A recognised tenants’ association is the first step to leaseholder empowerment. From a landlord’s point of view this means the first sign of trouble.
It can only lead to further mishaps such as right to manage and the closure of some income streams which may have flowed rather more generously than they should have done.
Obviously, all blocks of flats should have an RTA and they should be created when the leases are sold: along with the far more powerful residents’ management company, which means leaseholders actually appoint the management to a site.
Inevitably, there have been controversies, such as the landlord of West India Quay, a prime site in London’s Docklands, spending £85,000 on a pricey legal team headed by a QC in order to frustrate an RTA.
LKP represented the leaseholder in tribunal and won:
West India Quay’s victory against £74,560 legal onslaught … for a recognised residents’ association
Unfortunately, efforts to reform the rules around RTAs spectacularly failed in autumn 2018 with changes which, if anything, made the position of RTAs even worse.
LKP was not popular when it pointed this out, along with a couple of the sector’s barristers:
What is a tenants’ association?
A tenants’ association is a group of tenants (normally leaseholders) who hold houses or flats on leases/tenancies from the same landlord on similar terms, which contain provisions for the payment of service charges etc.
What is a Recognised Tenants’ Association?
A Recognised Tenants’ Association is one where the members have come together to represent their common interests so that the association can act on the tenants’ behalf, and which has been formally recognised. An association is recognised either by notice in writing from the landlord to the secretary of the association, or by application to the Tribunal.
Where estates are concerned, it may be possible for more than one association to be recognised, for example, for separate blocks of flats within the estate, providing there is no duplication and the interests of the leaseholders/tenants can be seen to differ.
What powers does a Recognised Tenants’ Association have?
The secretary of a Recognised Tenants’ Association can, with the members’ consent, act on behalf of its members in respect of a number of issues, some of which are in addition to that of an individual member.
Here are a few useful templates to download that an RTA could deploy:
Download a template for the leaseholder’s request for written summary of relevant costs incurred under section 21 of the Landlord and Tenant Act 1985
to inspect the relevant accounts and receipts (section 22 of Landlord and Tenant Act 1985);
leaseholder-request-for-summary-of-service-charges-accounts
Download a template for the leaseholder’s request for inspection of supporting accounts, receipts etc. under section 22 of the Landlord and Tenant Act 1985
to be sent copies of estimates obtained by the landlord for either long-term agreements to be entered into or intended qualifying work on their properties (section 20 of Landlord and Tenant Act 1985);
leaseholder-request-for-summary-of-service-charges-accounts-1
to propose names of contractors to be included in any tender list when the landlord wishes to enter a long-term agreement or carry out qualifying works (section 20 of Landlord and Tenant Act 1985);
to ask for a written summary of the insurance cover and inspect the policy (Schedule to the Landlord and Tenant Act 1985);
Download a template for the leaseholder’s notice for a written summary of insurance cover under section 30 and paragraph 2 of the Schedule to the Landlord and Tenant Act 1985
Download a template for the leaseholder’s notice for inspection of insurance policy etc. under Section 30A and paragraph 3 of the Schedule to the Landlord and Tenant Act 1985
to be consulted about the appointment or re-appointment of a managing agent (Section 30B of Landlord and Tenant Act 1985).
What happens when the landlord changes?
Where a Recognised Tenants’ Association exists and the landlord changes, a notice should be served on the new landlord indicating the existence of the Certificate of Recognition if the association still wishes to be consulted about issues.
How does a tenants’ association seek contact information about other tenants in the building? (Please note this item applies in ENGLAND ONLY)
The secretary of a tenants’ association has a right to obtain from the landlord contact information for other leaseholders in a shared block provided that leaseholders have individually consented to their information being made available in this way.
The secretary can serve a request notice on the landlord asking them to provide the following information about relevant qualifying tenants who are not already members of the association.
- Their name;
- The address of the dwelling for which they pay a service charge;
- Any address to which service charge demands for them are sent;
- Their email address
Download a template for a request by the Secretary of a Tenants’ Association requiring the landlord to provide formal notice of recognition of the association:
RTA-request-for-Formal-Recognition
How must the landlord respond to a request notice? (Please note this item applies in ENGLAND ONLY)
The landlord has a number of duties following receipt of the request notice-
Duty 1: Acknowledgment of request notice
When served by a secretary of a tenants’ association with a request notice for information about relevant qualifying tenants who are not members of the association, a landlord must within seven days (beginning with the date on which the request notice was received):
acknowledge receipt of the request notice in writing; and
Inform the secretary of the tenants’ association that the landlord will provide a substantive response to the notice.
