Serving improvement notices on freeholders

Keele House (LON/00AB/HIN/2025/0664)

On the 2nd of November 2026 the First-tier Tribunal Property Chamber dismissed an appeal brought by Aviva Investors Ground Rent GP Ltd and Aviva Investors Ground Rent Hold Co Ltd against the London Borough of Barking and Dagenham ruling the council had acted lawfully and rationally in serving Improvement Notices on the freeholders despite the existence of an RTM company.

The appeal arose from two Improvement Notices served by London Borough of Barking and Dagenham under section 11 of the Housing Act 2004 in relation to a Category 1 fire hazard identified within the common parts of Keele House. The notices required extensive remediation works including cladding remediation, replacement of combustible materials, fire stopping works, balcony decking replacement, fire door remedial works and improvements to emergency lighting and signage.

The building was subject to a right to manage arrangement, with management functions having transferred to Academy Central (Keele) RTM Co Ltd in 2017. The RTM company was also the building's Accountable Person under the Building Safety Act 2022.

The appellants did not dispute that both the freeholders and the long leaseholders fell within the statutory definition of "owner", pursuant to Paragraph 4 of Schedule 1 of the Housing Act 2004, rather they argued that they could not be the person who “ought” to be served.  The appellants argued that section 97(2)(c) of the Commonhold and Leasehold Reform Act 2002 prevented landlords from carrying out transferred management functions without RTM agreement, and therefore they were effectively incapable of complying with the notices and could not be the persons who "ought" to receive them. They argued that notices should instead be served on leaseholders participating in the RTM structure. It was common ground that the RTM company is not an “owner” and cannot be served with an Improvement Notice.

The appellants relied heavily upon the Upper Tribunal decision in Hastings BC v Braear Developments Ltd [2015] UKUT 145 (LC).

In Braear, the Deputy President suggested that where an RTM company manages a building, the "better course” would be to direct any Improvement Notices at those lessees who are members of the RTM company and who are collectively capable of directing remediation works.

The Tribunal in Keele House accepted that the observations in Braear were closer to “a ratio decidendi than obiter dictum” however, it concluded that those comments remained obiter rather than binding authority. The Tribunal characterised them as useful guidance rather than a legal rule.

The Tribunal rejected the argument that the freeholders were genuinely unable to comply with the notices.

Two statutory routes remained available:

• agreement with the RTM company under section 97(2) of the Commonhold and Leasehold Reform Act 2002;
• an application to the magistrates' court under section 36 of the Housing Act 2004 authorising entry and remedial works.

The Tribunal acknowledged that these mechanisms may be "cumbersome, indirect and time-consuming". Nevertheless, inconvenience was not equivalent to impossibility. The Tribunal also acknowledged that those leaseholders who were served with an Improvement Notice could also have a “cumbersome, indirect and time-consuming route to ensure the RTM undertakes any necessary works.”

Crucially, the Tribunal held that the availability of these mechanisms meant the local authority was entitled to conclude that the freeholders “ought” to be served. The decision to serve them was a rational decision falling within the statutory framework.

The practical implications are significant. Had the appellants succeeded, local authorities would frequently have been forced to direct enforcement action towards individual leaseholders, including those with limited means and uncertain ability to compel corporate action through RTM structures.

The Tribunal considered that such an approach could expose leaseholders to criminal liability arising from non-compliance while providing no clear mechanism by which they could guarantee completion of the works.

The judgment recognises that RTM arrangements may complicate compliance. It does not accept that they remove responsibility. In doing so, the Tribunal has reinforced the effectiveness of the Housing Act 2004 enforcement regime and preserved an important tool for local authorities seeking to address serious fire safety hazards in high-rise residential buildings.

Kate McCrimmon is Principal Lawyer: Fraud, Prosecutions and Regulatory at the London Borough of Barking and Dagenham.