The Rt Hon the Lord Trefgarne
The House of Lords Secondary Legislation Scrutiny Committee
Friday May 18 2018
Secondary legislation and the European Union (Withdrawal) Bill – inquiry into the sifting criteria per clauses 7-9
This response to your consultation is on behalf of The Federation of Private Residents’ Associations, which as far as we know, is the only national body that represents the voice of leaseholders in England and Wales.
We have around 500 member associations representing tens of thousands of individual leaseholders.
We have drafted this response on the basis of our regular daily contact with our members who inform us of the problems they encounter in the leasehold sector and we have analysed those contacts so that we understand and can convey to you the problems faced from a leaseholders’ perspective.
We have a committee of over 30 volunteers and this response has been drafted using their expertise in addition.
When drafting the rules careful consideration needs to be given to leasehold properties particularly where they may be matters that affect other flats in a block and where there are lease requirements and permissions.
BACKGROUND TO OUR RESPONSE
The Federation has received an invitation to comment on what factors the Secondary Legislation Sub Committee should be considering when deciding whether to recommend that a proposed negative instrument should instead be subject to the affirmative procedure.
We understand that the Committee is conducting a short inquiry investigating the criteria which should be applied in deciding whether a statutory instrument (SI) to be laid under clauses 7 to 9 of the European Union (Withdrawal) Bill should be upgraded from a negative to an affirmative procedure instrument.
Affirmative SIs are debated in the House while negative instruments are not and automatically passed, unless a Member tables an objection.
Our view is that and all Statutory Instruments bringing Leasehold Law into operation should be discussed as an affirmative procedure.
There are two reasons
1. The wording despite the amount of work put into may not achieve its purpose.
Example S.153 Commonhold and Leasehold Reform Act 2002 was brought in by an SI. The statement of Rights and Obligations says :
a) that it should” accompany” the demand. What does this mean ? It has led to disputes. Is it in the same envelope ? Is it to be stapled ? What evidence is needed that it ” accompanied” the demand ?
b) The SI further states that if it does not accompany the demand then the Leaseholder does not have to pay the service charge.
How would they know that this was the case if they did not get the notice they knew nothing about?
The wording of an SI that affects 5 million leaseholders up to four times a year – 20 million notices should have been more closely examined by a committee.
2. Some provisions of Leasehold Acts intended to be brought in by an SI are never enacted because there is no S1. Example
Section 156 of the Commonhold and Leasehold Reform Act 2002. The SLSC should be made aware of this and after a certain length of time the SI should be either dealt with or that clause in the Act formally withdrawn (e.g. the legislation concerning Right to Enfranchise Companies )
We will conclude with a quote from one of our Directors who has been on our Board for more than 20 years and as a former Solicitor has written our ” Legal Jottings “column in our FPRA news letter.
She said on seeing your request for a response
“These wretched statutory instruments which slip in which nobody knows about”
Thank you for asking us – we are happy to give oral evidence if required and we would welcome the opportunity to answer any other questions and help communicate the final decisions to leaseholders.
This response has been submitted by the FPRA admin office on behalf of its Committee and for Bob Smytherman – FPRA Voluntary Chairman