Ok, so it’s old news that the Housing Act 2004 has more holes in it than ‘Emmental’, but the latest Residential Property Tribunal (RPT) decision received by Derby City Council confirms that local authorities might now face real difficulties in securing repairs to blocks of flats where a Right to Management Company (RTM) has formed. (By Andy Cope Senior EHO, Derby City Council).
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Decision: BIR/00FK/HIN/2010/0020 indicates that, where an RTM company exists, Improvement Notices can’t be served on either the freeholder of the building OR the RTM company, leaving councils with few options for securing repairs and improvements to communal areas. This judgement is particularly topical, given the current pressures councils and Fire Authorities face in getting to grips with older blocks of flats that often have insufficient fire containment.
Ironically, the leaseholders of flats only tend to form RTM companies when the building’s freeholder and their management have failed to collect and/or appropriate service charges to maintain common areas. So this RPT decision is a ‘double blow’ for leaseholders and any of their tenants, who are ultimately the real losers following this judgement. Councils may now be powerless to secure repairs to communal areas using the Housing Act 2004, where an RTM company exists.
Now don’t get me wrong, I think the RPT probably made the correct decision in the circumstances (taking 19 weeks from hearing to decision), but their hands were ultimately tied by the lack of consideration the Housing Act 2004 legislators had for the conflicting Commonhold and Leasehold Reform Act 2002. But the Council, of course, also had no choice but to serve the Improvement Notice in this case, as it was legally obliged to do something with the Category 1 hazards found, and an Improvement Notice was considered to be the most appropriate course of action in the circumstances. This is unfortunately just another example of many where the Housing Act 2004’s poor drafting, lack of detailed guidance and lack of consideration of other legislation continues to cause damage, inflicting unnecessary costs on all the parties involved, and ultimately failing to secure improvements in housing standards; crackers!
I note the new Local Government guidance relating to ‘Fire Safety in Purpose Built Flats’ has just been published, and this too appears to be another victim of the poorly worded Housing Act. While the guidance highlights the ‘overlaps’ between the Regulatory Reform Fire Safety Order and Housing Act 2004, it perhaps wisely avoids any detailed discussion on jurisdictions for ‘common parts’ when it comes to enforcement. There is also little discussion on where communal fire precautions start and finish from hallway to flat, and sensibly avoids the more controversial topics of whom the ‘responsible person’ might be for fire precautions where a freeholder, management company and/or RTM company are involved. These are understandable omissions, given the complexities of leasehold law and lack of clarity afforded by the Housing Act 2004. This legislation will no doubt form many future banquets for the lawyers, so bring on the cheese course!
This article reflects the personal views of the author and not necessarily those of his employer.
Further information.
The RPT Decision is available here.
