Building Safety: Whether the First-tier Tribunal Has Power to Compel a Landlord to Provide a Landlord’s Certificate (Will v G&O Properties – 2023)

Where a landlord has failed to produce a Landlord’s Certificate under the Building Safety Act 2022, can leaseholders apply to the First-tier Tribunal for an order compelling it to do so?

The background

Will v G&O Properties [2023] concerned a block of residential flats, within which the applicants were leaseholders and the respondent the freeholder landlord.

Remediation works were undertaken at the building in 2021. The applicants requested a Landlord’s Certificate on multiple occasions between July-September 2022. Under the Building Safety Act 2022, the certificate would state who was responsible for the costs of the remediation works. Production of the certificate would enable the applicants to sell their flat.

The requests were ignored by the landlord, and the applicants brought an application in the First-tier Tribunal requesting an order compelling the landlord to produce the Landlord’s Certificate.

The decision

The FTT concluded that it did not have the power to made an order compelling the landlord to issue a Landlord’s Certificate.

Pursuant to Sch.8 para 16 of the BSA 2022, the Building Safety (Leaseholder Protections) (England) Regulations 2022 were made which enable an application to be made to the FTT where:

• The applicant believes that a relevant landlord has made a false claim in the landlord’s certificate…including but not limited to :-
• Stating that the relevant landlord is not the developer of the relevant building or is not associated with the developer; or
• Stating the relevant landlord does not meet the contribution condition;
• The relevant landlord or current landlord has not given the leaseholder sufficient time to provide information to prove they have a qualifying lease.

The FTT found that these provisions did not enable it to grant an order to leaseholders compelling a landlord to provide a Landlord’s Certificate. As a consequence, the powers contained in these provisions did not comply with the powers contained at Sch.8 para 16 of the BSA 2022; to that end, the FTT cannot make orders considered by the BSA 2022. Although subsequent amendments have been made to the Regulations, there has not yet been an amendment made to the FTT’s powers.

Advice and action for landlords

This decision highlights that, at present, leaseholders are unable to apply to the FTT for an order compelling the landlord to produce a Landlord’s Certificate.

However, other regulations support leaseholders in the absence of an express provision. Under the Regulations, where a landlord fails to provide a Landlord’s Certificate within 4 weeks of a leaseholder’s request, the landlord is deemed to be responsible for the relevant defect, or is deemed to have met the contribution condition. In such circumstances, the landlord is unable to recover service charge in respect of relevant defects. In this case, the leaseholders first requested the Landlord’s Certificate in July 2022, 4 weeks after which they would not have been deemed to be liable for the costs of the works.

Landlords are therefore advised to ensure that any requests for Landlord’s Certificates are dealt with promptly, and always within the 4-week timeframe, to ensure that they are not deemed to be liable for costs by default.