How time flies

It is, I see with horror, 10 months since I added a post to this blog and I note with shame that my last concluded with the following rather grandiose promise:

Over the next few weeks I am going to produce a series of articles, each of which will deal with a different aspect of the Act, its historic and current deficiencies, and how it has been applied and, arguably, misapplied. Broadly I will follow through the bullet points above, which means that the first topic I will cover are sections 19 and 27A of the 1985 Act: the reasonableness of service charges and the right to have the liability to pay them determined by the First Tier Tribunal.

The series didn’t materialise although I haven’t been entirely idle. Apart from the normal run of cases, my discovery that my talk on Arnold v Britain was to be the keynote address at the Lease Conference in February 2016 (something I didn’t realise until the programme came out) had me rehearsing like crazy to ensure I could deliver what I wanted to say in the available time. Sadly the recording I did of the speech for subsequent transmission as a podcast fell between two stools (which of the organisers should release it?). I have, however, now put a pdf of the address on my chambers website, and it can be accessed by the following link:

The Lease Conference was a wonderfully well-organised event and had an impressive roster of speakers and the real pleasure in delivering the keynote address was that it left me free to enjoy everyone else’s contributions during the rest of the day safe in the knowledge that I had had got my bit over at the start.

I’ve done two articles this year, one rather off-piste for this blog:

  • The Vindictive Beneficiary
    Citation: NLJ Vol 166, Issue 7710, 15 – 16
    Topic: Wills & Probate; disclaimer by conduct; what amounts to disclaimer; intention required to disclaim.
  • HMO licensing costs as service charges (written with Ibraheem Dulmeer)
    Citation: L. & T. Review 2016, 20(3), 101-105
    Topic: Landlord and tenant; Dwellings in houses in multiple occupation; Recovery of HMO licensing costs; Reasonableness; Service charges.

and there are more to come before the end of 2016. The next will be in the September issue of Counsel and, without saying what it is about, it’s again removed somewhat from the field of landlord & tenant. It features some quite trenchant observations about legislative policy from the Law Commission, however, and that brings me back to the question of whether landlord & tenant legislation is actually any good because I’m in the process of preparing some submissions about it for the purposes of the Law Commission’s 13th Programme of Law Reform consultation.

The scale and extent of present deficiencies make the task of preparing a coherent and ordered submission every bit as daunting as the series I promised to write at the end of 2015.

Getting beyond the many deficiencies in the service charge legislation will be a labour in itself. Daejan v Benson was no more than a sticking plaster over the mechanics of dispensing with the requirements of the consultation provisions (the mechanics of which Parliament had singularly failed to set out in the legislation) and the Court of Appeal’s decision in the second Phillips v Francis did nothing to resolve the question of to what works the consultation provisions apply in the first place. At least in Arnold v Britton, the Supreme Court canvassed the possible need for legislation to remedy the obvious injustice in that case (the exponential ratcheting of a fixed service charge) but in the second Phillips v Francis, the Court of Appeal, unhelpfully, made its most trenchant criticisms of the drafting of the consultation provisions during the course of submissions and left them unexpressed when it came to giving judgment.

Those are things that will need to go in when it comes to my submission to the Law Commission.

Anyway I apologise for this blog’s broken promise and extended period of quiet. I will try not to leave things so long again.


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