Q: Aerials

Aerials Q: Since our last AGM I have set up a folder for risk assessment/relevant details for outside contractors, should we employ them. There are a couple of matters that each of our flat owners deals with themselves, ie windows, tv aerials, and it was in this context that we had a discussion. If we were employing a contractor to take down an aerial, we would ask for relevant information ie public liability insurance etc, but if the individual flat owner employs them, then we wouldn't? We kicked it around a bit and decided the best thing was to refer to yourselves for some guidance, and you have always been so very helpful in the past. FPRA Committee Member Bob Slee replies: This is always desirable but not necessarily always enforceable; much depends on the wording of the lease. In your case, I believe your lease provides the means to do so. The position with regard to aerials is covered in Section 6 of the First Schedule of the lease. Erection of aerials is subject to the written consent of the landlord and such consent might justifiably include a requirement for contractors erecting the aerial, and undertaking any subsequent repairs or removal, to provide evidence of appropriate third-party liability insurance. More generally, the Second Schedule of the lease grants a number of “easements’ to the lessee allowing workmen to undertake various cleaning, repair and maintenance functions. Section 7 of the Second Schedule underlines the liability of the lessee, in taking advantage of these easements, to ensure among other things that the landlord is not placed at any risk and, in this respect, the landlord is also given power to specify any reasonable rules and regulations. I would suggest that specifying a requirement for any contractor appointed by the lessee to produce evidence of third-party liability insurance would be a reasonable requirement. [Submitted April 2019]

Q: Aerials

Aerials Q: Since our last AGM I have set up a folder for risk assessment/relevant details for outside contractors, should we employ them. There are a couple of matters that each of our flat owners deals with themselves, ie windows, tv aerials, and it was in this context that we had a discussion. If we were employing a contractor to take down an aerial, we would ask for relevant information ie public liability insurance etc, but if the individual flat owner employs them, then we wouldn't? We kicked it around a bit and decided the best thing was to refer to yourselves for some guidance, and you have always been so very helpful in the past. FPRA Committee Member Bob Slee replies: This is always desirable but not necessarily always enforceable; much depends on the wording of the lease. In your case, I believe your lease provides the means to do so. The position with regard to aerials is covered in Section 6 of the First Schedule of the lease. Erection of aerials is subject to the written consent of the landlord and such consent might justifiably include a requirement for contractors erecting the aerial, and undertaking any subsequent repairs or removal, to provide evidence of appropriate third-party liability insurance. More generally, the Second Schedule of the lease grants a number of “easements’ to the lessee allowing workmen to undertake various cleaning, repair and maintenance functions. Section 7 of the Second Schedule underlines the liability of the lessee, in taking advantage of these easements, to ensure among other things that the landlord is not placed at any risk and, in this respect, the landlord is also given power to specify any reasonable rules and regulations. I would suggest that specifying a requirement for any contractor appointed by the lessee to produce evidence of third-party liability insurance would be a reasonable requirement. [Submitted April 2019]

Q: AGM in Garden

AGM in Garden Q: We usually have our AGM in a local church hall. One of our Committee members was keen to investigate having this in our garden to increase attendance. Where do we stand from a liability perspective? If someone has a trip, falls and hurts themselves while at the church, presumably this comes under their insurances/liability? If we do have the event on our grounds (with approval from the managing agent), do we need public liability insurance, risk assessments etc, or would this all be covered by the freeholder/managing agent insurances? FPRA Chairman Bob Smytherman replies: Changing venues for an AGM to increase attendance is a common issue facing our members. Providing a convenient and comfortable venue should be the main priority. If you decide to hold on your premises, such as a communal garden, I suggest asking the managing agent to carry out a risk assessment which would need to cover the issues you have raised. Your estate should have Public Liability Insurance which should cover such issues as an AGM. The church hall should also have a P & L insurance which would cover you and the cost passed to you in the hire cost. The managing agent will be able to provide you a copy of your insurance for you to check the cover but £5m would be a usual cover for this. [Submitted July 2019]

Q: Asbestos

Q : I have filled in a questionnaire for the sale of a property and they have asked for an asbestos report. We have never had an asbestos report and the previous secretary informs me that there is no asbestos in the building. But is it a legal requirement? FPRA Chairman Bob Smytherman replies : The simple answer is yes, the management company does require an asbestos survey to the common parts of the block by legislation. In reality this need not be onerous, but given the age of your block I would be surprised if there is not traces of “low risk” asbestos, perhaps within floor coverings, ceilings or fire doors. If this is the case it is unlikely that full removal of the asbestos is required and a simple “do not remove/disturb” label on the area affected will be required. I would be interested to know how the previous secretary knew that there was no asbestos present without a survey? If this information was as a result of a specialist survey then this could be used as evidence of that fact. If you have no such evidence to determine the presence or otherwise of asbestos I would strongly recommend you contact a specialist company to commission a survey as a priority.

