A last minute attempt to stop LKP from publishing three legal opinions extremely critical of the government’s bungled reform to Recognised Tenants’ Associations failed last week.
The government introduced a statutory instrument in October that has actually made the position of leaseholders worse.
The failing was referenced in the Commons by Sir Peter Bottomley with Communities Secretary James Brokenshire on December 10:
This bungling by officials followed years of persuasion by LKP, and MPs such as Sir Peter and members of the Lords such as Lord Young of Cookham (formerly Sir George Young). All regarded reform to Recognised Tenants’ Associations as long overdue.
Sir Peter and Martin Boyd, the LKP chair, even took the issue to Number 10 on December 4:
The government has ruled that when leaseholders seek to form an RTA they contact the landlord, who has 4 months to write to all the other leaseholders in a block and ask whether they accept that their contact details can be shared. In fact, their details are already publicly available on the Land Registry at £3 a time.
LKP today published the analysis from barristers Justin Bates and Clara Zang, of 4-5 Gray’s Inn Square, and Rebecca Cattermole, of Tanfield Chambers.
LKP announced that it was to publish the legal opinion and a half-hearted attempt was made to bar barrister Justin Bates from offering his opinion of the law change in public. Mr Bates is employed at the Law Commission part time, and the concern was that he would be commenting on government policy.
This nonsense ceased when the Law Commission accepted that Mr Bates was, in fact, commenting on government enacted legislation.
LKP makes these details known to demonstrate the frustrations involved in changing even relatively simple issues in leasehold.As it happens all the barristers are deeply critical of the statutory instrument, which was pushed through in October, which ignored previous consultation and failed to give prior view of what was intended.
Recognised Tenants’ Associations are the first step that leaseholders make to mobilise and get organised, either to opt for right to manage or to enfranchise.
In spite of public relations blather to the contrary, landlords and their property managers loathe them and introduce impediments to their formation.
Like controversial freeholder John Christodoulou, who spent £85,000 on a QC for an afternoon in the property tribunal to thwart one at West India Quay (accompanied by an 11th hour defamation threat to association secretary).
As it happens, more than 100 members of the residents’ association at Mr Christodoulou’s Canary Riverside were also threatened with defamation proceedings in a separate dispute.
LKP and others had urged the government to provide leaseholders with the means to contact their neighbours. Instead, the government has left this crucial conduit safely in the hands of commercialising landlords.
Rebecca Cattamole writes:
“For a matter which should be relatively straightforward, tenants must now grapple with statute; regulations; explanatory notes; an explanatory memorandum; and forthcoming non-statutory guidance. Applying for recognition is now fraught with difficulty.
“The Regulations will prove either to be a charter for litigation or will act as a powerful deterrent for many tenants.
“It is abundantly clear in what it does not do, that is, make it easier for tenants to obtain recognition.”
Justin Bates and Clara Zang write:
“The government has recognised for several years that forming RTAs is a desirable objective and appreciated the difficulties faced by secretaries when attempting to make initial contact with qualifying tenants.
“However, requiring the landlord to seek written consent from potential members before passing on their information has the effect of creating a piece of legislation which will make very little practical impact on the current state of affairs.
“If this power is to be efficacious then there should not be any requirement for the landlord to obtain written consent of the leaseholders before providing these contact details. The landlord should just be required to provide them to the Secretary of the RTA within a short period of time.
“In conclusion, the overly cautious approach taken to the data protection legislation is unnecessary and unjustified and is not supported by the Information Commissioner. As a result of requiring express consent, Part 3 has the effect of achieving none of the objectives that it had set out to address.”
LKP reviews the new Statutory Instrument on Recognised Tenants Associations (RTAs) over three articles.
The first article sets our the chronology of the work that resulted in this Statutory Instrument, along with our comments on the consultation results.
The second article sets out the independent legal opinions on the viability of the SI.
The third article is a test of the RTA SI in practice and our conclusions.
The conclusion from these articles is that we believe the RTA SI has major flaws. We do not believe the SI will achieve the objectives set out by Ministers from 2014 onwards.
We end by pointing to the fact the SI may have a number of unintended consequences for other existing legislation and other proposed leasehold reforms.