First-Tier Tribunal Decision Information
There was a recent appeal against an Improvement Notice served by our colleagues at Hastings Borough Council. The appeal was allowed and makes for a very interesting read. It has rather serious implications on those serving Improvement Notices on freeholders of common parts where there is a ‘Right To Manage Company’ (RTM) in place. Guidance on what a RTM can be found here: http://www.lease-advice.org/publications/documents/document.asp?item=21
Summary of the Hasting’s Case:
Building converted into flats. Top three flats accessed via a external iron staircase. The staircase needs to be replaced. Improvement Notice served on the freeholder. Freeholder appeals (a year after service), which is allowed on the grounds that as there is a RTM in place it is them that should be served with the Notice. They cite Schedule 1 (paragraph 4), which relates to serving Improvement Notices in relation to common parts and says:
4(2) The LA must serve the notice on a person who -
(a) is an owner of the specified premises concerned, and
(b) in the authorities opinion ought to take the action specified in the notice.
The appellant states that it is the RTM that ought to take the action as the RTM took on the responsibility of the common parts when it was formed.
The appeal was allowed on the grounds that Hastings knew the RTM was in place and that they had the responsibility to do this work and therefore ought to take the action. The decision acknowledges that we are in a difficult position because the RTM is not an 'owner' and therefore wouldn't fulfil the requirements of the first part of this paragraph.
In effect this decision, if it were case law, would remove the ability of a LA to serve an Improvement Notice on a freeholder where there is a RTM company in place as neither party would fulfil the requirements of paragraph 4.
Our colleagues also noted that this same wording is used when specifying on whom you should serve a improvement notice on when dealing with flats (schedule 1, paragraph 3).
For more information on this case and their suggested routes forward please feel free to contact Mark Preston, Housing Renewal Manager, Hastings Borough Council via email: MPreston@hastings.gov.uk or telephone on 01424 451443