Q: Asbestos

Asbestos Q: We are completing form LPE1 for the sale of one of our flats. One question asks if there has been an asbestos survey done. There has not. Is it compulsory for us to have this survey carried out? – and how much is it likely to cost? We are a block of six purpose built flats, constructed in 1981. FPRA Hon Consultant Emily Shepcar replies: Thank you for your enquiry. The Control of Asbestos Regulations 2012 are the governing document in relation to asbestos. If your property was built or converted prior to 2001, as the party responsible for the communal areas, you would need to have an asbestos management survey on file. This is an assessment of the property to identify any areas where asbestos may be present and to identify what measures need to be put in place to manage any asbestos. It is important to make clear to any assessor that the survey only extends to the communal areas of the property and should be non-intrusive. There is no requirement for you to investigate the individual flats. It may be that a report will give you a clean bill of health with no asbestos found. If this is the case it should be a one-off exercise and the report can be retained on file. However, if there are areas of asbestos noted advice will be given on how to manage this. This may be by way of an annual re-inspection, labelling and monitoring the area, or encapsulating or removing the asbestos. It is important that any contractors are made aware of any asbestos within the building so that they do not disturb this by accident during the course of any works. I cannot give any firm idea on prices as I am not local to your area but I would expect a management survey for a block of six flats to be around £250.00 to £400.00. [Submitted August 2019]

Q: Asbestos

Asbestos Q: We are completing form LPE1 for the sale of one of our flats. One question asks if there has been an asbestos survey done. There has not. Is it compulsory for us to have this survey carried out? – and how much is it likely to cost? We are a block of six purpose built flats, constructed in 1981. FPRA Hon Consultant Emily Orner replies: Thank you for your enquiry. The Control of Asbestos Regulations 2012 are the governing document in relation to asbestos. If your property was built or converted prior to 2001, as the party responsible for the communal areas, you would need to have an asbestos management survey on file. This is an assessment of the property to identify any areas where asbestos may be present and to identify what measures need to be put in place to manage any asbestos. It is important to make clear to any assessor that the survey only extends to the communal areas of the property and should be non-intrusive. There is no requirement for you to investigate the individual flats. It may be that a report will give you a clean bill of health with no asbestos found. If this is the case it should be a one-off exercise and the report can be retained on file. However, if there are areas of asbestos noted advice will be given on how to manage this. This may be by way of an annual re-inspection, labelling and monitoring the area, or encapsulating or removing the asbestos. It is important that any contractors are made aware of any asbestos within the building so that they do not disturb this by accident during the course of any works. I cannot give any firm idea on prices as I am not local to your area but I would expect a management survey for a block of six flats to be around £250.00 to £400.00. [Submitted August 2019]

Question 1

“Stay Put” in case of Fire?

admin · Accepted Answer

Q: We were built in 1996 and according to plans the flats are compartmentalised. We're checking safety, and are wondering about the "stay put" recommendation found in all the guides from Government and ARMA. It feels intuitively right for tall blocks (even after Grenfell) but wrong for our three/four stories with five separate staircases. A: FPRA Chairman Bob Smytherman replies: I have been very busy since Grenfell tragedy regarding this issue and currently involved with a Government appointed enquiry looking at this issue. The key answer lies with your Fire Risk Assessment (FRA) where you will need to determine a safe ‘means of escape’ in the event of a fire in your building. My own view, having taken advice from my own local fire service when completing the FRA in my block is, where the building is compartmentalised and each flat separated from the rest of the building with a 30 minute fire door, then ‘stay put’ is usually the best policy. It’s simple to understand and safe as if you discover a fire and can isolate from the rest of the building for at least 30 minutes then this allows enough time to allow the fire service to reach you. Having an exit policy can often result in panic as everyone exits the building at the same time. It is then complicated by someone needed to roll call to ensure everyone is out and at the meeting point, which is not always easy to define in a block of flats. I would strongly recommend seeking advice from your local fire service who will usually send someone out free of charge to review this with you to establish the safest means of exiting the building in the event of a fire. Question submitted March 2018

