This guide aims to explain what will happen if you apply to the First-tier Tribunal (Property Chamber) (‘the tribunal’). It does not cover valuation applications. It is not meant to describe or give a full interpretation of the law, as only the courts can do that. And it does not cover every case. If you are in any doubt about your rights and responsibilities, you should get advice from a solicitor who specialises in this area of the law.
The following pages set out:
- some of the different applications you can make to the tribunal; and
- some useful information on each application. It covers the areas which the Leasehold Valuation Tribunal used to deal with.
For the purposes of this advice guide we refer to ‘the landlord’ throughout, although the law in this area often uses technical descriptions such as ‘any relevant person in control of the premises’. Similarly, where we refer to ‘you’, we mean the leaseholder, but this can sometimes include a tenant.
- a lawyer, who is often the chairman;
- a valuer; and
- a layperson (someone without specialised knowledge of the matter being decided).
The overriding objective
The tribunal’s practice and procedure are governed by their ‘overriding objective’, which is to make sure they deal with cases fairly. The objective includes:
- dealing with a case in a way that is proportionate to how important it is to those involved, how complicated the issues are, the expected costs and the resources of the people involved (and of the tribunal);
- avoiding unnecessary formality and trying to be flexible in the proceedings;
- making sure that, as far as possible, everyone involved is able to take part fully in the proceedings;
- using the tribunal’s special expertise effectively; and
- avoiding delay as far as is possible while still considering the issues properly.
Proceedings at the tribunal are fairly informal. You do not have to be represented by a barrister, solicitor or valuer. You can appoint a representative (whether legally qualified or not) as long as you give written notice of the appointment (that is, the representative’s name and address) to the tribunal and your landlord. You can have another person with you at the hearing to act as a representative or help you prepare your case. You do not have to give the tribunal this person’s details, but you will need the tribunal’s permission before they can help you. (The information in this paragraph also applies to your landlord.)
If you appear before a tribunal, you may want to get professional advice, and it is sensible to arrange legal representation if the argument relates to interpreting the law or the conditions of your lease.
It is not unusual for landlords to be represented by a legal team, particularly if they are a property company or a public-sector landlord such as a local housing authority or registered provider (housing association).
In these circumstances, whether you are applying to the tribunal or responding to an application your landlord has made, you should consider the risk that you may have to pay some or all of your landlord’s professional fees, either under an order made by the tribunal or under the conditions of your lease. You will not always have to do this, but it is something you should consider when deciding whether to apply to the tribunal rather than use other methods of settling the dispute, such as alternative dispute resolution.
The main advantage of having a representative is that they should be able to help you see the matter from a position of experience and expertise, and to guide you on the approach to be adopted to the other party particularly if they are also legally represented.
The main drawback is the cost of a legal representative, which could well be more than the amount the dispute relates to, although you may be able to get low-cost or free legal help and representation (for example, from Advocate).
If you do not have a legal representative you will be responsible for presenting your own case, including arguments and evidence. Do your best to present the evidence clearly and concisely and limit it to the matter (or matters) being disputed. The tribunal will hear both sides of the argument and then make a decision based on the evidence and the judgment and experience of the tribunal members. The tribunal may tell you their decision at the hearing, but even if they do this they must, as soon as reasonably possible after making their decision (and usually within six weeks), give both sides a notice of their decision along with written reasons for it.
Alternative dispute resolution
Where appropriate, the tribunal should try to let everyone involved know about any other procedure that is available and appropriate for settling the dispute (for example, mediation), and should try to use the other procedure if either side asks them to.
Tribunal hearings are open to the public and people can see their decisions at the tribunal offices. We provide a schedule of decisions with access to the full decision. Tribunals can decide a wide range of disputes, including:
- disputes about the conditions and price of buying the freehold or extending a lease;
- disputes about who is responsible for paying a service charge, an administration charge or an estate management scheme charge, and whether the charge is reasonable;
- disputes relating to building insurance;
- whether it would be appropriate to appoint a new manager in a block of flats;
- whether a residential long lease (usually relating to flats) should be changed;
- disputes relating to the right to manage;
- disputes where your landlord believes you have broken the conditions of your lease (before the landlord serves a notice under section 146 of the Law of Property Act 1925); and
- whether to grant a ‘dispensation’, which would mean that your landlord does not have to keep to the consultation requirements under section 20 of the Landlord and Tenant Act 1985.
Application and hearing fees
The application fee
There is a fixed fee of £100 for most applications to the tribunal.
There are arrangements in place for the fee not to be charged in some circumstances, for example if you are receiving certain benefits.
If the court transfers proceedings to the tribunal, the application fee will be the fee that you would have paid to the tribunal (£100), less the total amount of any court fees you have already paid. If the fee you have already paid to the court is equal to or more than the fee due to the tribunal, you will not have to pay the tribunal’s fee.
The hearing fee
If you have paid the application fee and the tribunal decide to hold a hearing on the matter, you will have to pay a fixed hearing fee of £200 when you receive notice of the hearing date.
If you do not pay the hearing fee, the tribunal will write to you to tell you they have not received the fee. If you still do not pay within 14 days after the date of the tribunal’s letter, the case will be withdrawn.
If the tribunal make a decision without a full hearing, you will still have to pay the application fee, but you will not have to pay a hearing fee.
The hearing will not take place until you have paid the application fee and the hearing fee.
Full details of the fees are set out in the Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunal Fees (Amendment) Order 2016.
Waiving and reducing fees
If you believe you may qualify to pay a reduced (or no) fee, please see the following booklet and application form.
Order for your landlord to repay your fees
In certain circumstances, the tribunal may order your landlord to repay all or part of your application or hearing fees (or both). During or after the hearing, you can ask the tribunal for an order, but this is entirely the tribunal’s decision.
Other costs of appearing before the tribunal
The tribunal may award costs in the following circumstances.
- Wasted costs – a legal or other representative may have their costs disallowed or be ordered to pay all or part of any wasted costs. Wasted costs include any costs you have to pay as a result of the representative (or their employee) acting improperly, unreasonably or negligently, or failing to act.
