Articles

Service Charges and Management during the Covid-19 Pandemic: Legal Issues

1st May 2020

Mark Loveday BA(Hons) FCIArb MIRPM, barrister at Tanfield Chambers

General Editor, Service Charges and Management (4th Ed)

Summary of Key Points

  • Emergency legislation does not affect the liability of long leaseholders to pay service charges, ground rent or other sums due under residential leases.
  • The legislation does not affect obligations owed by leaseholders and landlords under their leases. In particular, landlords are still generally required to carry out repairs and to maintain premises.
  • The legislation has not suspended the operation of statutory leaseholder rights, such as the Right to Manage, limitations on service charges etc.
  • Although landlords will understandably treat requests by leaseholders for payment plans and other service charge concessions with sympathy, they should be aware that some forms of concessions may be open to challenge by other leaseholders. Such concessions should therefore be in proper form.
  • Statutory time limits have not been suspended during lockdown.
  • Demands and statutory notices during the emergency should generally continue to be served by post, not email.
  • The courts and property tribunals continue to operate during the pandemic, although delays will be inevitable. They have brought forward modified procedures to enable proceedings to be decided by judges without a hearing or by way of video or audio hearings. Applications to the tribunals may be made by email, but there may be an issue with payment of fees.

Introduction

Leaseholders and landlords[1] of residential leasehold properties face difficulties without any direct precedent in modern times. In particular, the sudden collapse in leaseholder incomes has had a dramatic effect on service charge receipts. The challenges pose numerous legal questions.

This article covers several key issues in residential service charge and management law arising from the Coronavirus pandemic and self-isolation.

[1] In this article, the term “landlord” includes a management company which is responsible for providing services and management under the terms of a lease. It will also generally include an RTM Company.

Emergency legislation

The key emergency legislation introduced for the duration of the emergency is the Coronavirus Act 2020. The Act includes provisions aimed at protecting certain residential tenants from eviction, but these provisions do not apply to long residential leases[1] save in rare circumstances[2]. The position can also be contrasted with business tenancies[3]. The primary legislation makes no specific reference to any of the main residential leasehold legislation[4].

In practical terms, the main restrictions on public activities during the Covid-19 pandemic are set out in the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”)[5]. These make no direct reference to landlord and tenant matters.

The government has recently announced further restrictions on the enforcement of rent arrears, but it appears these will only apply to commercial premises[6].

It follows the general statutory framework applicable to long leasehold residential properties largely remains unaffected by the lockdown.

Obligations under leases

The emergency legislation does not directly affect the contractual obligations owed by leaseholders or landlords under their leases.

Some aspects of leaseholder obligations to pay service charges and rents are dealt with below.

The pandemic has not interfered with landlords’ contractual obligations to repair and maintain premises. It is highly unlikely the emergency legislation or the disease itself would be treated as a frustrating event in law[7]. Nevertheless, the well-known social distancing provisions in regs. 4-7 of the Regulations will make it difficult for landlords to comply with their full range of management responsibilities. In particular, under reg.6(1), during the emergency period it is an offence for any person , including maintenance contractors, caretaking staff, cleaners etc., “to leave the place where they are living without reasonable excuse”.  Under reg.6(2), a reasonable excuse is deemed to include “travel for the purposes of work … where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living. There is official guidance about businesses generally[8]. In relation to landlords and tenants, the only guidance is specifically targeted at rental properties[9]. But that guidance makes clear that:

“Landlords’ repair obligations have not changed. Tenants have a right to a decent, warm and safe place to live – and it is in the best interests of both tenants and landlords to ensure that properties are kept in good repair and free from hazards.”

In the light of the above, it is considered staff and contractors employed by landlords to repair and maintain premises would have a reasonable excuse for working away from home.

Difficult issues may arise as to whether a suspension of works or services during the pandemic places a landlord in breach of covenant. Whether that is the case very much depends on the form of the covenant involved. Many modern leases have heavily qualified obligations for landlords to provide services or to undertake works. But in many cases, a landlord will be in breach of an absolute obligation to carry out works to common parts from the moment those parts are out of repair[10]. Specific legal advice should therefore be taken on whether landlords may properly delay works or withdraw services.