Question 2

2006 Companies Act

Accepted Answer

Could you explain how the 2006 Companies Act will affect the business of our freehold company. We know, for example, that the Act no longer requires companies to hold AGMs, but we are not sure whether our own Mems and Arts still require it. The FPRA replies: Your letter raises an interesting point on the changes brought in by the Companies Act 2006. You should bear in mind that, besides those articles contained in the printed document, your Articles of Association also incorporate all “the Regulations contained in Table A in the Schedule to the Companies (Tables A to F) Regulations” as amended, but these did not include any requirement that you hold an AGM, so I would agree that you are no longer under any obligation to hold one. You are no longer required to lay accounts before an AGM, and no longer have to get an AGM to appoint auditors. As a small company you do not need to have your accounts audited, in the strict sense of the word, unless the members require an audit. The Companies Act 2006 allows for all of a private company’s resolutions to be passed as written resolutions, i.e. without the need for a meeting, with only two exceptions: these are resolutions to remove a director or an auditor before the normal expiry of his appointment. The procedure for written resolutions is contained in s288 – 300 of the Companies Act 2006 (which is available on the Internet at http://www.opsi.gov.uk/acts/ ). Commentary on the procedure is to be found in paragraphs 530 to 543 of the Explanatory Notes on the Act, to be found on the same website. You should note that provision is made for a “written resolution” to be effected by e-mail if you wish: it does not have to be in “hard copy” writing. Although the written resolution procedure may be convenient for Residents’ Management Companies which have a lot of absentee leaseholders, if you have been getting reasonable attendances at AGMs, it seems to me to be a good idea to continue to hold a formal meeting so as to have an opportunity from time to time to discuss matters face to face. You do not have to adopt the written resolution procedure. You could, for example, continue to hold General Meetings (they would not be AGMs, as such), and use the written resolution procedure only in an emergency or if you could not get a quorate GM.

Question 3

Abandoned Bikes

Accepted Answer

Q: We have limited accommodation for the growing number of bicycles owned by our 120 residents while valuable space is being taken up by dusty old machines, some of which appear to have been abandoned. Can we give notice to residents that if they do not remove the tag we’ve put on each bicycle by a specified date, the bicycle will be removed and disposed of? If so, what might be a reasonable period of notice? Where do we stand legally if a bicycle we’ve removed is subsequently claimed by a resident? If we have a free-for-all allowing residents themselves to “adopt” unclaimed bicycles, effectively acquire an apparently abandoned bicycle, where do we stand if the original owner comes back to reclaim their old bike? Doing nothing leaves valuable space taken up by some apparently abandoned bicycles, depriving new owners of a space. FPRA Director Bob Slee replies: There is no entitlement under your lease for storage of bicycles on the estate but facilities for doing so have been provided on a concessionary basis. It would be perfectly in order therefore for the concession to be subject to reasonable regulation. The fact that it has not been regulated hitherto could be explained by the fact that it has only recently become necessary to regulate because of the increasing number of residents requiring bicycle storage. Whatever regulation you might introduce would need to be applied equitably and you would have to be very precise about the circumstances under which it might be decided to remove a bicycle from the storage area, where the bicycle would be removed to and how long it would be held there before it was decided to dispose of it. This is not an easy factor to determine. Just because a bicycle has the appearance of being unused doesn’t necessarily mean that it has been abandoned. If a resident leaves a bicycle in the storage area having believed it to be secure but then doesn’t touch it for ten years or so, it might look abandoned, but it still remains that person’s property. Any regulations you might introduce therefore would need to be crystal clear on how abandonment is to be established. A reasonable way of dealing with this might be to issue users with an affixed numbered tag (akin to a parking permit) which would allow you to have visibility of which bicycles belong to whom. You will gather from the foregoing that there is no simple method of dealing with this effectively and it is a matter for judgment whether the problem warrants the remedy. [Submitted March 2020]

