Q: We are a residents’ association for a nine-storey block of flats comprising 43 units. The residential block is part of a complex with commercial units on the ground and first floor. The freeholder has leased the residential block to a head lessee who in turn leases the units to 43 leaseholders. We have gained recognition as a residents’ association. The building was constructed as an office block in 1970 and converted to residential units in 1989. It comprises concrete slab floors with concrete columns and curtain walling between the floors. The outside concrete surfaces are covered in cement render with mosaic tile facing. In the current managing agent’s tenure (since 2006) no cleaning or maintenance has been undertaken despite our repeated asking that it be done to prevent the accelerated dilapidation caused by moss and weeds.
In 2015-2017 four slabs of render have fallen on to the unloading bay and car park of one of the commercial units in winter months and silent hours, fortunately with no damage or personal injury. We have written to the managing agent asking that an inspection, maintenance and surveillance programme be put in place to identify and rectify defects and prevent or minimise the rate of degradation. Little has been done. Buildings insurance (liability and property damage) is placed by the freeholder but paid for by us as part of our service charge. We need to know that we are covered but have only had verbal assurance from the head lessee. We have asked the managing agent, copied to the head lessee, for a copy of the insurance policy together with any correspondence related to it. It has not been forthcoming.
Can you tell us:
- Do we have a right to be informed of any dialogue, disclosure or correspondence between managing agent, head lessee or freeholder.
- Who is responsible to furnish us with details of insurance – managing agent, head lessee or freeholder.
- If there is a claim on the policy which is prejudiced by apparent negligence or known dilapidation of the building who would be liable to pay.
- What formal steps can be taken to escalate the issue.
FPRA Committee Member Yashmin Mistry replies:
There are many advantages to having a Recognised Residents Association and some of these include:
- increase the sense of belonging to a community;
- lobby for change on major issues of concern to the whole community;
- inform residents of their rights under the law and in particular under the Landlord and Tenant related legislation;
- Provide local expertise about managing an estate and can readily identify problems, which may not be obvious to property managers;
- exercise a degree of influence over expenditure by landlord or its agent on service charge items; consult with landlord or its agent on proposed expenditure and help to determine the manner in which any extraordinary charges are levied and the maintenance fund (if any) is safeguarded;
- may act on its own behalf in requesting information from a landlord.
- a landlord can also be required to consult a recognised association on matters such as service charges and management. In addition, a recognised Association has power to require a landlord to consult with them concerning managing agents by serving a notice in writing. The Housing Act 1996 Section 84 empowers a Residents’ Association to appoint a Surveyor (who must be qualified) to advise on service charge matters. He or she has important rights of access both to the premises and to relevant documents.
- exert pressure upon the landlord or its agent to maintain an appropriate standard of decoration and maintenance to the interior and exterior of buildings, and at reasonable cost;
- exert pressure on the landlord or its agent to carry out regular inspections and timely maintenance of, and at reasonable cost, the building’s plant, equipment, wiring and other common services;
- exert pressure on the landlord or its agent to comply with latest fire, health and safety and security recommendations;
- establish a relationship with the landlord or its agent to facilitate good management; represent the needs and views of residents on management issues and report back to the residents the concerns of the landlord or its agent;
- acquaint residents with aspects and problems of management of which they may have been unaware; act as an extension of the landlord’s management;
- organise opposition to undesirable planning applications;
- be prepared to take on all responsibilities of management if ceded by the landlord/ or its agent or conferred by legislation, Right to Manage or following the purchase by the residents of the landlord’s interest;
- exercise the rights conferred by Statute on Residents’ Associations:
(a) obtain statutory recognition of the Association
(b) propose to the landlord or agent and require the due consideration of estimates for major works obtained by an Association; (Section 20 Landlord & Tenant Act 1985) as amended by the Commonhold and Leasehold reform Act 2002).
(c) apply for a determination of the reasonableness of the service charge costs (Section 19 of the Landlord and Tenant Act 1985 as amended by Section 83 of the Housing Act 1996)
(d) require the landlord to consult with the Association in regard to the appointment of the managing agent; (Section 30B Landlord and Tenant Act 1985 as amended by Section 44 Landlord and Tenant Act 1987
(e) exercise rights as to information about Service Charge accounts (Landlord & Tenant Act 1985 Section 21 as amended by Landlord & Tenant Act 1987 Schedule 2 Para 5) and as amended by the Housing Act 1996 Sections 83 and 84
(f) finally,and perhaps most importantly, facilitating consultation and obtaining consensus amongst tenants as to the possible exercise of the rights of those tenants qualifying under the Leasehold Reform, Housing and Urban Development Act, 1993 to make a collective purchase of the freehold vested in their landlord.
(g) Alternatively, facilitating consultation and obtaining consensus amongst tenants as to the possible exercise of the ‘Right to Manage’ under the Commonhold and Leasehold Reform Act 2002
There is however no statutory obligation on the managing agents or headlandlord to disclose correspondence between themselves and the freeholder.
Under the terms of the occupational leases, it appears that the head leaseholder is responsible for the placing of the building insurance and therefore a request for the building insurance should be made of the managing agent for the head leaseholder.
We cannot comment on any claim for negligence at this stage as the papers and expert evidence would need to be reviewed by a litigation expert prior to any proceedings being issued.
[Submitted February 2019]