Managing the Handover

Without this information for the past six years to hand, you may find it difficult to deal with disputes by leaseholders. At worst, you may find yourself in court or LVT proceedings where you have to write off arrears and possibly pay the leaseholder’s legal costs if you don’t have the correct documents to support your arrears claim - a situation we all agree is best avoided.

So how best to ensure the documents are handed over by the previous agent? If you are inheriting a block from an agent with a less-than-perfect track record then you may find that you have to work hard to get the information you need. There are three legal remedies that can help you secure the necessary files from the former managing agent.

• A claim of ‘Trespass to Goods’ can be brought on the basis that, where there is a Principal (landlord/RMC) and agent (managing agent) relationship, the file is the property of the client (see Chantrey Martin & Co v Martin) and should be delivered up by the managing agent whenever requested.
• A claim of ‘Conversion’. Conversion is defined as ‘a voluntary act by one person inconsistent with the ownership rights of another’, for example – a deposed managing agent refusing to deliver service charge documentation without the agreement of the landlord. In Schwarzschild v Harrods Ltd, the Court of Appeal confirmed that for such a claim to arise, there has to be both an unequivocal demand for delivery up and an unequivocal refusal to do so. Therefore an outright refusal does need to be communicated by the previous agent.
• Threaten to join the previous managing agent to any proceedings (including service charge claims) where a leaseholder is alleging some failure of duties by the previous agent, such as non-receipt of invoices. If the invoices have in fact been properly served, the previous agents should be pursued as above for delivery up within those proceedings. If the invoices have not been properly served, a claim for negligence against the previous agents can be made within the same action.

It can be a battle to secure the documentation that will let you manage the block to your best ability but, with a combination of some strong legal tactics and the support of your client, you can maximise your chances of a smooth and swift handover.

Clare Brady is the founder and MD of Brady Solicitors.