Question 4

Aerials

Accepted Answer

Aerials Q: Since our last AGM I have set up a folder for risk assessment/relevant details for outside contractors, should we employ them. There are a couple of matters that each of our flat owners deals with themselves, ie windows, tv aerials, and it was in this context that we had a discussion. If we were employing a contractor to take down an aerial, we would ask for relevant information ie public liability insurance etc, but if the individual flat owner employs them, then we wouldn't? We kicked it around a bit and decided the best thing was to refer to yourselves for some guidance, and you have always been so very helpful in the past. FPRA Committee Member Bob Slee replies: This is always desirable but not necessarily always enforceable; much depends on the wording of the lease. In your case, I believe your lease provides the means to do so. The position with regard to aerials is covered in Section 6 of the First Schedule of the lease. Erection of aerials is subject to the written consent of the landlord and such consent might justifiably include a requirement for contractors erecting the aerial, and undertaking any subsequent repairs or removal, to provide evidence of appropriate third-party liability insurance. More generally, the Second Schedule of the lease grants a number of “easements’ to the lessee allowing workmen to undertake various cleaning, repair and maintenance functions. Section 7 of the Second Schedule underlines the liability of the lessee, in taking advantage of these easements, to ensure among other things that the landlord is not placed at any risk and, in this respect, the landlord is also given power to specify any reasonable rules and regulations. I would suggest that specifying a requirement for any contractor appointed by the lessee to produce evidence of third-party liability insurance would be a reasonable requirement. [Submitted April 2019]

Question 5

Aerials

Accepted Answer

Aerials Q: Since our last AGM I have set up a folder for risk assessment/relevant details for outside contractors, should we employ them. There are a couple of matters that each of our flat owners deals with themselves, ie windows, tv aerials, and it was in this context that we had a discussion. If we were employing a contractor to take down an aerial, we would ask for relevant information ie public liability insurance etc, but if the individual flat owner employs them, then we wouldn't? We kicked it around a bit and decided the best thing was to refer to yourselves for some guidance, and you have always been so very helpful in the past. FPRA Committee Member Bob Slee replies: This is always desirable but not necessarily always enforceable; much depends on the wording of the lease. In your case, I believe your lease provides the means to do so. The position with regard to aerials is covered in Section 6 of the First Schedule of the lease. Erection of aerials is subject to the written consent of the landlord and such consent might justifiably include a requirement for contractors erecting the aerial, and undertaking any subsequent repairs or removal, to provide evidence of appropriate third-party liability insurance. More generally, the Second Schedule of the lease grants a number of “easements’ to the lessee allowing workmen to undertake various cleaning, repair and maintenance functions. Section 7 of the Second Schedule underlines the liability of the lessee, in taking advantage of these easements, to ensure among other things that the landlord is not placed at any risk and, in this respect, the landlord is also given power to specify any reasonable rules and regulations. I would suggest that specifying a requirement for any contractor appointed by the lessee to produce evidence of third-party liability insurance would be a reasonable requirement. [Submitted April 2019]

Question 6

AGM - Show of Hands

Accepted Answer

Q: I believe there have been changes in the law which permit voting on a show of hands at company general meetings by holders of proxies, regardless of the provisions of the company’s Articles. I sense that we may have a situation at our forthcoming AGM where a shareholder who also holds another shareholder’s proxy expects two votes on a show of hands. It would be cumbersome to resolve the matter each time it arose by conducting a poll so I would be grateful for advice on the following question: If a shareholder is proxy for one or more other shareholders, how many votes does he have on a show of hands where the company’s Articles provide that “on a show of hands every member present in person shall have one vote, and on a poll every member shall have one vote for each share of which he is a holder”? FPRA Vice-Chairman Richard Williams replies: The answer is that , on a vote by a show of hands , a member can only raise one hand so effectively has only one vote, however many proxies he has. The convention is that on a show of hands the chairman will ask for members in favour to raise their hands, and then ask for those against to raise their hands. Depending on the terms of the proxies he holds a member may raise his hand on each occasion, which will effectively be one vote in favour and one against. If there are contentious issues, ie. which will not be able to be “nodded through” and declared carried by the Chairman (whose word is final) on a show of hands, there will be no alternative to a poll. [Submitted May 2017]