Concessions to leaseholders during lockdown

In many hundreds of thousands of cases, ground rent and interim quarterly service charge contributions fell due for payment on the 25 March 2020 quarter day or on other dates as provided in the leases of properties. Requests by leaseholders for concessions, such as payment plans, waivers or deferral of charges, are reportedly widespread. During the pandemic, landlords and managing agents will understandably treat concessions with a great deal of sympathy. But they should be aware of the legal considerations which may arise.

Service charge concessions to all leaseholders

There is no legal difficulty offering a concession to all leaseholders, even after service charge demands have been issued.

In most cases, an interim service charge covenant in a residential lease will not permit the landlord to increase an interim service charge part way through the year, or to demand ad hoc charges as and when they arise. The landlord’s remedy is to recover any excess expenditure through the balancing service charge at year end. But a service charge may generally reduced or deferred part way through the year, even without any formal agreement. In the celebrated case of Central London Property Trust v High Trees House[11], Denning J. decided that an agreement to waive rent during a period of emergency binds a landlord, notwithstanding that the tenant provides no consideration for the agreement.

In High Trees, the court held that the rent should return to the originally agreed level once the wartime conditions ended in 1945, but the landlord was unable to claim back the arrears accrued during the intervening period. If an agreement is made to defer or reduce service charges during the COVID-19 emergency, it is therefore important to establish in writing (i) how long the concession will apply[12], and (ii) whether the concession writes off the leaseholder’s liability completely or simply defers/abates that liability.

In some cases, an appropriate concession would be that service charges should be paid by monthly instalments – in place of a formal obligation to pay quarterly, or at six monthly intervals. Monthly instalment concessions are enforceable, whether by way of promissory estoppel or estoppel by convention[13]. Again, care should be taken to agree in advance the duration of the monthly payment concession.

Service charge concessions to individual leaseholders

Landlords may wish to grant hardship concessions such as payment plans to individual leaseholders. They should be aware these might give rise to legal issues.

The first possibility is that the individual leaseholder seeks a waiver of their liability to pay part of the service charges for all time. The writer considers it is not generally permissible for landlords to waive service charges only for some individual leaseholders, but not others. Landlords hold service charge moneys on a statutory trust for all leaseholders as beneficiaries[14]. Trustees of reversions owe a fiduciary obligation not to leave rents and other charges to go uncollected[15] and it is at least arguable the same obligation applies to trustees holding service charge accounts. Moreover, most modern residential leases include covenants that the landlord will enforce covenants in the leases of other residents in the premises. If a landlord puts it out of its power to demand arrears from one particular leaseholder, it may be open to challenge from the other leaseholders for breach of the obligation in their leases[16].

The second possibility is the individual leaseholder simply seeks a payment plan or deferral of liability. It is unclear whether this would also amount to a breach of trust or breach of covenant. In some cases, a deferral of an individual leaseholder’s liability would not injure the beneficial interests of other leaseholders in the service charge account, because the latter are protected by the right to receive interest from the late payer. But in other instances, interest on late payment accrues to the landlord, not the service charge account[17]. In such cases, a payment plan which did not provide for payment of interest is arguably a breach of duty.

In either case, it is permissible for a trustee holding service charge funds to defer or extinguish the liability of any individual lessee in the context of a compromise of legal proceedings[18] in a court or a property tribunal. Generally speaking, landlords may therefore write off arrears or defer payment by an individual leaseholder as part of a genuine attempt to settle litigation. Provided the landlord obtains appropriate legal advice, this is unlikely to amount to a breach of trust.

For these reasons, a private-sector landlord which proposes to offer concessions to individual lessees would be advised to do so in the context of an agreement to avoid litigation. For example, the leaseholder could be asked to make an admission of liability to pay service charges under Landlord and Tenant Act 1985 s.27A(4)(a).

Loans to leaseholders

It is unlikely a loan to a leaseholder which is paid out of the service charge account or form any uncommitted sinking funds is permissible. It is extremely unlikely the lease would include such a loan as a permissible relevant cost. As such, loans to a leaseholders should be only be made by landlords from their own resources.

