QUESTION
I live in a purpose built apartment building comprising three floors and six apartments.
We employ a managing agent to deal with the day to day administration of the block and the collection and disbursement of funds to cover services via the monthly service charge.
We also have our management company. Things have generally rolled along quite well over the last 24 years, even with changes in owners and renters along the way.
Over the years we have all taken it in turns to fill the roles of director (we are required to have two) and company secretary is usually filled by one of the managers at our managing agent.
During the past, or rather up until very recently, the role of director has been operated on an ‘in name only position’ – that is to say they were there specifically for the reasons that Companies House required our management company to be set up in that way.
Usually, the property manager and managing agent dealt with issues, unless a decision had to be taken by all six owners, and this usually happened at the AGM.
Over the past year or so, a change in operating procedure seems to have slipped quietly in, and now the managing agent appears to be intent on passing every decision to the directors and should any of us query something, we are ‘brushed off’ with something like “the directors are dealing with it”. After 24 years of an open democracy this is boiling my blood.
I should also say that over the same period, we voted for a new director. The new director was new to the building, having recently purchased their flat, but in the brief conversations and interactions we had, they seemed an ideal choice to fill the director’s role.
Unfortunately the new director is displaying a very autocratic style and is being supported by the managing agent, who now says they must carry out the director’s instructions. My stance on this is absolutely not; they pay no more service charge than anyone else, in fact I pay most as I have three bedrooms and everyone else has two.
The other issue I would appreciate some advice/feedback on is some garden furniture. About three or so years ago I noticed that some ‘cheap’ tubular steel garden furniture that had been purchased from our surplus funds was starting to show its age and was in need of replacement. At the same time, the AGM for our management company was due and also a neighbour in the street was getting rid of some decent garden furniture. I said I would buy it as long as the managing agent would get agreement from the majority at the pending AGM, which they did. I acquired this at my own expense for everyone’s enjoyment. This is recorded in the minutes.
Arriving home a couple of weeks ago, I was approached by one of the other owners and asked if I had noticed the new director’s ‘note’ about the garden furniture. It said that the furniture was damaged and therefore a health and safety risk, should not be used and they were speaking with the managing agents to arrange disposal of it all. I asked this neighbour if the new director knew it belonged to me and he assured me that they did as he had advised them of that. I inspected the furniture and found that one chair had become quite damaged over the winter with crumbling and another had minor damage to one of the seat panels, so I sent of an email to the managing agent informing them of all this and that I concurred that one chair was damaged and beyond repair and I agreed to it being removed but the other three chairs and table must remain. My email was ignored.
I would like to know if I can legally demand funds from the managing agent to replace the second chair that I said was only slightly damaged, as this now looks to be a battle of wills.
That is quite a lengthy email and I hope it may prove entertaining if nothing else but would appreciate any feedback or advice you may have on these issues.
ANSWER
Many thanks for your question, there are a number of issues that have been raised and I am sorry to see that you are having trouble with the new director, especially after what appears to be a long run of satisfactory management and decision making.
In relation to the director’s powers, it is common for the managing agent to only liaise with the board of a RTM company. The board is comprised of the directors and they should act as outlined in the memorandum and articles of association; it is not common for everyday decisions to be put to a vote for all of the members to make a decision on.
You should check the memorandum and articles of association for the RTM company as this will provide an outline of the director’s powers. If you have any concerns regarding the director then you can obviously raise them at meeting. It should be noted, however, that a mere disagreement will not give rise for the need for the director to actually make any changes.
In regard to the garden furniture, there are a number of concerns here. It is very difficult to provide any firm advice as I have limited information.
In essence there is the potential for a claim to be made as it appears that the RTM company has removed your property without your permission and have then disposed of it.
The potential issues and arguments that I foresee relate to the permission that you obtained in order to place the chairs on the common areas, furthermore the RTM company may claim that there was a genuine health and safety concern.
You should also consider the potential legal costs you would incur for what I would assume is a relatively small amount as this matter would likely be heard as a small claim and you would, therefore, not be in a position to recover your costs. Also, have you asked for the chairs to be returned to you?
I would advise that before you take any further action you seek independent legal advice.
Peter Cornell is a Director at LMP Law