Question 7

AGM in Garden

Accepted Answer

AGM in Garden Q: We usually have our AGM in a local church hall. One of our Committee members was keen to investigate having this in our garden to increase attendance. Where do we stand from a liability perspective? If someone has a trip, falls and hurts themselves while at the church, presumably this comes under their insurances/liability? If we do have the event on our grounds (with approval from the managing agent), do we need public liability insurance, risk assessments etc, or would this all be covered by the freeholder/managing agent insurances? FPRA Chairman Bob Smytherman replies: Changing venues for an AGM to increase attendance is a common issue facing our members. Providing a convenient and comfortable venue should be the main priority. If you decide to hold on your premises, such as a communal garden, I suggest asking the managing agent to carry out a risk assessment which would need to cover the issues you have raised. Your estate should have Public Liability Insurance which should cover such issues as an AGM. The church hall should also have a P & L insurance which would cover you and the cost passed to you in the hire cost. The managing agent will be able to provide you a copy of your insurance for you to check the cover but £5m would be a usual cover for this. [Submitted July 2019]

Question 8

AGMs and Electric Car Charging

Accepted Answer

AGMs and Electric Car Charging Q: Could you clarify how residents can request inclusion on an RMC GM agenda of items for discussion and resolutions to be voted on:

Can residents simply request the items to be added or is there a process that needs to be followed, if so what is it?
Can RMC directors refuse to include items for discussion or resolutions to be voted on, if so under what circumstances?

On a different note, your article in Issue 127 on electric car charging and the issues faced by flat owners was very informative. However, it did not mention whether FPRA is engaging with the Government to address the problems leasehold flat owners face in the provision of charging points: if so perhaps an update on what action is being taken would be helpful and, if not, why is FPRA not engaging with the government? FPRA Chairman Bob Smytherman replies: I have been an RMC Director for over 25 years of a self-managing Block. The key document for all shareholders to consider is your Company Articles of Association which will set out to each shareholder how to bring resolutions to a formal GM usually they state giving 14 days’ notice for an item included under AOB. Providing the due notice has been given I would strongly advise against considering blocking discussion on the matter. During the notice period this will give the Directors the opportunity how to respond to item being raised and to prepare a recommendation for the meeting in response to the issue. What we include on my block’s AGM agenda is a ‘General Question Time’. This gives leaseholders the opportunity to ask anything related to work of Directors and we request technical questions are provided in advance to enable a full response to be given at the meeting. If notice of the question hasn’t been given we seek to respond in writing after the meeting and update the draft minutes at the next meeting. If proposals are put to a meeting that are not practical or legally within the remit of the Directors, then the Directors should refuse to implement as they are responsible for the running of the Company within the Articles of Association and to comply with the Lease, if this is the case the decision of the Directors should be communicated to all shareholders as soon a practical giving reasons for not carrying out the wish of the shareholders. Personally I would actively encourage people to raise items for discussion and inclusion on the agenda in advance of a formal resolution being proposed. This will allow time for open discussion and build consensus ahead of Directors bringing back a formal resolution. If necessary that can be put forward to the vote, having taken the necessary legal advice that what is proposed is both reasonable and practical and within the remit of the Company. Electric Vehicle Charging is another issue that the FPRA are having to influence a number of Government departments, which is not always easy. The Government has certainly given us plenty of notice as to petrol and diesel cars being banned. Of course the reality for most leasehold blocks with parking is that there are simply very few options to provide facilities for charging on their estates and it’s something we haven’t begun to consider in my block as it’s just too difficult. [Submitted January 2019]