Public-sector leases

Various statutory and discretionary schemes for mitigating the effect of high service charges for major works are commonplace in the public sector[19]. These concessionary schemes are available to individual leaseholders on a case by case basis. The schemes do not engage trust considerations, because the s.42 statutory trust does not apply to service charges paid by local authority leaseholders[20].

The statutory mitigation schemes are also unaffected by the Coronavirus legislation. These include the power to make discretionary waivers/reductions under the Social Landlords Discretionary Reduction of Service Charges (England) Directions 2014 and compulsory ‘capping’ under the Social Landlords Mandatory Reduction of Service Charges (England) Directions 2014.

Ground rent

Ground rents are the property of the landlord and are legally distinct from service charges. A landlord has an unfettered right to waive or defer its right to receive ground rents from any individual leaseholder. This may be a significant concession in cases of ‘full’ ground rents.

Interest and administration charges

Interest on late payment is mentioned above. The rate of interest is generally fixed by the terms of the lease. The lease may or may not also fix the level of other administration charges[21], such as ‘default fees’ charged where leaseholders are in arrears.

Administration charges do not generally accrue to the benefit of the service charge account. As such, they are treated in the same way as ground rent.

Borrowing to relieve pressure on service charge budgets

Whether a landlord may properly borrow money to relieve pressure on a service charge account effectively depends on whether they may add the interest paid on such a loan to the service charge account. This in turn depends on the terms of the lease[22]. Some leases permit borrowing. Others do not. The landlord will need to check the lease provisions carefully before incurring debt to support the service charge budget.

Time limits during lockdown

The Coronavirus Act 2020 does not extend or vary any of the statutory periods provided by the main leasehold management legislation. These include:

  • The period of 18 months for service charge demands in s.20B Landlord and Tenant Act 1985.
  • The periods for consultation about major works and QLTAs in the Schedules to Service Charges (Consultation Requirements) (England) Regulations 2013 and their Welsh equivalent.
  • The principal time limits for Notices Inviting Participation, Notices of Claim, applications to the Tribunal and deemed withdrawal in Right to Manage proceedings[23].
  • Periods for appeal from court judgments and Tribunal decisions[24].

A comprehensive list of such provisions is outside the scope of this article[25].

Moreover, the legislation does not affect any periods of time stipulated by a lease. For example, the landlord must provide annual service charge accounts by any specified date.

Statutory and contractual deadlines may or may not be extended or waived by agreement between the parties. In some cases, the consequences of breaching a deadline may or may not be fatal[26]. A detailed examination of time limits is beyond the scope of this article, but the important point to note is that none of them is affected by the Coronavirus outbreak.

Service of notices and demands

During the Coronavirus emergency, many parties, their agents and legal representatives will not be working or living at their usual addresses. Moreover, the postal system may be unreliable[27]. Plainly, it would be helpful during the emergency for landlords to have the ability to serve demands for payment and statutory notices by email or other means. Whether this is permissible depends on the terms of the individual lease and/or the statutory provision concerned.

Demands for payment

Demands for payment of ground rent, service charges and administration charges during the Coronavirus pandemic must still be in the proper form required by statute. They must comply with s.21B Landlord and Tenant Act 1985, ss.47 and 48 Landlord and Tenant Act 1987 and s.166(1) and Sch.11 para 4 of the Commonhold and Leasehold Reform Act 2002 .

As to service of demands, there are two main ways that leases frame the requirements for service.

Many (if not most) leases expressly incorporate s.196 Law of Property Act 1925[28]. This has not been amended by the Coronavirus Act. There is a presumption that a service charge demand properly posted by ordinary post is validly served on the leaseholder[29]. Moreover, serving a demand by recorded delivery is sufficient, even if the leaseholder does not receive it[30]. Equally, delivering the demand to the premises themselves is good service, although issues may arise about proving delivery[31]. Email is not a permissible method of service under s.196 of the 1925 Act[32].

Others make no provision for service. If so, the common law rules apply. At common law, notices etc. are generally sufficiently served if left at the intended recipient’s duly authorised agent, or at his dwelling house with his wife or servant[33].

