Protocol for service of initial notices

6 April 2020

On 30 March 2020 ALEP, the Association of Leasehold Extension Practitioners, of which Wilsons Solicitors LLP is a member, announced a Protocol for Service of Initial Notices and Counter-Notices During COVID-19 Pandemic.

The main thrust of the protocol is that leaseholders and landlords (and their representatives) can and should take steps to enable individual leaseholders to extend their lease and for leaseholders collectively to buy the freehold (the process known as "collective enfranchisement") despite the current restrictions on movement, closure of professional offices, and general public safety issues.

The protocol addresses the fact that the governing statutory provisions (as set out in the Leasehold Reform Housing and Urban Development Act 1993 ("the Act")) require hard copies of notices and proof of service, but that these traditional "gold standard" methods of service may no longer be possible during the pandemic. It also recognises that the standard time limits might be difficult to adhere to because of the increased difficulty for valuers in obtaining access to properties etc.

The protocol advises that the parties' solicitors (or other representatives) make written agreements that: i) service of notices and counter notices in relation to lease extensions and collective enfranchisement be sufficiently served if sent by email and that ii) the deadline for service of counter notices be extended.

Given that strictly there is no provision in the Act to contract out of it, the parties will effectively be agreeing not to "take the point" when it comes to accepting or challenging the validity of the notices. Although the Covid-19 Pandemic inevitably will have an effect on leaseholders' property decisions, this protocol, if followed, should provide, if not for "business as usual", at least for "business".

This is a non-statutory protocol and if one party wishes to seek strict adherence to the statutory provisions then, at present, the statutory provisions must be complied with. This may not be possible and the enfranchisement claim may fail. Even if a party agrees to follow the protocol it could change its mind and this will create problems and possible litigation.

Wilsons will be encouraging its clients, whether landlords or leaseholders, and other parties' representatives to adopt and follow this protocol wherever possible. Clients should rest assured that we will continue to carry out enfranchisement and lease extension work during the pandemic and will use our best efforts to agree with other parties to adopt the ALEP protocol.

The full protocol and announcement can be found here.

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