Question 9

Air Con Query

Accepted Answer

Q: We would appreciate some advice on a matter of alteration to demised premises on medical grounds. The background is as follows: A resident aged 60+ has sleep apnea and COPD ( not in dispute) and has requested an installation of and externally situated air condition unit with and internal high level split vent fixed to an adjacent flats wall. We (the Association Directors) had a meeting and approved consent subject to no adverse comments from the other 26 residents. All relevant information was issued via email to the 27 residents and we have had received four replies for the installation, 10 against, three no comments and 10 no response. We have informed the resident that to have this installation installed would require a breach of the building walls which under the "Lease Agreement" Paragraph 2 sub para 5 would require permission in writing from the Lessor. We are in a dilemma in which we either ignore the Lease Agreement and the responses from the residents and consent to the installation on medical grounds. The resident is now emailed us to say that he is contact with the Housing Ombudsman, local council & a local MP and seeking to take the Association to court via reference with a solicitor stating legal, procedural, unnecessary & irrelevant remarks. In fairness to ALL residents we have carried out a clear and informative report to all and now await the final decision on whether to agree on medical grounds or refuse on unsightly air con unit fixed to external wall. It has been suggested by some of the residents that a free standing unit can be used to give the same affect. FPRA Legal Adviser Nick Roberts replies: The query raises a number of interrelated issues. I find that there is a considerable degree of misunderstanding over some of the issues that arise where disability and discrimination issues arise in the context of leases. Sometimes the advice offered to those who think they have been adversely affected appears to be over-influenced by the adviser’s view of what the law ought to be, rather than what it is. Firstly, you seem to be proceeding under the assumption that the request made by the resident falls within Clause 2(5) of your lease. Is this a point upon which you have received legal advice, or is simply an assumption? It is understandable that you might assume that it would cover what the resident is suggesting, but I am firmly of the view that it is not. It refers to ‘...any alteration in the construction....of the demised premises’. The ‘demised premises’ is carefully defined in the First Schedule to the lease. It includes ‘...the plaster coverings of walls but shall not otherwise include any part of the external walls ....of the Building...’ So in proposing making a breach in the external walls the resident is not proposing an alteration. He is proposing to do something to a part of the Building which is not vested in him, and does not belong to him, but to the Company. (I should perhaps add that the final words of Clause 2(5) do not alter this, as the final word ‘thereof’ means ‘of the demised premises’ so the reference there to ‘....the walls timbers ceilings doors or windows’ means the walls, timbers, etc. within the flat. This makes sense and is consistent with the First Schedule as that includes the windows and window frames within the demise). It is important therefore to note that what the resident is proposing is not, as a matter of law, an alteration to his own flat, but an interference to the common parts which, prima facie, would be a trespass. Clause 2(5) refers to ‘the consent in writing of the Lessor’. Section 19(2) of the Landlord and Tenant Act 1927 is relevant here, because this overrides the exact wording of the lease, and says that Clause 2(5) must be read as if the words ‘such consent not to be unreasonably held’ appeared there. This means that a court can rule on the reasonableness or otherwise of a refusal of consent. But there is decided case law to the affect that this does not extend to alterations which are not alterations to the tenant’s demised premises but which impinge upon property which remains in the ownership of the Company (viz. the external walls). The courts have explicitly said that the reasonableness of a landlord’s consent cannot be challenged if the tenant is proposing to do something which amounts to a trespass to the landlord’s own property. The landlord can refuse, even unreasonably. I can give you the references if you need them to respond to any of the bodies mentioned in your letter. This does not, of course, mean that the Company cannot consent to an alteration which impinges upon the property retained by it. This is always possible. But it can be on the Company’s terms, including, if you wish, a provision that the installation be removed and the wall made good if the resident ceases to live in the flat. This is not, however, the end of the story. Section 36 of the Equality Act 2010 does contain provisions which can require a landlord to consent to structural alterations to the common parts, if disability discrimination issues are engaged.. ‘Common parts’ is defined for the purposes of this part of the Act in a way which includes both the exterior main structure and also the common parts within the building. (I cannot think of any legislation where medical issues per se would override the general law, but as what is being described would appear to be a long term health issue it might well count as a disability). However, Section 36 of the Equality Act 2010 has not yet been brought into force, and there seems no immediate prospect of its becoming the law. (At the risk of digression, it is all very well to require those who are in control of common parts to adapt them to facilitate disabled access, but the Act does not address who would have to bear the cost. Further, a problem that I have encountered several times within FPRA is that often the bone of contention is that one leaseholder living on an upper floor of a block without a lift wants to install a stairlift; this might make life easier for her, but it might make the stairs less safe to use for her neighbour who is perhaps a bit unsteady on his feet, and needs to make use of a left-hand or right hand handrail, but will not or cannot make use of a stairlift. How should this conflict be resolve? – either party could invoke a disability discrimination argument. Will the stairlift, if installed, be removed, or should it be left in place? No mechanisms have been put in place to resolve these issues. Unless and until the Government can come up with Statutory Regulations which address these issues and are broadly acceptable to all concerned, Section 36 is likely to remain ‘on the statute book’ but not in force.) The relevant law on disability discrimination, so far as it concerns leasehold premises, is still therefore that contained in the Disability Discrimination Act 1995 which (a) can apply to requests to make alterations within a flat; and (b) can require the manager of common parts to improve lighting, or to provide Braille notices, or to locate lift buttons so that wheelchair users can use them, but does not extend to structural alterations. Before concluding I ought perhaps to mention that, strictly speaking, you as Directors of the Company are not under any obligation to sound out the views of your member leaseholders, or indeed to act on their views. The management of a limited company is the responsibility of its directors, not its members. The only way in which the members can determine how the directors act is if they pass a Special Resolution (75 per cent of those present and voting at an AGM or other GM; or alternatively the written special resolution procedure may be applicable – a sort of ‘round robin’) which requires the directors to act in a particular way. That said, it may well be good practice to take soundings of the neighbours who will be affected – though be wary of those who have strong views but do not want to take on the responsibility of being a director, as that would involve having to face up to those such as the resident who will be affected by the refusal. [Submitted June 2016]