In either case, landlords can prove service if (i) the leaseholder in fact received the demand for payment or (ii) it was properly served by one of the above means served on a duly authorised agent of the leaseholder or (iii) the leaseholder specifically authorised service by a particular means. In the latter case, it may well be that if the leaseholder authorises service by email, this makes email demands perfectly valid[34]. But the use of email to deliver service charge demands during the Coronavirus pandemic remains a highly risky option for landlords.

Notices required by statute

None of the main legislation expressly permits service of statutory notices by email. In the absence of express provision, the general principle is that where a statute lists other permitted methods of service with the introductory word “may”, there is a presumption the list is not exhaustive, and additional methods of service can be valid. Service by email in such circumstances is permissible, so long as it is shown the email has been received by the appropriate person: Knight v Goulandris[35]. Nevertheless, it is always advisable to avoid serving notices by email and to heed any indication the recipient does not accept service in this manner[36].

The position with the main notices required by leasehold management legislation is as follows:

  • Right to Manage: Service of Notices Inviting Participation, Counter-Notices and Notices of Claim are dealt with under s.111 Commonhold and Leasehold Reform Act 2002. This provides that a claim notice must be in writing, and “may” be given by post. This in turn engages s.7 Interpretation Act 1978, which provides that service is deemed effective by properly addressing, pre-paying and posting a letter containing the notice and, unless the contrary is proved, it is deemed to have been effected when the notice would be delivered in the ordinary course of post. In Assethold Ltd v 110 Boulevard RTM Co Ltd[37], it was held that a s.79(8) notice of claim could be properly served on qualifying tenants by email[38].
  • Major works/QLTAs. Neither the 1985 Act nor the Consultation Regulations provides any method of service of s.20 notices. It is doubtful whether service by email would strictly suffice, unless the landlord could prove the leaseholder actually received the relevant s.20 notice. But in practice, the risk of serving a s.20 notice by email is minimal. Even if not properly served, a landlord may always later apply for dispensation with the need to serve notices by a particular manner under s.20ZA Landlord and Tenant Act 1985, and there is a presumption such an order will be granted[39].
  • Forfeiture: Service of s.146 notices is governed by s.196 Law of Property Act 1925. This is dealt with above. Email is not a permissible method of service under s.196 of the 1925 Act[40].
  • 5 Notices. Notices under s.5 Landlord and Tenant Act 1985 are governed by s.54 Landlord and Tenant Act 1987. This is in similar terms to s.111 Commonhold and Leasehold Reform Act 2002. It is considered s.5 notices can be validly served by email.

Service on any agent duly authorised to receive a notice is the same as service on its principal, provided the recipient is correctly named on the face of the notice: Townsends Carriers Ltd v Pfizer[41].

Forfeiture

In recent years[42], the threat of forfeiture to support arrears recovery and to protect landlords’ costs position has become commonplace.

A temporary Practice Direction 51Z came into force on 27 March 2020 which imposed a general 90-day stay on new and current possession proceedings[43]. Although it embraces forfeiture claims, the stay only applies to “proceedings for possession” under CPR Pt.55. It does not therefore restrict preliminary steps taken by landlords before the issue of court proceedings, such as applications to the Tribunal under s.81 Housing Act 1996 or the service of s.146 Notices.

The courts during the pandemic

There is little doubt court administration and procedures have been severely affected by the Covid-19 pandemic. But although ‘live’ hearings effectively ceased in March 2020, the courts are continuing to work and process claims[44]. New procedures have been adopted for remote working.

Applications to start proceedings

There is no restriction in the legislation on issuing and filing claims with the courts during the pandemic. For money claims, such as claims for payment of arrears, the Money Claim Online scheme still applies, and it is possible to issue claims electronically[45].

The emergency Practice Direction 51Z mentioned elsewhere in this article directly affects only a small number of long leasehold claims for forfeiture of leases. But even in such cases, landlords may still issue and serve such claims.

Where a Letter of Claim is appropriate, such as in a debt claim, the position has been that it should be served by post[46]. But if the creditor has an email address or other contact details, the creditor may also send the Letter of Claim using those details. This has not changed.

