The intent behind the Landlord and Tenant Act 1985 Section 20 is to give some protection to residential leaseholders, ensuring they are consulted on any works that would eventually cost them more than £250 and longer-term contracts, explains Dr Shaun Lundy.
The Act also enables a cap on the amount any leaseholder will pay if the Landlord does not carry out the required consultation. There are circumstances when it could be difficult to follow the procedure due to an emergency. As a health and safety consultancy a question we often get asked by property managers is:
Can we bypass the section 20 process for a health and safety emergency?
To answer this question let’s look at a common example from the perspective of the leaseholder:
My landlord has informed us that some immediate emergency works are required to our building to make it safe and subsequently issued us all with a bill which comes to over £400 per leaseholder. When I queried this the landlord told me that because it was an emergency the section 20 procedure does not need to be followed.
On the face of it this may sound reasonable, as the intent is to make the building safe. However, despite declaring an emergency the Landlord still needs to ensure that a procedure is followed and that the term ‘emergency’ is not used merely as an excused to bypass a process they are legally obliged to follow.
Reality check
If repairs are urgent, due to serious health and safety concerns, it is indeed possible to apply to the First Tier Tribunal for a dispensation from all or part of the consultation requirement under Section 20.
This procedure generally takes 6 weeks or more and clearly is no good if the works are urgently needed in the case of a genuine emergency. At the moment there is no formal process for urgent works on the grounds of an emergency or health and safety. However the accepted approach in these situations is to start the emergency qualifying works immediately, if necessary, to prevent potential injury or loss.
At the same time the landlord must apply to the First Tier Tribunal for dispensation from some or all of the Section 20 requirements. Dispensation is not always guaranteed although if the works are considered a genuine emergency it should be forthcoming.
Remember if qualifying works are carried out without going through the consultation procedure and without obtaining emergency dispensation; the landlord may only be able to recover £250 per residential tenant, potentially an extremely expensive mistake.
Consider the following
Is it a genuine emergency? In a lot of cases it may be obvious that your first obligation is to ensure everyone’s safety and act immediately. If there is any doubt get some professional and legal advice.
Can an immediate temporary solution be found to make the situation safe in the short term? This will ensure everyone’s safety, allow the process of applying for dispensation to be followed and reduce the risk of potentially excessive costs as a result.
Finally, keep everyone informed of what’s going on. Disputes often arise out of poor communication and residents can be particularly alarmed when it comes to health and safety issues, so make sure you have a clear communication plan especially in the early stages of any emergency works.
Conclusion
So, in answer to the original question ‘can the Landlord bypass the section 20 process for a health and safety emergency?’
The answer is; not entirely. You can start urgent works on the grounds of an emergency but the landlord must also apply for dispensation from the s.20 process to the First Tier Tribunal at the same time.
In our example the Landlord has clearly failed to follow this advised procedure and the communication to the leaseholder is misleading. This is likely lead to problems in recovering the costs in this case.
Taking immediate action to protect people’s safety is always the right thing to do. However consideration also needs to be given the requirements of section 20 and keeping tenants informed.