Question 10

Airbnb

Accepted Answer

Q: We have recently become aware that one of our leaseholders has decided to make his flat available to people seeking overnight accommodation. We have received a number of complaints from other leaseholders and are concerned in regard to the security and safety of residents, and as to how such activities might affect our insurance arrangements. We will of course be writing to our insurers in this regard. We are sure we are not alone with the problem. FPRA Hon Consultant Yashmin Mistry replies: There has been a recent change in the law relating to subletting in London. However, while planning permission for short term lets is no longer required, the terms of the individual leases still need to be adhered to. Before 26 May 2015, a lessee in London wishing to sublet their flat for 90 consecutive nights or fewer needed planning permission from their local council. Our experience of dealing with Royal Borough of Kensington & Chelsea and City of Westminster often showed planning permission was unlikely to be granted. Good news then that the law has changed. However, whist this means more flexibility (and potentially more rental income) for landlords, it increases the risks of anti-social behaviour, damage to common parts, a high turnover of tenants and complaints to on-site staff and property managers. Crucially, while planning permission for short term lets is no longer required, the terms of the individual leases still need to be adhered to. Therefore, if a lease restricts subletting in some way, the lease will need to be adhered to. The lease is therefore key to what enforcement action the landlord can take going forward. The freeholder is indeed the landlord. I sometimes refer to them interchangeably. I must, however, advise that I think the expenses of complying with section 21 LTA 1985 are within the scope of the service charge, even if you would prefer that this were not the case (in order

Question 11

Annual Contracts

Accepted Answer

Annual Contracts Q: We are planning the decorating of communal hallways this year and we were checking the Section 20 Process, (we have done this on a number of occasions before but wanted to make sure nothing had changed). We came across the following on the Lease Advice website and are now concerned about our annual contracts for gardening, cleaning, insurance, maintenance etc. “QUALIFYING LONG-TERM AGREEMENTS A qualifying long-term agreement is an agreement entered into by the landlord with a wholly independent organisation or contractor for a period of more than 12 months. (Agreements before 31 October 2003 are exempt.) The deciding factor is the minimum length of the commitment. In other words, it is an agreement for a term which must exceed 12 months. Landlords must consult where the amount payable by any one contributing leaseholder under the agreement in any accounting period exceeds £100. Thus, in a property with unequal service charges, the landlord must consult all leaseholders if any one of them would have to pay more than £100 in any one year. The figure is to be calculated on the basis of the leaseholder’s total contribution resulting from the agreement, including VAT. If consultation is not undertaken, the landlord may not be able to recover more than £100 per leaseholder in any accounting period towards the costs under the agreement. Examples of potentially qualifying long-term agreements include:

agreements affecting the building generally (e.g. lifts, entry-phone systems, waste management or maintenance contracts);
cleaning and gardening;
insurance;
utilities; and
management agency agreements.

Some of these services may only have one realistically possible supplier. Nonetheless, consultation must be carried out, unless dispensation from compliance has been granted by the Tribunal. Contracts that are not qualifying long-term agreements include:

contracts of employment;
an agreement between a holding company and its subsidiary, or between subsidiaries of the same holding company (the definitions following those in the Companies Act 2006);
an agreement for less than five years which was entered into at a point when there were no leaseholders or leaseholders at the property (for example on a new development);
an agreement for more than twelve months which was entered into before 31 October 2003.