Conduct of proceedings and hearings

Other than possession claims, existing court timetables, orders and directions are not automatically stayed. This applies to ordinary money claims for payment of ground rent, service charges and administration charges. However, the new Practice Direction 51ZA permits parties to agree an extension of up to 56 days in all cases without notifying the court[47], provided the agreed extension does not put at risk any hearing date. However, leasehold claims (other than pending trials) are not a Civil Court listing priority[48].

Guidance concerning court procedure during the pandemic appears at https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/#civilguidance. The courts have moved quickly to amend procedure rules and issue guidance to facilitate video and audio hearings. In particular, there is a temporary Practice Direction 51Y[49], a protocol for remote hearings[50] and written guidance on remote hearings[51]. The writer is aware of final orders made by the courts in management claims since the Covid-19 outbreak.

Tribunals during the pandemic

In 2019, the First-tier Tribunal (Property Chamber) in England received about 2,500 applications relating to residential property management. Of these, some 67% were disposed of by way of a hearing[52]. The vast bulk of litigation relating to residential service charges and management is in the property tribunals, including applications (by landlords or leaseholders) to determine liability to pay service charges under s.27A Landlord and Tenant Act 1985, applications for the appointment of a manager under Pt.IV Landlord and Tenant Act 1987, dispensation under s.20ZA Landlord and Tenant Act 1985 and Right to Manage applications under s.84(3) Commonhold and Leasehold Reform Act 2002.

Applications to start proceedings

There is no statutory or procedural restriction on making a new application to the First-tier Tribunal (Property Chamber) in England during the pandemic. However, all new applications must now be sent by email, rather than on paper, and they may be made to any of the regional offices of the Tribunal[53]. In Wales, the Leasehold Valuation Tribunal has requested that application forms should be sent by e-mail to the Tribunal office in Newport[54].

Application fees have caused confusion. Until recently, the property tribunals had no facilities for electronic payment of application fees and there was risk that applications would be invalid if applications were not accompanied by the appropriate fee [55]. In self-isolation it has become increasingly difficult for professional firms to pay fees by cheque (or occasionally by postal order).

To avoid this problem, it was originally suggested that amendments would be made to the relevant fees order to permit late payment of fees (by cheque) within 28 days. But the First-tier Tribunal (Property Chamber) has instead brought forward facilities to accept fees by bank transfer. The Tribunal will not invalidate an email application provided the fee is paid within 14 days [56].

The best advice during the pandemic is therefore to file applications by email, with the fee being paid to the Tribunal by direct bank transfer within 14 days”.

Conduct of proceedings and hearings

The London Regional office of the First-tier Tribunal (Property Chamber) handles the largest number of residential leasehold management applications. On 19 March 2020, it issued generic directions postponing the hearing of all current cases until after 29 May 2020 and postponing any current directions. Other regions have issued bespoke directions in individual claims, which frequently involve the adjournment of hearings dates.

There is a plethora of new guidance on tribunal proceedings during the lockdown, including a Pilot Practice Direction applicable to both Upper Tribunal (Lands Chamber) and First-tier Tribunal (Property Chamber)[58]. The pilot Practice Direction suggests tribunals will a operate a triage procedure to identify cases suitable for paper hearings. If the applications or appeals are not to proceed as paper hearings, they will ordinarily proceed as remote hearings. Site inspections by tribunal members are suspended “with immediate effect”, although Tribunals may consider ‘drive-by’ inspections where appropriate.

Published guidance in relation to the First-tier Tribunal (Property Chamber)[59] suggests that in England:

  • Face-to-face hearings are not being conducted for the time being. Applications will be dealt with on paper or by video or audio proceedings.
  • The Tribunal intends to re-list currently listed cases for a remote hearing or paper determination. Parties should not expect to hear from the Tribunal until early May 2020.
  • Where applications have not yet been listed for a hearing, parties should wait to hear from the Tribunal about directions or the convening of a remote CMC.
  • Urgent cases may be considered for hearing on paper or remotely.