- If a person has acted unreasonably in bringing, defending or holding proceedings (for example, producing documents late without having a good reason and causing a hearing to be adjourned).
When you apply for the tribunal to award costs you can provide a schedule of the costs you are claiming. You should give enough details for a summary assessment.
You can apply for an order to award costs at any time during the proceedings, but you must do this within 28 days after the date the tribunal sends you a notice of their decision or notice of permission to end the proceedings.
Costs can be decided in four ways.
- The tribunal can make a summary assessment.
- They can be agreed between the person paying the costs and the person receiving them.
- The tribunal can carry out a detailed assessment of all or part of the costs. The person paying the costs must have an opportunity to appeal, and they can be ordered to make a partial payment before an assessment is carried out. Interest will be added to the costs following a detailed assessment.
If the tribunal do not award costs, you and your landlord will each be responsible for paying your own costs. However, you should check your lease, as this might allow your landlord to recover their professional costs through the service charge or direct from you.
Things to consider when applying to the tribunal
- whether you are responsible for paying the service charges;
- who you should pay the service charges to;
- how much you should pay;
- when you should pay the services charges; and
- how you should pay the service charges.
The application can relate to charges you have already been asked to pay, or charges your landlord plans to make, whether or not you have paid the charge. However, you and your landlord cannot apply to the tribunal for a decision on a service charge which:
- you have already agreed is reasonable or admitted responsibility for paying;
- has been decided by a court;
- has been referred to arbitration (with your agreement following the dispute); or
- has been decided by arbitration as a result of an agreement following the dispute.
Also, you cannot apply to a tribunal for a decision on service charges if you are a local-authority leaseholder, unless you have been granted a long tenancy or lease. Any clause in your lease or any other agreement which appears to commit you to taking part in arbitration before a dispute arises will not be valid and will not prevent you from applying to the tribunal.
If you pay the service charge, or any part of it, this does not necessarily mean you are agreeing it is reasonable or admitting responsibility for paying it.
If your landlord is planning to carry out work, they can also ask the tribunal for a decision that their proposals are reasonable, and that you must pay the service charge that relates to the work, before they start spending on the work.
Service charges can include costs relating to things such as maintenance, repairs or other work to the building, improvements, management, cleaning, insurance and other costs which your landlord pays and then charges back to you, such as legal and other professional fees.
You or your landlord can apply to the tribunal for a decision, and the tribunal can look at the conditions of your lease to settle disputes or uncertainties about whether you have to pay a service charge.
There is no simple definition of ‘reasonable’, and the tribunal must decide the issue using the evidence they have before them. However, when deciding whether a service charge is reasonable, they may ask some of the following questions.
- Is (or was) the work or services necessary?
- Is the work or services needed at all?
- Is the work enough to solve the problem the landlord is trying to fix?
- Is the work or services adequate or is it too extreme for the problem?
- Is (or was) the original specification for the work or service adequate?
- Did it include all necessary work or was the job allowed to expand as more repairs were found to be necessary?
- Are there genuine reasons why extra urgent work is needed?
- What were your landlord’s procedures for costing the work or services?
- What are your landlord’s arrangements for controlling costs?
- How adequate is site supervision?
- What controls are there for checking and paying invoices and so on?
- What arrangements are there for checking the service provided against what was stated in the specification?
- Is the standard of the work or service proposed or completed appropriate and reasonable?
You and your landlord may have different opinions on what is considered a reasonable or appropriate standard. Your landlord might want to carry out work to a higher standard than you consider reasonable. This might be because you have a shorter interest in the property and because you have to pay for the work through the service charges. Equally, the opposite can apply, and you may expect higher standards because you have to pay for the work.
- Was, or is, the standard of the work or services appropriate?
- Is the standard of insurance cover appropriate?
- Will the specification deliver the levels of services or standards of work expected?
- Is the finished work satisfactory?
- Was the work carried out in line with the standards set out in the specification?
- What are your landlord’s arrangements for monitoring the way the service is provided?
- Are services maintained to the agreed level?
- How much is reasonable for you to pay towards the work or services?
Your application should be based on firm reasons, not your opinion. In some cases, the tribunal may ask for evidence from an expert witness, normally a property professional.
Limiting service charges: landlord’s costs
In residential leases it is common for the landlord to include their legal costs of managing the property in the service charge. These costs can include the costs of court or tribunal action, whether this is started by them or the leaseholder.
Under section 20C of the Landlord and Tenant Act 1985 Act, you can apply for an order that all or part of your landlord’s costs arising from the tribunal proceedings are not to be included in the service charges.
This means that if you apply to the tribunal for a decision on whether a service charge is reasonable, you can also apply to them to make sure that any reduction you achieve in your service charges will not be cancelled out by your landlord adding their legal costs relating to the tribunal proceedings to the service charges. You can also apply to the tribunal under section 20 for your landlord’s legal costs not to be added to your service charges if your landlord applies to them for a decision on whether a service charge is reasonable.
If the tribunal receives an application under section 20C at the same time as the main application, both applications will be dealt with in the same hearing. If you make the section 20C application after the main proceedings, it may be dealt with by a different tribunal at a separate hearing.
Limiting administration charges: landlord’s costs
(Section 131 of the Housing and Planning Act 2016)
Leases often include a clause which says you must pay any legal or professional costs your landlord has in connection with recovering or trying to recover service charge arrears or in connection with you breaking a condition of the lease.
Another common condition in a lease is one that states you must pay your landlord’s costs relating to a notice under section 146 of the Law of Property Act 1925. This may mean that your landlord can claim back from you any professional fees (for example, solicitors’ costs) they face as a result of tribunal proceedings relating to you not paying your service charges or breaking any other condition of your lease.
Under section 131 of the Housing and Planning Act 2016, you can apply to the tribunal for an order reducing or cancelling an administration charge for your landlord’s costs relating to tribunal proceedings. (These are known as ‘litigation costs’.)
You cannot make an application under section 131 for proceedings which started before 6 April 2016.