If the landlord does not consider the request notice to be valid they must, within seven days beginning with the date on which the notice was received-
Inform the secretary of the tenants’ association in writing that the landlord will not provide a substantive response because the landlord does not consider the notice received to be a valid request notice: and
Give reasons as to why the landlord does not consider the notice to be a valid one.
Duty 2: Contacting relevant qualifying tenants
Once served with a request notice, a landlord must, as soon as practicable, send an information form to each relevant qualifying tenant about whom information has been requested.
The “information form” is a written document which:
informs the leaseholder that a tenants’ association has requested that the landlord provide information relating to the qualifying tenant;
sets out what information has been requested in relation to the qualifying tenant;
identifies the tenants’ association that has made the request;
includes the postal address of the tenants’ association and its e-mail address (if it has one);
asks the qualifying tenant for written consent to disclose the information to the tenants’ association,
Informs the qualifying tenant that the information will not be disclosed without that consent;
informs the qualifying tenant that the tenants’ association has stated in its request that the information will only be used to ask the qualifying tenant if they want to become a member of that association;
informs the qualifying tenant that any queries relating to the tenants’ association should be directed to that tenants’ association;
asks the qualifying tenant to reply within 28 days (beginning with the date of receipt of the information form):
confirming that they consent to all of the information being disclosed;
confirming that they consent to some of the information being disclosed (and what that is);
confirming that they do not consent to any of the information being disclosed;
gives a postal address and e-mail address (if the landlord has one) which can be used to reply to the landlord; and
is signed and dated by the landlord.
Template-request-notice-for-secretary-to-request-information-from-landlord
Forming_A_Residents_Association
Duty 3: Substantive response to request notice
A landlord has four months (beginning with the date on which the request notice was received) to provide a substantive response to the tenants’ association.
This substantive response must be in writing.
The substantive response must either state:
all information which the landlord has consent to disclose; or
that there is no such information.
The substantive response must:
- state the number of qualifying tenants to whom the landlord sent an information form; and
- state the number of such qualifying tenants who did not give written consent for information to be disclosed
- Be signed and dated.
- Be accompanied by a statement signed and dated by the landlord that the information contained in the substantive response is true to the best of the landlord’s knowledge and belief.
Duty 4: Further disclosure
Where a landlord receives consent from a qualifying tenant 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. Such further disclosure must be in writing and accompanied by a statement that the information comprising the further disclosure is true to the landlord’s knowledge and belief. This statement must be signed and dated by the landlord.
What can be done if the landlord fails to comply with any of the duties? (Please note this item applies in ENGLAND ONLY)
The Tribunal can deal with landlords who fail to comply with their duties.
The secretary of a tenants’ association can apply to the Tribunal for an order requiring a landlord to:
- acknowledge their request notice;
- contact relevant qualifying tenants ;
- provide a substantive response to the request notice.
- Application form TA2 can be completed and submitted to the relevant Tribunal office accompanied by a crossed cheque or a postal order for the required fee (currently £100).
- The application can be dealt with on paper, but if it proceeds to a formal hearing a further fee of £200 will be payable.
How does a tenants’ association become recognised?
To gain recognition from the landlord the secretary of the association should first ask the landlord in writing for a written notice of recognition. Once given, the landlord must give six months’ notice should they wish to withdraw recognition.
If the landlord refuses to give written notice of recognition or if the association desires a certificate of recognition in any event from the Tribunal a formal application to the Tribunal for a certificate of recognition can be made.
What information and documents should be provided with an application to the Tribunal? (Please note this item applies in ENGLAND ONLY)
INFORMATION
The name and address of the association;
The name, address and other contact details of the secretary or their representative
The name, address and other contact details of the landlord or their representative;
Either the date of the landlord’s notice recognising the association and reasons why the association also wishes to obtain a certificate of recognition from the Tribunal Or if the landlord has refused an application to grant written recognition or has given notice withdrawing recognition, the reasons given and/or attach relevant documents
Details of any previous certificate of recognition by the Tribunal or its predecessor a rent assessment panel
Details of the property concerned including, if the application covers more than one block, the number of blocks involved and the names or identity of the blocks and whether a separate service charge is payable in respect of some or all of the services.