Amendments have been made to the Property Chamber procedure rules to facilitate audio and video hearings in England[60]. In some circumstances, the Tribunal may insist on a disposal of proceedings on the papers alone without the consent of the parties.

In Wales, the Leasehold Valuation Tribunal has indicated it will not be listing hearings until June 2020 at the earliest, when the situation will be reviewed[61].

As far as appeals are concerned, amendments have been made to the Upper Tribunal (Lands Chamber) rules to facilitate audio and video hearings [62]. There is also Presidential Guidance on the conduct of proceedings in during the Covid-19 Pandemic[63].

However, it should be stressed that the pattern of proceedings is far from universal, and is subject to review on almost a daily basis. For example, a number of hearings have been listed for video hearings in the Southern Region from early May First-tier Tribunal (Property Chamber) hearing in a Right to Manage claim listed for hearing from early May 2020.

Offences under the Act

Mark Loveday

Tanfield Chambers

30 April 2020

[1] Section 81 and Sch.19 of the Act apply to (i) protected and statutory tenants under Rent Act 1977 (ii) secure and flexible tenancies under Housing Act 1985 (iii) assured and assured shorthold tenancies under Housing Act 1988 (iv) and introductory and demoted tenancies under Housing Act 1996.

[2] The exception arises in the case of long leasehold properties with ground rents of £250pa (or £1,000pa in London), which may be assured tenancies: see paragraph 3A of Schedule 1 to the Housing Act 1988 Act: see “A not so short assured shorthold tenancy” (Tanfield Chambers article, 20 October 2018).

[3] Section 82.

[4] For example, Landlord and Tenant Act 1985, Landlord and Tenant Act 1987 and Commonhold and Leasehold Reform Act 2002.

[5] The Welsh equivalents are the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020.

[6] https://www.gov.uk/government/news/new-measures-to-protect-uk-high-street-from-aggressive-rent-collection-and-closure.

[7] For example, see Canary Wharf (BP4) T1 Ltd v European Medicines Agency [2019] EWHC 335 (Ch); [2019] E.G.L.R. 17. The question is whether performance is rendered radically different by a fundamental change in circumstances. In Canary Wharf, the lessee retained legal capacity to perform its covenants in the lease.

[8] For example, Guidance for employers and businesses on coronavirus (COVID-19).

[9] Coronavirus (COVID-19) Guidance for Landlords and Tenants:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/876500/Consolidated_Landlord_and_Tenant_Guidance_COVID_and_the_PRS_v4.2.pdf.

[10] British Telecommunications plc v Sunlife Assurance Society plc [1996] Ch. 69. But see the qualification suggested for blocks of flats in Earle v Charalambous [2007] H.L.R. 8, CA and the discussion in Dilapidations: The Modern Law and Practice (6th Ed.) at Chapter 22 .

[11] [1947] KB 130.

[12] The options seem to be (i) an agreement which lasts for a specified period, e.g. for a period of X months or until Y date, or (ii) an agreement defined by reference to a specified date. Legislation has several ‘sunset dates’ which could be adopted to define the duration of the lockdown, such as the date s.55 of the Act expires. But it is submitted a time-limited concession would be simpler.

[13] For examples of the application of these principles in service charge claims: see Jetha v Basildon Court Residents Co Ltd [2017]UKUT 58 (LC) and Southwark v Akhtar, below.

[14] Section 42 Landlord and Tenant Act 1987.

[15] Lewin on Trusts (12th Ed) at 34-54. Trustees can be in breach of their general duty by simply leaving debts uncollected: see for example, Re: Greenwood (1911) 105 LT 509.

[16] By analogy with Duval v 11-13 Randolph Crescent Ltd [2018] EWCA Civ 2298. We are awaiting the Supreme Court decision on the appeal.

[17] See St Mary’s Mansions v Limegate Investment Co [2003] 1 E.G.L.R. 41, and Service Charges & Management (4th Ed.) at para 8.05.

[18] Lewin on Trusts (12th Ed) at 36-102 to 104.

[19] For example: https://www.camden.gov.uk/documents/20142/23687658/Major+Works+Guide+for+Leaseholders+-+June+2016.pdf/74d2b2a0-493d-d897-6441-af838f3766ae.