The right to manage (RTM)
The right to manage is a way for leaseholders of a building to take over managing that building. You do not need permission or an order from a court or tribunal to set up a right-to-manage company (RTM company). It is a right that you (and the other leaseholders) can exercise simply by serving a claim notice on your landlord (and any management company that is also named on the lease). However, there are some situations where the RTM company can refer disputes, costs or other issues to the tribunal for a decision.
The building is not eligible for the right to manage, for example, because more than 25% is non-residential or less than two-thirds of the flats are owned by qualifying leaseholders.
The RTM company is not eligible, for example, because less than half of the qualifying leaseholders are members of the RTM company or because the RTM company has not been set up in line with the regulations.
The RTM company has not followed all the necessary procedures and requirements of the application process.
Your landlord cannot apply to the tribunal to challenge your right to set up an RTM company just because they object to losing the management of the building, or because they have doubts about the management experience or competence of the RTM company.
If your landlord gives the RTM company a counter-notice challenging the company’s right to manage the building, the RTM company can apply to the tribunal for a decision that it was, on the relevant date, entitled to take over managing the building. It must make the application within two months of the landlord’s counter-notice. The tribunal’s decision will be based only on whether the RTM company had the right to take over managing the building on the date the leaseholders served the claim notice to set up the RTM.
If the tribunal decides that the RTM company did not have the right to manage the building, the claim notice will no longer have any effect and the RTM company will have to pay the landlord’s reasonable costs arising from the notice and the tribunal hearing. A decision becomes final at the end of the period allowed for appeal (if there is no appeal), or at the time when any appeal is finally decided.
If the RTM company cannot trace the landlord to serve the claim notice (section 85 of the Commonhold and Leasehold Reform Act)
If the RTM company cannot serve the claim notice on the landlord or any other relevant people or companies involved (known as parties to the lease) because they cannot be traced, the RTM company can apply to the tribunal for an order that it is entitled to take over managing the building.
The tribunal will expect the RTM company to have made all reasonable enquiries into the identity or whereabouts of the landlord, for example, by writing to their last known address or writing to the solicitor who drew up the original lease. If the RTM company still doesn’t manage to trace the landlord and needs to apply to the tribunal for an order, it must first serve a notice on all the qualifying leaseholders of the building telling them it intends to apply to the tribunal for an order. (There is no prescribed form for this notice.)
The tribunal will consider the steps the RTM company has taken and may ask it to take further action. If the landlord (or a landlord of any part of the building) is traced as a result of this, the tribunal will take no further action on the application and the RTM company will be able to go ahead with serving the claim notice.
If the landlord is still not traced, the tribunal may make an order which will transfer the right to manage to the RTM company. The tribunal can also tell the RTM company what it needs to do to put this right in place.
If the RTM company finds the landlord after applying to the tribunal, but before the tribunal make the order, the tribunal will take no further action in connection with issuing the order. Instead, the matter will be treated as though you had made the claim notice on the date of application, and all the rights and obligations of the RTM company will be decided as though you had served a claim notice. However, if the tribunal have already made the order before the landlord has been found, the application for an order cannot be withdrawn without the landlord’s or tribunal’s permission.
Deciding your landlord’s costs (section 88 (4))
The RTM company is responsible for paying the reasonable costs of the landlord, a manager appointed under section 24 of the Landlord and Tenant Act 1987, and any management company that is also named on the lease, which arise as a result of it taking over managing the building. The costs must be reasonable and the RTM company (and your landlord) can apply to the tribunal for a decision on what is reasonable.
The costs may include those relating to professional services which the landlord is personally responsible for. The costs the tribunal must decide on will, typically, be legal and other professional costs arising from receiving and responding to the claim notice, providing information or other help to the RTM company, and transferring the management duties to the RTM company.
The way the tribunal deals with the application for an order is likely to be similar to the way they decide the landlord’s costs arising from applications for collective enfranchisement or new leases under the Leasehold Reform, Housing and Urban Development Act 1993. They are likely to consider the work done by the professional advisers, the time the advisers spent doing the work and how much each adviser would charge for that time.
Deciding accrued uncommitted service charges (section 94 (3))
On the day the RTM company takes over managing the building, or as soon as possible afterwards, the landlord, any manager appointed under section 24 of the Landlord and Tenant Act 1987, and any management company that is also named on the lease must give the RTM company all ‘accrued uncommitted service charges’. These are the total of:
- all the service charges collected from the leaseholders; plus
- any service charges held in any investments, together with any interest that has built up on these; less
- any amount needed for any spending that should be covered by the service charge and which took place before the RTM company took over.
The RTM company, the landlord, a manager appointed under section 24 of the Landlord and Tenant Act 1987 and any management company that is also named on the lease can apply to the tribunal for a decision on how much this payment should be.
If your landlord arranges an external assessment of this amount, they can charge the RTM company the reasonable fee for this as part of the costs. The RTM company can then challenge the assessment by applying to the tribunal if it believes the assessment is not accurate. However, the assessment does not have to be carried out by law, and the tribunal can decide the amount your landlord must pay to the RTM company, based on the information they have available. Clearly, both the RTM company and your landlord will need to provide evidence of:
- the service charges leaseholders have been asked to pay during the charging period;
- the amount the leaseholders have actually paid;
- any service charges that have not yet been paid;
- any money your landlord has paid for work and services; and
- any service charges that are held in any investment account, and the interest on these amounts.
Approval under the lease (section 99 (1) of the Commonhold and Leasehold Reform Act 2002)
One of the RTM company’s duties is granting approval under the terms of the lease. You will often need to ask your landlord for approval under your lease, for example, to transfer the lease or to sublet the flat or make alterations to it. If there is an RTM company, you will need to ask it, not your landlord, for any approval that is needed under your lease.
