling to which the association relates which contains

a request for the landlord to provide known information about relevant [NAME] who are not members of the association. (2) A request notice must— (a) include— (i) a schedule listing the relevant [NAME] who are members of the relevant [COMPANY]. (ii) the postal address of the relevant [COMPANY]; and (iii) an email address for the relevant [COMPANY] if it has one; and (b) be signed and dated by the secretary of the relevant [COMPANY]. (3) Where the secretary of a relevant [COMPANY] gives more than one request notice in respect of the same relevant [NAME] tenant, the later notice supersedes all earlier notices. (4) The request notice must be accompanied by a statement that— (a) the known information being requested will be used only to ask the relevant [NAME] concerned if they wish to become members of the relevant [COMPANY]; and (b) is signed and dated by the secretary of the relevant [COMPANY]. (5) A request notice is duly served on a landlord under this regulation if it is served on the landlord’s managing agent. (6) In this regulation— ” known information”, in relation to a relevant [NAME] tenant (” T”), means any of the following information that is in the possession of the landlord or the landlord’s managing agent— (a) T’s name. (b) the address of the dwelling for which T pays a service charge. (c) any address to which service charge demands for T are sent. (d) T’s email address. ” managing agent” means an agent appointed by the landlord to discharge any of the landlord’s obligations to the tenants represented by the relevant [COMPANY] which relate to the management by the landlord of the tenants’ dwellings. 8.— Landlords’ duty: acknowledgement of request notice

(1) A landlord who has been served with a request notice must, within 7 days beginning with the date on which the request notice was received— (a) acknowledge receipt of the request notice in writing; and (b) inform the secretary of the relevant [COMPANY] that the landlord will provide a substantive response to the notice. (2) Where the landlord does not consider the notice received to be a valid request notice, the landlord must, within 7 days beginning with the date on which the notice was received— (a) inform the secretary of the relevant tenant’s association in writing that the landlord will not provide a substantive response to the notice because the landlord does not consider the notice received to be a valid request notice; and (b) give reasons as to why the landlord does not consider the notice received to be a valid request notice. (3) ”Substantive response” has the meaning given in regulation 10(2).

9.— Landlords’ duty: contacting relevant [NAME] (1) A landlord who has been served with a request notice must, as soon as practicable after the request notice was received, give an information form to each relevant [NAME] tenant (”T”) in relation to whom known information has been requested. (2) An” information form” is a written document which— (a) informs T that a relevant [COMPANY] has requested that the landlord provide known information relating to T. (b) sets out what known information has been requested in relation to T. (c) identifies the relevant [COMPANY] that has made the request. (d) includes— (i) the postal address of the relevant [COMPANY]; and (ii) an email address for the relevant [COMPANY] if it has one. (e) asks T for written consent to disclose the known information to the relevant [COMPANY]. (f) informs T that the known information will not be disclosed without that consent. (g) informs T that the relevant tenant’s association has stated in its request that the known information will be used only to ask T if T wishes to become a member

of the relevant [COMPANY]. (h) informs T that any queries relating to the relevant [COMPANY] should be directed to the relevant [COMPANY]. (i) asks T to reply within 28 days beginning with the date of receipt of the information form— (i) confirming that T consents to all of the known information being disclosed to the relevant [COMPANY]. (ii) confirming that [NAME] consents to some of the known information being disclosed to the relevant [COMPANY], and stating the known information that may be disclosed; or (iii) confirming that [NAME] does not consent to any of the known information being disclosed to the relevant [COMPANY]. (j) gives a postal address and, if the landlord has one, an email address, which can be used to reply to the landlord; and (k) is signed and dated by the landlord. 10.— Landlords’ duty: substantive response to request notice (1) A landlord who has been served with a request notice which does not fall within regulation 8(2) must provide a substantive response to the relevant tenant’s association which served the notice within 4 months beginning with the date on which the notice was received (”the 4 month period”). (2) A” substantive response” is a written document which— (a) states— (i) all known information requested in the request notice which the landlord has consent to disclose; or (ii) that there is no such known information. (b) states the number of relevant [NAME] to whom the landlord sent an information form in connection with the request notice. (c) states the number of relevant [NAME] in relation to whom known information was requested who did not give written consent for known information to be disclosed by the landlord; and (d) is signed and dated by the landlord. (3) The substantive response must be accompanied by a statement that— (a) the information contained in the substantive response is true to the best of the landlord’s knowledge and belief; and

(b) is signed and dated by the landlord. (4) Where the landlord receives consent from a relevant [NAME] tenant to disclose known information after the 4-month period, the landlord must disclose the known information as soon as reasonably practicable after the consent is received (” further disclosure”). (5) Further disclosure under paragraph (4) must— (a) be in writing; and (b) be accompanied by a statement that— (i) the information comprising the further disclosure is true to the best of the landlord’s knowledge and belief; and (ii) is signed and dated by the landlord 11.— Power of First-tier Tribunal to remedy failure by a landlord to comply (1) The secretary of a relevant [COMPANY] may apply to the First-tier tribunal for an order requiring the landlord to perform a duty under regulation 8, 9 or 10 of these Regulations. (2) The First-tier Tribunal may make such an order where— (a) the landlord has failed to perform a duty under regulation 8, 9 or, as the case may be, 10; and (b) the landlord does not have a reasonable excuse for failing to perform the duty.