Section 21 Certification the Local Authority

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    Section 21 Certification the Local Authority

    As there has been some discussion over this I took the opportunity to discuss with colleagues as we are widely spread ( no we are not the "usual suspects").

    The combined view that if a landlord ( save those excepted eg a local authority) is alleged in breach of section 21 (and the related sections) under section 34 the Local Authority is the statutory body with the duty to prosecute. They can exercise a degree of discretion, on for example the merits of the case, and their full costs, as usual, are not recoverable.

    With few exceptions, the general perception is a tactic to deny first in "the hope that it goes away". It is a right rarely exercised and rarely understood by the councils, which results in a well meaning but incorrect statement that they have no authority in such matters.

    For example: under external review for a client who has exhausted the complaint procedure, it was confirmed that the LA were in error, and that a claim for loss including that arising from any decision to refuse to prosecute could be pursued.

    Remember the obligation is to produce accounts that comply, not the quality of the information in them. That remains for leaseholders to challenge.
    Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

    #2
    I don't disagree with that but I question the word "duty".

    s34 gives them the power to prosecute, but says only that they may. I think you would need to see whatever documents guide the LA's in their decisions before you could determine whether that amounts to a duty.

    What was the external review that you mention, do you mean the ombudsman? If so, do you have a link to the decision?

    Comment


      #3
      I think this might be a misunderstanding of the term duty. The inclusion in the Act in itself creates a duty, as in the obligation lies with them, however it confers a degree of discretion in its exercise. It goes back to an earlier discussion with other members where in their need to understand, they are tempted to try to distill such issues into simple absolutes i.e. either they do or don't.

      As to the root of their authority I have seen counsels opinion and it's roots are complex to say the least, and each council creates its own criteria, even if they have them. My experience to date in the main is that the council takes advice if and when the issue arises.

      The example I referred to has identifiers and as it is part of current litigation I can't be any more precise. I thought twice about putting it in, but wanted to try and give some encouragement. I also deleted references to two councils who do act for similar reasons.

      In practice in the event of failure it is better to get right to the LVT and use this as a basis to argue that no charges are payable, even compulsory acquisition, and support that with a multi pronged attack with contractual compliance, and exercising rights to appoint a surveyor or a management audit.
      Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

      Comment


        #4
        I understand the word duty perfectly. It means something one is required to do by (in this case) legal obligation. There is no legal obligation in LTA 1985 on LA's to prosecute; there may be in some other document which the LA has to adhere to - hence the rest of my waffle above.

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