[2023] UKUT 135 (LC)

A recognised tenants’ association is an association of qualifying tenants (i.e. tenants required to pay a service charge) which is recognised for the purposes of the provisions of the 1985 Act relating to service charges.

There are two routes by which an association may be “recognised”. Under section 29(1)(a), 1985 Act an association may be recognised by notice in writing given by the landlord to the secretary of the association, or by section 29(1)(b) it may be recognised by a certificate given by the FTT.

A landlord’s notice and a tribunal’s certificate recognising an association may be withdrawn or cancelled (section 29(2)-(3), 1985 Act).

The 1985 Act says nothing about the grounds on which the FTT may give or cancel a certificate, but by section 29(5) the Secretary of State is given power to make regulations which, amongst other things, may specify the matters to which regard is to be had. This power was not used until the Tenants' Associations (Provisions Relating to Recognition and Provision of Information) (England) Regulations 2018 (the 2018 Regulations) came into force on 1 November 2018.

Before the 2018 Regulations there were no statutory criteria for the recognition of tenants’ associations. Instead, an informal document issued by the Department of Communities and Local Government and entitled “Residential Long Leaseholders – a guide to your rights and responsibilities” provided relevant guidance. This document suggested that “as a general guide, an association should represent at least 60% of the flats in the block in respect of which variable service charges are payable.”

In 2015 the effect of these informal sources of guidance was considered by the Tribunal (HHJ Huskinson) in Rosslyn Mansions Tenants Association v Winstonworth Ltd [2015] UKUT 11 (LC). The Tribunal held that the FTT had a wide discretion under section 29 and that decisions about recognition should be taken having regard to all relevant circumstances, including the proportion of tenants who were members of the association but without any presumption that a particular threshold had to be reached before a certificate could be issued.

The 2018 Regulations adopted a different approach. Regulation 3 identifies a number of factors (generally concerned with good governance) which are to be taken into account when the FTT considers whether to grant a certificate. Regulation 4 then specifies that the FTT must not give a certificate to a tenants' association representing fewer than 50% of the qualifying tenants in the premises. Nor may a certificate be given to an association if one has previously been given in relation to the premises and remains in force.

There is one exception to the regulation 4 prohibition on recognising a second association or one representing fewer than 50% of qualifying tenants. By regulation 4(5) they do not apply where the association represents a substantial number of qualifying tenants, and the landlord has failed to comply with an order made by the FTT requiring it to satisfy a tenant’s request for information about the number and identity of qualifying tenants who are not already members of the association.