The RTM company must give your landlord (or landlords) 30 days’ notice before granting approval relating to transferring the lease, subletting the property, creating a legal charge over the property or parting with possession of it, making structural alterations or improvements, or altering the use of the property. In any other case, the RTM company must give your landlord 14 days’ notice before granting approval. If your landlord objects to the approval or wants to set conditions, they must tell the RTM company and you about this. The matter can then be referred to the tribunal. You, the RTM company or your landlord can make the application to the tribunal. (Or, if the approval relates to someone you want to sublet the property to, that person can apply to the tribunal for a decision.)
Exercising the right to manage within four years of a previous RTM company losing the right to manage (schedule 6, paragraph 5)
If there used to be an RTM company for your building, but it no longer manages the building, you cannot set up a new RTM company for four years from the time when the previous right to manage ended. (This does not apply if the right to manage ended due to the freehold of the building transferring to the RTM company.) However, you (and the other leaseholders) can apply to the tribunal to allow you to serve a claim notice to set up a new RTM company before the end of the four-year period. The tribunal will only allow this if they are satisfied that it is reasonable to do so.
- your landlord considering applications or providing approval, for example, for permission to carry out alterations to the property;
- your landlord providing information or documents that you need, for example, documents relating to the sale of the flat;
- charges which arise from you breaking the conditions of the lease; or
- charges which arise from you not paying an amount that is due to your landlord. These charges may include the legal costs of serving notices, the cost of any correspondence, and interest charged on the unpaid amounts. Some leases can include your landlord’s costs relating to the tribunal. Before beginning tribunal proceedings you should check your lease to see if this applies to you.
An administration charge can be fixed by the lease or may vary. A ‘variable administration charge’ is one where the lease does not specify the amount of the charge or a formula for calculating the charge.
You (and your landlord) can apply to the tribunal to decide whether you have to pay an administration charge, whether the charge is reasonable, or whether a charge that is fixed by the lease can be varied.
Is the charge reasonable?
By law, you only have to pay a variable administration charge if it is reasonable. The tribunal can decide what is a reasonable amount to pay, if anything, given the circumstances of each case, and you only have to pay that amount.
- Was your landlord’s action, in raising legal costs, appropriate and reasonable in the circumstances?
- Is the cost justified, in terms of the legal adviser’s fees and the hours they charged for?
If the charge is simply a fee for, for example, providing information or permission, is the charge reasonable in terms of the work the landlord had to carry out in order to provide this?
If the amount of an administration charge, or the formula for calculating the charge, is fixed by the lease, the tribunal can make an order that the lease is changed to amend the amount shown, to change or delete the formula, or in any other way they specify. The change will apply for the rest of the time left on the lease.
If the charge is based on a formula in the lease, this may relate the charge to a part or proportion of the rent, to the service charge, or to the current market value of the flat. In all three cases, the question of whether the charge is reasonable may depend on any increases in these amounts since the lease was granted.
Are you responsible for paying the charge?
As with service charges, the tribunal can decide:
- whether you are responsible for paying the charge;
- who you should pay the administration charge to;
- how much you should pay;
- when you should pay an administration charge; and
- how you should pay an administration charge.
Also, as with service charges, the application can relate to an administration charge you have paid or been asked to pay. However, you and your landlord cannot apply to the tribunal for a decision on an administration charge which:
- you have already agreed is reasonable or admitted responsibility for paying;
- has been decided by a court;
- has been referred to arbitration (with your agreement following the dispute); or
- has been decided by arbitration as a result of an agreement following the dispute.
Appointing a manager
If an RTM company has the right to manage the building under the Commonhold and Leasehold Reform Act 2002, you (or your landlord) can apply to the tribunal to appoint a manager if you (or they) are not satisfied with the way the company is managing it. If the tribunal agrees to appoint a manager, this will end the RTM company’s right to manage.
As long as the tribunal is satisfied it is necessary, they may make an order to transfer the landlord’s control and management arrangements to a manager of their choice. The manager they appoint does not have to be a managing agent. They could be a leaseholder or other responsible person. The manager could delegate tasks to a managing agent, but will remain responsible for managing the building.
An application relating to managing the building must cover all, or part, of a building which contains two or more flats. You can make the application to the tribunal on your own or with a group of other leaseholders.
However, you cannot apply to the tribunal to appoint a manager if the landlord is a local authority, a registered provider (formerly known as a housing association), a fully mutual housing association or a charitable housing trust, or if your landlord lives in the building, the building has been converted into flats, and less than half the flats are let on long leases.
The tribunal will make the order to appoint a manager if it is fair and convenient in all the circumstances, and at least one of the following applies.
- Your landlord or any management company named on the lease has broken an obligation to you, under the terms of the lease, in relation to managing the building.
- You have been asked, or are likely to be asked, to pay unreasonable service charges or administration charges. It is not necessary for the tribunal to have decided that the service charges or administration charges are unreasonable through a separate application to them under the 1985 or 2002 act (although such a decision would provide useful evidence).
- Your landlord has not kept to any relevant condition in an approved code of management practice which has been approved under section 87 of the Leasehold Reform, Housing and Urban Development Act 1993. Two codes of practice have been approved: one produced by the Association of Retirement Housing Managers relating, mainly, to purpose-built retirement housing, and one by the Royal Institution of Chartered Surveyors which is relevant to all residential leasehold property where variable service charges are paid. You can get a copy of the codes direct from the relevant organisation.
- There are other circumstances which mean it is fair and convenient to appoint a manager.
The right to ask the tribunal to appoint a manager applies equally where the lease includes a third-party manager. In this case, all notices you need to serve must also be served on the manager under the lease (see below).
Notice to your landlord
Before you apply to the tribunal to appoint a manager, you must serve a notice (under section 22 of the Landlord and Tenant Act 1987) on your landlord and any other person who has a duty to manage the building. The notice must state:
- your name and address (and an address the landlord should use to serve notices if different);
- that you intend to apply to the tribunal for an order, but may not do this if your landlord meets the requirements set out in the notice;
- your reasons for applying for the order, and the evidence you will rely on to prove those reasons; and
- the things your landlord could do to put right the matters you are not satisfied with, and a time limit that they should do this in.
