The Landlord and Tenant Act 1985 requires landlords to consult tenants before undertaking work above a certain value to be included in residential service charges. The Service Charges (Consultation Requirements) (England) Regulations 2003 restrict the amount that tenants can be required to pay for work about which they have not been properly consulted to £250. Similar provisions apply where a landlord intends to enter into a qualifying long-term agreement, save that the costs cap in such cases is £100 in any accounting period.
In Trafford Housing Trust Ltd v Rubinstein [2013] UKUT 581 (LC); [2014] PLSCS 11, the Upper Tribunal was asked whether the Leasehold Valuation Tribunal had been right to rule that the landlord had failed to comply with the consultation requirements because, although it gave notice of its intention to enter into a qualifying long- term agreement in respect of expenditure in the region of £300,000, it gave its tenants less than 30 days in which to respond. The answer to the question turned on the date on which the statutory consultation period started. The 2003 regulations state only that the relevant period “means the period of 30 days beginning with the date of the notice”.
The landlord’s notices were dated 11 March 2011. They were sent via TNT on 16 March and stated that the consultation period ended on 15 April 2011. There was no evidence of the date on which the notices were actually received, but the Leasehold Valuation Tribunal took the view that the notices had arrived on 18 March.
The Upper Tribunal dismissed the notion that the consultation period ran from the date printed on the landlord’s notices. This would mean that the consultation period could be curtailed if the wrong date were printed on a notice or by any delay in posting it.
The landlord tried to persuade the tribunal that the consultation period began when the notices were sent. This would have meant that the statutory consultation period ended on 14 April 2011. However, the judge ruled that the fundamental purpose of a notice is to inform the recipient of its contents. Consequently, he interpreted the phrase “the date of the notice” to mean the date of actual or deemed receipt by the recipient(s).
There were no provisions for deemed receipt in either the legislation or the parties’ leases, so the judge turned to section 196(4) of the Law of Property Act 1925 and section 7 of the Interpretation Act 1978 instead. He assumed, without deciding either point, that the 2003 regulations authorise or require service by post and that use of a commercial carrier equates to use of the postal service. However, this did not take him any further forward. Section 196(4) was not applicable because it requires service by registered or recorded delivery post and the landlord had not provided any evidence as to when TNT would have ordinarily delivered the notices for the purposes of section 7.
However, on the facts, it was reasonable to assume that the notices had arrived on 18 March. This meant that the 30-day consultation period should have ended on 16 April 2011 and that the landlord had specified an end date that was one day short of the statutory requirement.
Allyson Colby is a property law consultant