[20] See definition of “tenant” in LTA 1987 s.42(1) and s.58 of the Act.

[21] There is a definition of such charges for certain statutory purposes: Sch.11 para 1(1) CALRA 2002.

[22] See, for example, Tudor Roberts v Countryside Residential (South West) Ltd [2017] UKUT 386 (LC) and Frobisher (Second Investments) v Kiloran Trust Co. Ltd [1980] 1 W.L.R. 425. For a fuller discussion, see Service Charges and Management (5th Ed) at paras 8.02 to 8-03.

[23] See s.78(5)(b), s.79(2), s.80(6), s.80(7), 84(4) and s.87(2) CALRA 2002.

[24] Rule 52(2) Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, rule 21(2) Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 and reg.20(a) Leasehold Valuation Tribunals (Procedure) (Wales) Regulations 2004.

[25] The author has prepared a non-exhaustive list of other statutory time limits:

  • Time limits relating to the appointment of a statutory manager under LTA 1987 s.23(1)(a).
  • The period of 21 days in s.1 and s.2 LTA 1985.
  • The time limits relating to summaries of relevant costs in s.21(4) and s.22(4) LTA 1985.
  • The time limits relating to consultation about managing agents in s.30B(3) and s.30B(4)(a)(i) LTA 1985.
  • The dates relating to management audits under LRHUDA 1993 s.81(4), 81(2), s.81(3), s.81(4), s.81(6), s.81(7).
  • The minimum period to be specified in “s.5 Notices” relating to the Rights of First Refusal: see LTA 1987 s.5A(4) and (5), s.5B(5) to (8), s.5C(4), s.5D(4) and (5) and s.5E(3). Also, the periods of protection afforded by such notices: see s.7(1) and (4) of the 1987 Act. Other time limits relating to the Right to First Refusal include LTA 1987 s.8(3), 8A(2), 8A(4), s.8A(6), s.8B(2), s.8B(3), s.8B(5), s.8C(3) s.8D(2)s.8E(3), s.9A(3), s.9B(2), s.10(5), s.11A(4), s.12B(3), s.12C(3), s.17(4)(a) and s.19(2)(b).
  • The 14-day restrictions on forfeiture proceedings in s.81(2) HA 1996 and s.168(3) CALRA 2002.
  • The dates for rights exercisable by Tenants’ Association surveyors under paras 3(4), 5(1) and 5(3) Sch.4 HA 1996.
  • The time limits in relation to insurance under s.164(3) CALRA.
  • The two-year period for an application for an Acquisition Order in s.29(3) LTA 1987.
  • The limitation periods for recovering rents and service charges under the Limitation Act 1980.
  • The numerous time limits in Right to Manage legislation include s.79(2), s.80(6), s.82(3), s.83(3), s.84(1), s.84(4), s.90, s.93(4), s.98(4), s.107(2(b) CALRA 2002.
  • The various time limits in the body of the Service Charges (Consultation Requirements) (England) Regulations 2013 and their Welsh equivalent.
  • The dates for ground rent notices in s.166(3) CALRA 2002.

[26] See Natt v Osman [2014] EWCA Civ 1520; 1 W.L.R. 1536 and Elim Court RTM Co Ltd v Avon Freeholds Ltd [2017] EWCA Civ 89; [2017] L. & T.R. 15, CA. For an example where failure to comply with a time limit invalidated a notice, see Triplerose v Mill House RTM Co [2016] UKUT 80 (LC); [2016] L. & T/R. 23, where a notice of invitation to participate in a right to manage claim had to be given at least 14 days before a notice of claim.

[27] The Royal Mail has amended guaranteed delivery dates and withdrawn certain features of Special Delivery https://www.royalmail.com/coronavirus-changes-service.

[28] As amended by Recorded Delivery Service Act 1962.

[29] Southwark LBC v Akhtar [2017] UKUT 150 (LC).

[30] See, for example, re: 88 Berkeley Road, NW9 [1971] Ch 648.

[31] See, for example, the recent case of 38/41 CHG Residents Company Ltd v Hyslop [2020] UKUT 21 (LC).