If your landlord fails to put right the matters set out in the notice, or if there are other reasons why you are not satisfied with the way your landlord is managing the building, you can go ahead with the application to the tribunal.
When you do not have to serve a notice
You can apply to the tribunal for an order giving you permission not to serve the notice if the tribunal is satisfied that it would not be reasonably possible to serve it. The tribunal says that you need to take some other appropriate steps before they will consider your application to appoint a manager.
The intention of the notice is to give the landlord fair warning that you want to transfer responsibility for managing the building to a manager. It also gives your landlord the opportunity to make good the problems you have with their management. If you apply to the tribunal for permission not to serve the notice, you will have to provide evidence to show that you cannot serve it.
Nominating a manager
In your application to the tribunal you must nominate the person (or company) you would like to be appointed as manager, although the tribunal will decide whether or not to appoint that person. This can be a professional manager. If the tribunal agrees to appoint the manager you nominate, that person or company will manage the building in line with the tribunal’s order.
The form and regulations ask for the qualifications of the nominated manager. This does not mean that the person you nominate must be a qualified property manager. If the nominated manager has qualifications, you should include these on the form. But if they don’t, this will not necessarily prevent them from being appointed as manager. The tribunal will look at the circumstances of each case.
The order of appointment
The tribunal will decide whether to make the order, the matters to include in the order and the conditions that will apply to the order (if any). The order may set specific guidance that applies to certain matters or provide procedures the new manager must follow when applying to the tribunal for further guidance.
The order may state that:
- the appointment is temporary or that there is no time limit;
- the manager’s costs and fees must be paid by the landlord, the leaseholders, any relevant person, or a combination of these;
- the manager will be entitled to pursue claims relating to anything that happened before they were appointed; and
- the manager will have rights and responsibilities relating to contracts even though they are not involved in these.
The order will provide the manager with the level of authority the tribunal consider appropriate to allow them to take control of managing the building. The manager is responsible to the tribunal and does not have to ask for or accept instructions from you or your landlord.
Once the new manager is appointed, your landlord will no longer be responsible for managing the building, as set out in the order. The tribunal can ask your landlord to provide all documents, accounts and other information the new manager will need to manage the building.
Varying or cancelling the order
The tribunal may vary or end the order following an application from any interested party (including you, your landlord, and any leaseholders who were not involved in the original application). If the order is cancelled, the management will transfer back to your landlord. The tribunal will only vary or cancel an order if they are satisfied that this will not lead to a repeat of the circumstances that led to the original order and that it is fair and convenient to do so.
If your landlord has broken an obligation they had under the lease and this is likely to continue, or if manager has been appointed for the building under section 24 of the Landlord and Tenant Act 1987, you (and the other qualifying leaseholders) can apply to the High Court or county court for an acquisition order to take over the landlord’s interest. If the application is based on a manager having been appointed under section 24, the manager must have been appointed for at least two years on the date of the application to the court. You must serve a notice on the landlord before applying to the court, unless the court agrees you don’t have to do this. The court will only make an acquisition order if, among other things, there are two or more flats, at least two-thirds of the flats in the building are held by qualifying leaseholders, and that the majority of qualifying leaseholders make the application. You should get advice from a solicitor who specialises in this area of the law before applying for an acquisition order, as there are exceptions.
If the court makes an order, the tribunal will decide the conditions on which you (and the other leaseholders) can take over the landlord’s interest (including the purchase price) unless these have been agreed between everyone involved.
In some cases, unsatisfactory conditions in a lease may affect all the leaseholders in a building, or varying one lease may affect the other leases. In these cases it is often difficult to get every leaseholder to give their permission to vary the lease, so the law allows the tribunal to make an order to vary all the leases in the same way without the need for leaseholders’ permission.
Varying single leases (flats)
For long leases of a single flat, you, your landlord and any management company named on the lease can apply to the tribunal for it to be varied on the grounds that the conditions in the lease that relate to the following are not satisfactory.
- Repairing and maintaining the flat or the building, or land or buildings that are let to the leaseholders or which the leaseholders have rights over.
- Insuring the building the flat is in or the land or building let to you under the lease.
- Repairing and maintaining installations (whether in the building or not) which are necessary to provide a reasonable standard of accommodation.
- Providing or maintaining services to provide a reasonable standard of accommodation, for example, lighting, cleaning, caretaking and insurance.
- Calculating the proportion of the service charge that each flat should pay in relation to the whole building, if the individual proportions add up to more or less than 100%.
- Paying interest on service charge arrears.
- Recovering money from one person which someone else has spent for their benefit (or the benefit of others, including them).
If an individual leaseholder makes an application to change the lease for one flat, anyone else named on the lease can apply to the tribunal for the variation order to also apply to one or more other leases.
Varying two or more leases (flats)
An application can also be made for an order to vary two or more leases in the building in the same way to correct the same problem with the leases. The leaseholder or the landlord can make this application. If the application concerns fewer than nine leases, all (or all but one) of the people concerned must give their permission for the application. If the application concerns more than eight leases, no more than 10% of the people concerned must oppose it, and at least 75% of them must give their permission for it. For these purposes, the landlord is one of the people concerned.
Leaseholders and the landlord can make an application to vary two or more leases if the change they are hoping to achieve cannot be satisfactorily achieved unless all the leases are varied in the same way.
The tribunal may make an order to vary the leases in line with the application or as they consider appropriate. They may also make an order instructing the people concerned to vary the leases in line with their instruction, and the tribunal can order anyone concerned to pay compensation to anyone likely to be disadvantaged by the change in the leases. However, they cannot make an order if changing the leases would cause a disadvantage to another leaseholder which could not be helped by paying compensation.
If you want to apply to vary two or more leases, you must serve notice of the application on anyone likely to be affected by the proposed variation. This will include your landlord, the other leaseholders (if the change will affect them) and your and the other leaseholders’ mortgage providers. If you do not serve the notices, anyone who should have received one can apply to the tribunal to cancel or alter the variation or, in some cases, to bring action for damages.
