Landlord Counter Notice and Duty to Provide Information
Recipients of the Notice of Claim under s84 must issue a counter notice no later than the date specified by the RTM company. The counter-notice will either agree to the RTM or to provide reasons why the RTM company is not entitled to take the process further.The counter-notice does not however provide an opportunity to raise queries or to dispute the RTM on any other grounds.
The counter-notice must be in the prescribed form and not only should it state that the RTM company may apply to the First Tier Tribunal for them to decide the issue if the landlord disputes the claim but it is also limited to one of the two following statements:
- Admitting that the RTM company is entitled to acquire the right to manage in which case the management will pass to the RTM company on the specified date in the Notice of Claim;
- Alleging that the RTM company is not entitled and giving reasons to support the allegation which are limited to the following:
a) The building does not qualify;
b) The RTM company does not comply with legislative requirements of the 2002 Act;
c) Members of the RTM company do not represent half the flats in the building.
DUTY TO PROVIDE INFORMATION
The RTM company will need the landlord to provide whatever it ‘reasonably requires in connection with the exercise of the right to manage’ under s93. This is a different provision from the request for information because that requires information for the purpose of serving the Notice of Claim. This right is for information necessary for the management of the building and to effect a smooth transition of management, this notice should be served at least 28 days before acquisition date to allow the landlord enough time to supply any and all information that will help the RTM company from that date onwards. Whilst the company will need to be very clear on what it requires such as sight and inspection (or copies) of accounts, service charges, maintenance schedules and whether there are any future building works planned etc, and although providing information is statutory on the part of the landlord, he doesn’t have to volunteer it!.
The closer to acquisition date the notice is served the less likely it will be that a smooth handover will be effected because of the 28 day timeframe so if, for example the notice was served 15 days before acquisition date, the landlord would have still have 13 days over the date to respond. He could also, perfectly legally, delay information provision until 28 days after the company takes over. This would obviously have a negative impact on the ability of the new company to manage effectively until they received all the information. The delay could then go on for even longer if he fails to comply after the 28 days has expired. This would then necessitate in the situation having to go to court for enforcement.