[32] E.ON UK Plc v Gilesports Ltd [2012] EWHC 2172 (Ch), [2013] 1 P.&C.R. 4.

[33] Woodfall 17-241.

[34] See No.1 West India Quay (Residential) Ltd v East Tower Apartments Ltd [2016] EWHC 2438 (Ch)

[2017]; 1 P. & C.R. 8 at para 71.

[35] [2018] EWCA Civ 237; [2018] 1 W.L.R. 3345. A decision in relation to the Party Wall etc. Act 1996.

[36] See, for example, the County Court cases of Stoll Construction Ltd v Kelly (Brentford CC, 3 November 2000, unreported); Achieving Perfection Ltd v Gray (Brighton CC, 18 May 2015, unreported); and Cowthorpe Road 1-1A Freehold Ltd v Wahedally CLCC (Ch), 16 February 2016.

[37] [2017] UKUT 316 (LC); [2017] 4 W.L.R. 181. The position might be different if the leaseholder has previously indicated it will not accept service by email: Butterworths Property Law Service at 948.1.

[38] The Association of Leasehold Enfranchisement Practitioners has published a Protocol for Service of Initial Notices and Counter-Notices During COVID-19 Pandemic. The protocol relates to service of notices under LRA 1967 Act and LRHUDA 1993, but it is recommended it is adopted for Right to Manage claims.

[39] Daejan Investments Ltd v Benson [2011] EWCA Civ 38; [2011] 1 W.L.R. 2330.

[40] E.ON UK Plc v Gilesports Ltd [2012] EWHC 2172 (Ch), [2013] 1 P.&C.R. 4.

[41] (1977) 23 P. & C.R. 361.

[42] Effectively since Freeholders of 69 Marina, St Leonards-On-Sea v Oram [2001] EWCA Civ 1258; [2012] L.& T.R. 4. This is notwithstanding the decisions in later cases such as Barrett v Robinson [20154] UKUT 322 (LC) and statutory provisions such as Housing Act 1996 s.81(1).

[43] Updated 20 April 2020.

[44] For a snapshot of the current situation in the County Court at Central London, see Property Bar Association Newsletter, 27 April 2020. Despite the lockdown, some 1,500 orders were made in the County Court at Central London in the week commencing 20 April 2020.

[45] CPR PD 7E.

[46] Pre-Action Protocol for Debt Claims para 3.3.

[47] Modifying CPR rule 3.8(3) and (4).

[48] HMCTS Coronavirus update: Civil Court Listing Priorities (1 April 2020).

[49] Video or audio hearings during coronavirus pandemic (24 March 2020).

[50] Civil Justice in England and Wales: Protocol regarding Remote Hearings (26 March 2020).

[51] Civil Court guidance for the conduct of remote costs hearings (22 March 2020).

[52] Source, Freedom of Information Act Request made by the writer.

[53] Practice Direction Property Chamber, First-tier Tribunal Lodging Applications and Documents by Email and Areas in the Property Chamber (26 March 2020).

[54] https://residentialpropertytribunal.gov.wales/.

[55] Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 Rule 11 and para. 4 of the First-tier Tribunal (Property Chamber) Fees Order 2013.

[58] Pilot Practice Direction: Contingency arrangements in the First-tier Tribunal and the Upper Tribunal (19 March 2020).

[59] First tier Tribunal (Property Chamber) Guidance for users during corvid 19 pandemic  (19 March 2020).

[60] Presidential Guidance on the conduct of proceedings in the Upper Tribunal, Lands Chamber during the Covid-19 pandemic (24 March 2020).

[61] https://residentialpropertytribunal.gov.wales/.

[62] New rules 48(3A) and 48A of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, inserted by the Tribunal Procedure (Coronavirus) (Amendment) Rules 2020.

[63] Presidential Guidance on the conduct of proceedings in the Upper Tribunal, Lands Chamber during the Covid-19 pandemic (24 March 2020).

Team: Mark Loveday
Expertise: Service Charges

 

Related areas

Newsletters

Sign up to our newsletter mailing list for the latest news.

Subscribe

Home