The number of flats in the block(s)
The number of flats for which variable service charges are payable
Number of flats whose tenants/leaseholders or joint tenants/leaseholders are members of the association
DOCUMENTS
A copy of the rules and the constitution of the association including details of tenants’ association’s rules regarding membership, decision making and voting. Model rules to help draw up the constitution can be obtained from the local Tribunal.
Details of the composition of the membership of the tenants’ association;
Details of the extent to which any fees or charges payable in connection with membership of the tenants’ association and any exemptions from the payment of fees;
The names, addresses and contact details of the chairperson, secretary or treasurer;
The accounts for the tenant’s association for the last financial year and, if available, for all previous financial years;
Copies of the minutes of all of the tenant’s association meetings for the current financial year and, if available, for all previous financial years;
A list of members, indicating flat numbers, which is signed and dated by all the members;
Confirmation from the Secretary that all the listed members have paid their subscriptions to date;
Application form TA1 can be completed and submitted to the relevant Tribunal office accompanied by a crossed cheque or a postal order for the required fee (currently £100).
Before consideration is given to the granting of a certificate, the landlord will be asked whether they wish to make any observations regarding the application.
The application can be dealt with on paper, but if it proceeds to a formal hearing a further fee of £200 will be payable.
How should the Tribunal deal with the granting of a certificate? (Please note this item applies in ENGLAND ONLY)
The Tribunal has discretion as to whether recognition will be granted and it will not, therefore, be given automatically.
The matters to which the tribunal must, in particular, have regard in granting a certificate are the following-
the composition of the membership of the tenants’ association;
the tenants’ association’s rules regarding membership, including whether tenants who are not qualifying tenants are entitled to become members;
the tenants’ association’s rules regarding decision making;
the tenants’ association’s rules regarding voting;
the extent to which any fees or charges payable in connection with membership of the tenants’ association apply equally to all members;
the extent to which the constitution of the tenants’ association takes account of the interests of all members;
the extent to which the tenants’ association is independent of the landlord of the dwellings to which the association relates;
whether the tenants’ association has a chairperson, secretary and treasurer;
whether the constitution of the tenants’ association may be amended by resolution of the members and the rules regarding amendment;
whether the tenants’ association’s constitution, accounts and list of members are kept up to date and available for public inspection
If recognition is given the Tribunal/ Committee has discretion over how long this should be for, but it would usually be for four years. A renewal can be sought at the end of this period, though the Tribunal/Committee may cancel a Certificate of Recognition if it is considered that for some reason the association no longer merits it.
When should the Tribunal refuse to grant a certificate? (Please note this item applies in ENGLAND ONLY)
The Tribunal must not give a certificate to a tenants’ association:
in relation to a premises where it represents fewer than 50% of the qualifying tenants of dwellings in the premises. (But where the tenants’ association represents qualifying tenants in dwellings situated in related premises; and those qualifying tenants contribute to the same costs by the payment of a service charge then the Tribunal must not give a certificate to the tenants’ association in relation to the related premises if the tenants’ association represents an aggregate of fewer than 50% of the qualifying tenants of dwellings situated in the related premises.)
in relation to any premises if a certificate has previously been given to a tenants’ association in relation to the premises and the certificate is in force.
if the Tribunal is not satisfied that the constitution and rules of the association are fair and democratic.
Finally, the Tribunal has the discretion to refuse to grant a certificate in all the circumstances.
How can the certificate of recognition be cancelled by the Tribunal? (Please note this item applies in ENGLAND ONLY)
Application form TA3 can be completed and submitted to the relevant Tribunal office accompanied by a crossed cheque or a postal order for the required fee (currently £100).
The application can be dealt with on paper, but if it proceeds to a formal hearing a further fee of £200 will be payable.
The matters to which the tribunal must, in particular, have regard in cancelling a certificate are the following-
whether the certificate was obtained by deception or fraud;
whether the tenants’ association to which the certificate relates represents fewer than 50% of the qualifying tenants of dwellings situated in the premises to which the association relates;
where the tenants’ association relates to related premises and the qualifying tenants in dwellings situated in the related premises contribute to the same costs by the payment of a service charge, the tenants’ association to which the certificate relates represents an aggregate of fewer than 50% of the qualifying tenants of dwellings situated in the related premises;
whether the office of chairperson, treasurer or secretary of the tenants’ association are vacant and, if so, the length of time for which the position has remained vacant.
whether any provision of the constitution of the tenants’ association has been breached and, if so, the extent and nature of the breach;
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;
any irregularities in the tenants’ association’s voting process, decision making implementing of decisions; or recording of decisions, and the nature of the irregularities and their effect.
