Written by Jonathan Wragg on Tuesday, February 26, 2019
In the case of qualifying works the consultation requirements apply where the sum sought to be recovered exceeds £250.00. However, consultation requirements also apply where the landlord seeks to enter into certain agreements. This article relates to agreements between landlords and managing agents. These are frequently known as management agreements.
In legal terms1 an agreement is governed by the consultation requirements if it is a “qualifying long term agreement” (“QLTA”). A management agreement is likely to be a QLTA if:
For those landlords preferring to avoid the consultation requirements the options are limited – especially where the costs sought to be recovered from each tenants exceed £100.00. Although some agreements fall outside the scope of the legislation (see Article 3 of the 2003 Regulations) most management agreements will not. Accordingly, most landlords and managing agents seeking to escape the requirements of the consultation provisions will need to ensure that the management agreement does not exceed 12 months.
In the recent Court of Appeal decision in Corvan (Properties) Limited the relevant clause relating to the duration of the contract was as follows:
“The contract period will be for a period of one year from the date of signature hereof and will continue thereafter until terminated upon three months’ notice by either party”
Both the First Tier Tribunal (Property Chamber) and the Upper Tribunal determined that the management agreement exceeded 12 months and, accordingly, fell within the consultation requirements. The landlord appealed to the Court of Appeal. The Court of Appeal determined that because the clause in question said that the contract “will continue thereafter” it was, necessarily, for a term exceeding 12 months. As the landlord had not complied with the consultation requirements the landlord was only able to recover £100.00 from each tenant.
The lessons for landlords and managing agents seeking to avoid having to comply with the consultation requirements is to take care. Simply drafting a one year periodic contract may not be enough to ensure that the contract does not exceed 12 months. In order of preference (with the best option appearing first) parties should:
“For an initial term of one year from 1 June 2006 and will continue on a year-to-year basis with the right to termination by either party on giving three month’s written notice at any time.
Highgate Chambers Limited
Nothing in this article is intended to give legal advice and should not be relied upon without consulting your own lawyer.
Jonathan is Director and Lawyer manager of PDC Law and the firm’s Compliance Officer for Legal Practice (COLP). He is also a qualified barrister who practices from Highgate Chambers Limited. Jonathan has worked with PDC for over 10 years and has undertaken property litigation matters since being called to the Bar in 1995. He represents PDC's Law's clients in a range of property disputes in the County Court, First Tier Tribunal and Upper Tribunal.
His work includes the recovery of service charge arrears, forfeiture proceedings and orders for sale. He has significant appellate experience. Jonathan is acutely aware of the difficulties faced by property professionals seeking to recover charges. The Law can be complex and can require Landlords to demonstrate compliance with a number of contractual and statutory provisions. His job is to advise Landlords and agents in a thorough but pragmatic way with an eye to the commercial realities they face.
Jonathan supervises the Enforcement Team and the Non-Contentious Team.close