Dr Shaun Lundy, Technical Director at 4site Consulting looks at what we need to know.
Under Section 20 of the Landlord and Tenant Act 1985, leaseholders paying various service charges must be consulted before a landlord carries out major works that will cost them more than £250 each, or if they enter into a long-term agreement for services to be carried out. Failure to do so will create a cap on the amount any leaseholder will pay.
Qualifying works refers to works of repair, maintenance, and sometimes improvement and Section 20 is fundamentally a limit on the amount a leaseholder can pay for this, without being consulted by the Landlord first. If a landlord fails to comply with the Section 20 consultation procedure, every tenants’ contribution will be capped to £250.
Can the section 20 process be side-stepped in a health and safety emergency?
There are of course circumstances when it could be difficult to follow the Section 20 procedure, due to an emergency, and major works may need to be carried out in order to prevent any accidents or serious issues with health and safety.
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 Section 20; which they are legally obliged to follow. Taking immediate action to protect people’s safety is always the right thing to do, however, landlords also need to consider section 20 and the requirement to keep tenants informed.
In these instances, it is indeed possible for landlords to apply to the First Tier Tribunal for a dispensation from all or part of the consultation requirement under Section 20. However, it is also important to note that their case may not be accepted by the tribunal as a ‘genuine emergency’ especially where an alternative course of action may have been possible.
What constitutes as a ‘genuine health and safety emergency’?
Before presenting your case to the tribunal, you should consider whether it is a genuine emergency or if a temporary solution can be found to make the situation safe.
Some examples of genuine health and safety emergencies that may be considered include:
- A building or part of a building that has become structural unsafe with the risk of imminent collapse
- Fire safety risks that requires immediate action to reduce the risk to an acceptable level. An example would be the identification of hazardous cladding post-Grenfell and the instigation of waking watch prior to removal.
Dispensation from the section 20 process on the grounds of an emergency
If no temporary solution can be found and the situation poses a risk to health and safety, then the landlord can instruct the major urgent works. However, they must also apply for dispensation from the Section 20 process to the First-Tier Tribunal, at the same time. Landlords can apply to the tribunal for dispensation with the requirement to consult but this is only really considered if works are urgent and there is no time to consul, or if the landlord has made a mistake during the process. If dispensation is granted, the leaseholders will likely have to pay full costs.
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 but to also apply for dispensation via the First-Tier Tribunal.
4site Consulting is a specialist Health & Safety Consultancy serving both the Commercial and Residential Property Management Industry. 4site was established in 2006 in response to the growing demand from Landlords and Property Managers for a common sense and down to earth support service covering all the Health & Safety compliance requirements specific and relevant to the needs of the property management industry. We are in the fortunate position to have achieved excellent working relationships with our clients who trust us to look after their portfolio of properties across the UK. We cover a large number of properties which means we can provide a high quality service at competitive costs.
