On the Tenth day of Christmas - Amy Wagg
On the 10th day of Christmas … Amy Wagg from Irwin Mitchell’s Real Estate Disputes Team considers an interesting case where Nicola Will and Alessandro Koterba (Will and Koterbra) we unsuccessful in their application to the First Tier Tribunal (the FTT) to compel a landlord to provide a landlord’s certificate to a leaseholder.
Factual Background
The Applicants, Will and Koterba were lessees of Flat 16 Grove House which is a 5-Storey purpose-built block of flats, the Respondent G & O Properties and Group were the freeholders. Various remediation works on the block were completed in 2021 as detailed in an ESW1.
The Applicants repeatedly, and more specifically in July, August and September 2022, made requests for the Respondent to provide the landlord’s certificate. The certificate would demonstrate whether the Respondent was liable for the remediation works under the Building Safety Act 2022 (the Act). Without a copy of the certificate, the Applicants were unable to sell Flat 16.
As the Respondent ignored their requests, the Applicants made an application to the FTT for an order compelling their compliance.
Decision
In making their decision, the FTT looked closely at the Act and the Building Safety (Leaseholder Protections) (England) Regulations 2022 (the “Regulations”).
The Regulations entitle an applicant to make an application where:
- The applicant believes that a relevant landlord has made a false claim in the landlord’s certificate provided under regulation 6, including but not limited to –
- Stating that the relevant landlord is not the developer of the relevant building or is not associated with the developer; or
- Stating that the relevant landlord does not meet the contribution.
- The relevant landlord or current landlord has not given the leaseholder sufficient time to provide information to prove they have a qualifying lease.
Schedule 8 paragraph 16(1) of the Act authorises the making of regulations in relation to a landlord’s certificate and paragraph 16(5) enables regulations to be made for an application to the FTT for an order determining whether a relevant landlord has failed to comply with the regulations and if so, requiring the landlord to provide the information or documents to a specified person by a specified time.
The FTT determined that the above powers contained in the Regulations and the Act made no provision for the Applicants to seek an order from them requiring the Respondent to provide the certificate. The powers granted in the Regulations therefore do not appear to comply with the powers of the Act. As a consequence of this the FTT has in fact got no power to make the type of order as contemplated under schedule 8 paragraph 16(5) of the Act.
Since this decision was handed down by the FTT in October 2022 the Regulations has been substantially amended by the introduction of The Building Safety (Leaseholder Protections etc.) (England) (Amendment) Regulations 2023, however the only thing that they do not amend is the FTT’s powers under the Regulations, but watch this space!