Varying leases (houses)
The above guidance relates only to flats, but landlords and leaseholders can also apply to vary the lease of a house if the conditions relating to insuring the building or recovering the costs of the insurance are not satisfactory.
- Vary the lease of a flat (section 35)
- Make the same change to the leases of other flats in the building (section 36)
- Vary two or more flat leases (section 37)
- In limited circumstances, cancel or alter a variation the tribunal have ordered to a flat lease (section 39 (3b))
- Vary the lease of a house if the conditions relating to insurance are not satisfactory (section 40)
When your landlord does not have to consult you
Landlords must consult all service-charge payers in writing before carrying out work which will cost more than £250 for any individual leaseholder, or before entering into a long-term contract (one for more than 12 months) if the cost to any leaseholder is more than £100 in any of the accounting periods concerned. If the landlord has a good reason, they can apply to the tribunal for permission to not follow the consultation requirements.
There is more information on the consultation procedure landlords must follow in our leaflets S.20 Consultation and S.20 Consultation for council and other public sector landlords.
Insurance through the landlord’s nominated insurer
Some leases, usually those relating to houses, may say that you must insure the property through an insurer nominated or approved by your landlord. You may feel you could get cheaper insurance from a different company, or you may be concerned about the cover provided.
You can arrange your own insurance, as long as you give your landlord notice and meet the requirements of section 164 of the Commonhold and Leasehold Reform Act 2002 concerning the insurance cover provided. There are more details in our booklet Service Charges and Other Issues.
There is another way to deal with problems which arise from ‘nominated insurer’ clauses in leases (for both houses and flats). Under the schedule to the 1985 act, you or your landlord can apply to the tribunal for a decision on whether:
- the insurance provided by the landlord’s nominated or approved insurer is not satisfactory in any way; or
- the cost of the insurance is too expensive.
- you have agreed the cost is reasonable or admitted responsibility for paying;
- the matter has already been decided by a court or by arbitration; or
- the matter will be referred to arbitration under an arbitration agreement.
The sort of issues the tribunal may look at include the following.
- Is the cover adequate or excessive?
- Is the cover lacking in any respect?
- Is the insurer a competent and reputable company?
- Is the cost of the insurance reasonable value?
- Could you get similar cover for a lower price?
- nominate the insurer named in the order; or
- nominate another insurer, which meets the specific requirements set out in the order.
Your landlord’s right to end your lease and take possession of the property (forfeiture)
If you break the conditions of your lease, including by not paying your service charges, the final action your landlord can take is to end your lease and take possession of the property. This is known as ‘forfeiture’. If your landlord decides to take this action, they will generally start the procedure by giving you notice under section 146 of the Law of Property Act 1925 (a section 146 notice). This does not apply in the case of unpaid ground rent, where your landlord does not need to give you a section 146 notice before starting proceedings in the county court to repossess your home.
Breaking a condition in the lease
Since section 168 of the Commonhold and Leasehold Reform Act 2002 came into effect, your landlord cannot serve a section 146 notice unless you have agreed to this or admitted you have broken a condition or a court, or the tribunal have decided that you have done so.
- has been, or will be, referred to, arbitration (if you have agreed to this following the dispute);
- has been decided by a court;
- has been decided by arbitration as a result of an agreement following the dispute.
If your landlord wants to take action to end your lease because you have not paid your service charges, they cannot serve the section 146 notice unless you have agreed or admitted to breaking the conditions of your lease by not paying these charges, the matter has been finally decided by the tribunal, or the tribunal are considering an appeal you have made following their decision. (‘Finally decided’ means the tribunal have made their decision and you have not appealed against it within 14 days, or if you have appealed against the tribunal’s decision, their decision is not set aside as a consequence of your appeal.)
For more information, please see our booklet Service Charges and Other Issues.
Estate management charges under estate management schemes
Under estate management scheme agreements approved under the Leasehold Reform Act 1967 or the Leasehold Reform, Housing and Urban Development Act 1993, people living in the scheme area (including freeholders) must contribute towards the costs of meeting the scheme’s aims. These will usually relate to work to areas that are intended to make the building or estate more pleasant or convenient for the people living there (for example, gardens), roads and footpaths, and will generally aim to preserve the particular architectural or historic significance of the area and make sure that the appearance and quality of the area are maintained properly.
The charges made by an estate management scheme must be reasonable. If you do not feel they are, you can apply to the tribunal for a decision on whether they are reasonable and whether you have to pay them.
You can challenge estate management scheme charges in a similar way to service charges and administration charges. If the charge, or a formula for calculating the charge, is not stated in the scheme, the tribunal can decide what is reasonable in the circumstances. This becomes the maximum amount the manager of the scheme can charge.
The tribunal may also decide:
- whether you are responsible for paying the estate management charge;
- who you should pay the estate management charge to;
- how much you should pay;
- when you should pay the estate management charge; and
- how you should pay the estate management charge.
As with service charges, you can make an application to the tribunal whether or not you have paid the charge, but not if:
- you have already agreed the charge is reasonable or admitted responsibility for paying it;
- the charge has been decided by a court;
- the charge has been referred to arbitration (with your agreement following the dispute); or
- the charge has been decided by arbitration as a result of an agreement following the dispute.
Any clause in your lease or any other agreement which appears to commit you to taking part in arbitration before a dispute arises will not be valid and will not prevent you from applying to the tribunal.
Application to the tribunal: the procedure
The tribunal will consider all the evidence they are given. If there is a hearing, members of the tribunal panel may ask questions, but their role is to make a decision on the evidence they have been given, not to find the evidence for themselves.
You can ask the tribunal to instruct your landlord to provide information that is relevant to the issue your application relates to, and they may issue a summons requiring any person to attend the hearing as a witness..
The tribunal produce model application forms, which are available from the local tribunal building or from the Justice website. You should make your application to the tribunal using the correct form, if one is provided.
If a model application form is not available from the tribunal, you can make your application in writing instead. The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (the rules) state you should sign and date your application and include the following information.
- Your name and address (as applicant) and your representative’s name and address (if you have one).
