It does not appear to be strictly possible for the parties to "contract out" of the statutory requirements of sections 20 to 20ZA of the Landlord and Tenant Act 1985 or waive the landlord's need to comply with those consultation provisions.
However, the landlord can apply to the First-tier Tribunal (Property Chamber), which has the power to dispense with the consultation requirements in some circumstances and if it is satisfied that it is reasonable to do so.
In any particular case, the decision would be between the landlord and the long leaseholders, but if a landlord is in any doubt about whether it has properly complied with the consultation process, the safest course would be to start the consultation process or, possibly, apply to the First-tier Tribunal for dispensation (potentially with the agreement of all of the tenants, which might enable the application to be expedited).
If the landlord proceeds with the works without complying with the consultation requirements or without obtaining dispensation from the tribunal, there would be a risk that one or more tenants could challenge the right to recovery, even if they agreed to avoid the requirements. They could essentially change their mind, and if so, the landlord could not rule out the associated risk that the tribunal may decide that the landlord should have carried out a consultation, in which case the landlord may be limited as to what it can charge.
If agreement is reached with the tenants, which they later seek to avoid, the landlord might conceivably have an estoppel argument, but we are not aware of any authority on this point.
The landlord may also be able to seek retrospective dispensation from the First-tier Tribunal in the event that any long leaseholder later challenged the service charges, and perhaps providing contemporaneous evidence of the unanimous support of the long leaseholders might carry some weight in this context, but this will turn on the particular facts.
Additional complications may arise if, for example, any of the flats change hands before the associated service charges are demanded and recovered or if the costs escalate while the work is being carried out, resulting in additional expenditure the tenants may not be prepared to pay.
There may be situations in which tenants may be prepared to agree to or admit that the service charge is or would be payable (only in very straightforward cases where the costs are modest and will not change), in which case they may be prevented from applying to the tribunal for a section 27A determination by virtue of section 27A(4). This is not quite the same as agreeing to waive the requirement to comply with the section 20 consultation process, although practically, it could achieve a similar end result. However, we anticipate that while tenants might be prepared to forego strict compliance with the consultation process in some situations, many will be reticent to give up their statutory right to challenge the resulting service charges.
Of some interest and similarity, or relevance to this point, is the Court of Appeal decision in Reedbase Limited and another v Fattal and others [2018] EWCA Civ 840. Here, the Court had to consider whether or not the landlord should have repeated the second stage of the consultation process as a result of additional works that needed to be done, which were only discovered after the works had already started.
The Court noted that the regulations themselves do not give guidance as to when a stage in the statutory consultation should be repeated. The Court held that the relevant test is whether the first set of estimates gave the tenants sufficient information. It is also necessary to consider whether the protection afforded to the tenants by the consultation process is likely to be materially assisted by obtaining fresh estimates.
Essentially, parties to these matters should be concerned with the content, not the form or strict compliance. Authorities show that substantial compliance should be enough so that minor deviations do not void the entire process. To achieve the end result, a transparent, collaborative approach should be adopted at efficient and proportionate costs and avoid any disputes between landlords and tenants.