- An address where documents can be sent or delivered to you. (This will usually be your home or business address.)
- The name and address of each person you are making the claim against (the respondent or respondents).
- The address of the property the application relates to, and your connection with that property.
- The name and address of your landlord.
- Your reasons for making the application and the result you are hoping to achieve.
- A statement that you believe the facts you have given in the application are true.
- Any other information that is necessary under a relevant practice direction (which lists the documents you must send with your application).
With your application, you must provide the correct fee and any documents required by a practice direction.
For some applications you will need to give notice to the other people involved. If this applies, the tribunal will not accept your application until you have given all the necessary notice, and may ask for evidence that you have done so. If you are in any doubt about whether you must give notice, you can ask us or your own legal adviser (if you have one) for advice.
When the tribunal receive your application
When the tribunal receives your application they must provide a copy of it, and any documents you provide with it, to whoever is named as the respondent.
Under the rules, if your application relates to service charges, administration charges or estate management charges, the tribunal must provide notice of it to the secretary of any recognised tenants’ association identified in the application and to any people (for example, other leaseholders) whose name and address they know and who they consider are likely to be significantly affected by the application.
The tribunal may give notice of the application to any other person they consider appropriate.
Or, one or more of the people involved can apply for a direction either by writing to the tribunal or by asking during a hearing.
You must include your reasons when applying for a direction.
Unless everyone involved has given you permission to make the application, you should send a copy of the proposed application to every other person, and they will have the opportunity to object to the application.
The rules set out the procedure for objecting to the application and challenging any direction made by the tribunal.
Not keeping to a direction or the rules
If you (or anyone else involved) fail to keep to any directions or the rules, the tribunal may decide not to enforce the requirement, ask you (or the other person) to take action to meet the direction or rules, strike out (dismiss) the case, or bar or restrict you (or them) from taking part in the proceedings.
For failing to keep to certain tribunal directions, including by not giving evidence or providing a document, the tribunal may refer this to the Upper Tribunal (Lands Chamber) and ask them to take action, which could involve finding the person concerned in contempt of court.
Witness summons and orders to answer questions or produce documents
You can ask the tribunal to issue a summons for witnesses to attend a hearing.
The tribunal can also issue a witness summons without being asked to do so.
A summons should allow at least 14 days’ notice of the hearing, but the tribunal can shorten this time if necessary.
If the person called as a witness is not involved in the proceedings, the summons should say who has to pay for that person’s necessary expenses of attending the hearing.
The summons or order must state that the person receiving it can apply to the tribunal to vary or cancel the summons or order if they have not had the chance to object to it.
Anyone who does not keep to a summons or order might be treated as being in contempt of court.
Striking out an application
The tribunal has the power to strike out (dismiss) all or part of an application in certain circumstances.
The tribunal must strike out your application if they have no power in relation to the proceedings, or if they warned you they would strike out the application if you failed to keep to a direction by a certain date and you have not met the direction by the date stated.
The tribunal may choose to strike out your application in the following circumstances.
- You have not acted in line with a direction and the tribunal warned you they may strike out the application if you did not meet the direction.
- You have not co-operated with the tribunal and this means the tribunal cannot deal with proceedings fairly.
- The proceedings are between the same people and arise out of similar, or the same, facts as those contained in proceedings the tribunal have already decided.
- The tribunal considers the proceedings, or the way in which they are being carried out, to be petty or spiteful or otherwise an abuse of the tribunal process.
- The tribunal considers that your application has no reasonable chance of succeeding.
If the tribunal strikes out your application, you can apply to them in writing to have the matter reinstated. The tribunal must receive your application to reinstate your application within 28 days after they tell you they are striking it out.
The rules on striking out an application apply equally to both you (the applicant) and the person you are making a claim against in your application (the respondent), except that the tribunal’s decision to strike out the application will state that the respondent has been ‘barred from taking further part in the proceedings’ or part of them.
Withdrawing from the proceedings
You can give the tribunal notice that you want to withdraw from the proceedings, but this will not take effect unless the tribunal agree to this. If they do agree, the tribunal may make any directions or set any conditions that they consider appropriate, and you must meet these in order to withdraw.
You can give notice of withdrawal at a hearing or you can send or deliver it to the tribunal.
You must sign and date the notice, and include the contents as set out in the rules.
Once you have withdrawn from the proceedings, you can apply to reinstate your application. If you want to do this, the tribunal must receive your application within 28 days after:
- the date of the hearing at which you gave the tribunal your notice of withdrawal; or
- the date on which the tribunal received your notice of withdrawal.
The tribunal must tell everyone involved (in writing) that you have withdrawn from the proceedings and that they can apply for the case to be reinstated, as long as they do this within 28 days of receiving the tribunal’s notification.
If there are two or more cases with the same or related issues, one case can be nominated as the lead case and the related cases will not be decided until after the tribunal have reached a decision on the lead case.
Decisions in lead cases can then be applied to future cases with the same or related issues.
Transfer to the Upper Tribunal (Lands Chamber)
The tribunal are running a pilot scheme (the deployment pilot) under which they will deal with cases that would usually have been considered in separate hearings before the county court and the tribunal.
Examples of the types of cases that will be dealt with under the deployment pilot include:
- service charge cases where other issues are raised, such as counterclaims where someone has broken a condition of the lease (for example, where you are claiming your landlord has not kept the building in a good state of repair); and
- cases where you cannot trace your landlord under the Leasehold Reform Act 1967 and the Leasehold Reform Housing and Urban Development Act 1993.
The tribunal will only decide further county court issues if everyone involved agrees to this.
Decision without a hearing
The tribunal can only reach a decision once a hearing has taken place, unless everyone involved in the application and other concerned people have agreed that a decision can be made without a hearing.
A person is considered to have agreed to a decision without a hearing if the tribunal has given them at least 28 days’ notice that they intend to deal with the proceedings without a hearing, and they have not objected to this within that time.
The rules allow a shorter notice period in urgent or exceptional circumstances.
If there is to be a hearing that will bring the case to an end, the tribunal must give everyone involved at least 14 days’ notice, unless:
- everyone involved agrees to a shorter notice period; or
- there are urgent or exceptional circumstances.
You must pay the pre-hearing fee within 14 days of receiving notice of the hearing date.
For all other hearings, the tribunal must provide reasonable notice of the time and place of the hearing.
Before or after the hearing, members of the tribunal panel may visit the property, with the people involved in the application, to carry out an inspection.
Hearings are usually held in public, but the tribunal can restrict who can attend. The hearing is relatively informal but will follow a procedure set out by the tribunal, which will be similar to that seen in courts. Members of the tribunal panel can ask questions of anyone involved in the application who is at the hearing. You do not have to be represented by a lawyer, but this can be useful in complex cases.
If you and the other people involved in the application reach an agreement on how your dispute can be settled, the tribunal can issue a consent order that will bring proceedings to an end without having to make a decision, if they consider this appropriate.
Decisions and enforcement
The tribunal may give their decision at the hearing. As soon as possible after making their decision they must give everyone involved:
- a decision notice stating their decision;
- written reasons for the decision; and
- details of any right to appeal against the decision, including how to appeal and any time restrictions that apply.
Any order the tribunal make can be enforced, with the permission of the county court, in the same way as a county court order.
Case management powers
The tribunal can regulate their own procedure. Among other things, they can:
- extend or shorten the time allowed to keep to a rule or direction even if the person concerned does not apply for more time until the time limit has passed;
- allow or ask someone involved in the application or another person to provide documents or information to them or to someone involved in the proceedings;
- ask a person to state whether they intend to attend, be represented at or call witnesses at a hearing;
- hold a hearing, decide the form it will take, and adjourn or postpone it;
- stay proceedings (put them on hold);
- transfer the hearing to another court or tribunal; or
- delay putting a decision in place until after an appeal.
Valuers or experienced property managers will usually provide expert evidence to help the tribunal in cases which are technical in nature.
The rules state that experts have a duty to help the tribunal on matters that are within their expertise. This duty overrides any obligation an expert has to whoever instructs or pays them.
Neither side can introduce expert evidence without the tribunal’s permission.
Unless the tribunal says otherwise, expert evidence must be in the form of a written report provided to the tribunal and each other party at least seven days before the date of the hearing or the date when the issue will be decided without a hearing (if this applies).
The expert’s report must contain certain statements and information as set out in the rules, be addressed to the tribunal and signed by the expert.
The rules allow the tribunal to direct that the parties jointly instruct the expert.
Long leaseholders, landlords or, in certain circumstances, renting tenants can apply to the tribunal for a decision. You will have to pay an application fee and, if a hearing is held, a hearing fee. After that, each person involved normally pays their own costs. However, in some cases, your lease may allow your landlord to recover their costs through the service charges or directly from you.
Finally, the tribunal can award costs in certain circumstances.
Before considering appealing against the tribunal’s decision, you have a number of options.
- Corrections: At any time during the proceedings, you can ask the tribunal to correct any mistake or missing information.
- Setting aside the decision: If the tribunal has reached a decision which brought the case to an end, you can ask them to set aside that decision and re-make it. They can do this if:
- it is in the interests of justice to do so; and
- one or more of the following conditions are met.
- A relevant document was not sent to, or received by, you (or the other side in the dispute) or your (or the other side’s) representative at an appropriate time.
- A relevant document was not sent to or received by the tribunal at an appropriate time.
- You (or your representative) or the other person involved in the dispute (or their representative) were not present at the hearing.
- The procedure was not followed in some other way.
The tribunal must receive your application to set aside their decision either:
- within 28 days after the date on which the tribunal sent you notice of their decision; or
- if later, within 28 days after the date on which the tribunal sent you notice of the reasons for their decision.
If you decide to make an appeal to the Upper Tribunal (Lands Chamber), you must first apply to the tribunal for permission to do this. The tribunal must receive your application for permission within 28 days after they:
- send you written reasons for their decision;
- send you amended reasons for, or correction of, the decision following a review; or
- tell you that your application for them to set aside their decision has been unsuccessful.
Types of application
You can make a variety of applications to the tribunal.
- Under the Leasehold Reform Act 1967 you can apply for a decision on:
- Under the Landlord and Tenant Act 1985, you can apply for a decision:
- on whether any service charges are reasonable and whether you are responsible for paying them;
- on whether the insurance that is available through your landlord’s nominated or approved insurer is unsatisfactory in any way, or the price you have to pay for the insurance is too high (if your lease says you must insure your home with your landlord’s nominated or approved insurer);
- to limit the amount of your landlord’s costs during the tribunal proceedings which you have to pay for as a service charge; or
- to allow you not to follow consultation procedures for certain work or qualifying long-term agreements.
- Under the Landlord and Tenant Act 1987, you can apply to the tribunal:
- Under the Leasehold Reform Housing and Urban Development Act 1993, you can apply to the tribunal for a decision on:
- the conditions that will apply and the price to pay when you and the other leaseholders in the block together buy the freehold of a block of flats (known as enfranchising);
- the conditions that will apply and the price to pay when extending the lease of a flat; or
- whether your landlord’s costs, which you have to pay, are reasonable.
- Under the Commonhold and Leasehold Reform Act 2002, you can apply to the tribunal for:
- a decision on whether any administration charges are reasonable and whether you are responsible for paying them;
- a decision on whether any estate management charges are reasonable and whether you are responsible for paying them;
- a decision on whether you have broken a condition of your lease if your landlord claims you have and wants to end your lease and take possession of the property (forfeiture) as a result; and
- a range of decisions under the right to manage (including if you cannot trace your landlord). The decisions you can apply for include:
- whether charges which arise from the application for the right to manage are reasonable;
- the amount of any ‘accrued uncommitted service charges’ (see page xx) your landlord, any manager and anyone else involved must pay to the RTM company;
- whether any approval under the lease can be granted by a RTM company; or
- whether it is reasonable to enforce the four-year rule before another RTM company can take over in the block after the previous one has lost the right to manage.