QUALIFYING WORKS UNDER A LONG-TERM AGREEMENT Where the long-term agreement includes provision for the carrying out of works to the property (for example, a schedule of rates agreement for general maintenance), and these works will result in a charge to any one leaseholder of more than £250, then a separate consultation must be carried out under the provisions of Schedule 3. The original consultation under Schedule 1 in respect of the agreement itself does not provide any exemption from consultation for the works. This requirement for consultation for works equally applies in cases of long-term agreements entered into prior to 31st October 2003 where at the time no consultation on the agreement was required.” Our annual cost for cleaning has recently increased due to a change of company but would come below the £100 per flat. Other costs such as insurance (£12,500 per annum) and gardening (£21,000 per annum) would fall within the £100 per flat. Should we be carrying out a Section 20 for all items individually, collectively?, or are they exempt from Section 20 if they are reviewed annually? On this basis should we be obtaining quotations on an annual basis to ensure best value for money? What processes should we have in place to ensure we do not fall foul of the “Long Term Agreement” consultation process? FPRA Director Shula Rich replies: If your contracts are for one year or less, then they are not qualifying long term agreements. Generally, to be certain, blocks make the contacts for 364 days - one year less a day. If the contract has a firm end date of one year less a day, it can be renewed each year for a further similar period. It’s excellent that you are paying such close attention to the regulations. [Submitted February 2019]

Question 12

Anti-social behaviour

Accepted Answer

Q: Over the last three years, one of our residents, who is a leaseholder, has been having heated arguments within their flat including shouting, banging of furniture, slamming of doors at all hours of the day and night. On one occasion the lady of the flat commenced cleaning her bathroom with petrol at 00:30 am to the extent the Fire Brigade were called due to the toxic fumes causing concern to the other residents. We have sent numerous letters and emails to the resident concerned and it does recede for a short period, but still continues. This week the tenant of the flat below moved out citing deteriorating health and being unable to sleep or relax due to constant shouting and loud conversations. The lady has been a tenant for over 25 years. Her landlord has again written to the noisy neighbour stating that her new tenants will be moving in shortly and have small children, and the fear is that they too may be driven away by the unsocial behaviour of these leaseholders. She says she has sought legal advice that if her new tenants leave due to their behaviour she will seek loss of rent and legal costs. Is there any other recourse or legal action that we as an association can take to stop the nuisance behaviour continuing? FPRA Chairman Bob Smytherman replies: These are really difficult situations, especially when warning letters are just seen as provocative. With regards possible action, it is for the local authority to deal with and take action for anti-social behaviour and should be involved at an early opportunity to collect the necessary evidence. This evidence could also be used by yourselves to take action for possible breach in the terms of the lease. I am not a lawyer but from experience bringing such matters to court are not easy and would require very clear evidence from statutory authorities such as the Fire Service and Environmental Health as well as being potentially costly. My advice would be to seek local authority action which can lead to Anti Social Behaviour Orders to force a change in behaviour or face the full force of the criminal law. Providing you take all reasonable steps to prevent this anti-social behaviour I would think it would very difficult to seek redress from the association for loss of rent from a departing tenant. [Submitted August 2016]

Question 13

Appointing a Company Secretary

Accepted Answer

We need to appoint our first Company Secretary to the management committee (a small block of 9 flats) would value your suggestions as to the key qualities and qualifications we should be looking for - both legal and financial. Are there any obvious pitfalls we should avoid? The FPRA replies: As the Chair of a Freehold Company managing a block of flats since 1996, as well as a lecturer on Block Management, I do hope you won't be at all offended if I reply that the biggest mistake is appointing a Company Secretary at all. After the 2006 Act there was no need for a Company Secretary any more. Now if your memoranda and articles of Association mention a Company Secretary then you will need to amend the articles and send the new articles to Companies House. Instructions are on the Companies House web site or come back to us. If no Secretary is mentioned then suggest you do not appoint one. As you rightly suggest it's a big responsibility and needs special qualities and knowledge, but for small RMCs your returns can be dormant and filed by an accountant or yourselves. Your bank account should be with an agent or in a separate trust fund. So in this type of company we don't need a Secretary to file accounts. Also a lessee secretary may sell their flat, or worse forget to file the accounts - the worst thing that can happen.

Question 14

Are These Charges Legal?

Accepted Answer

Q: During a recent change of Development Manager (DM) and the need for a part-time Deputy DM to cover the transition gap until a new DM could be appointed, unusually high charges were set against our Service Charge account for the change-over period. When the Managing Agent (MA) was questioned about these charges some disturbing facts were revealed, for which we now seek your comments. Before replacement, the out-going DM went on to sick leave. A Deputy DM was then employed on a ‘zero-hours contract’ basis, working initially for a few hours a week only, increasing to 25 hrs/wk before the new DM took over. During this time the Deputy DM was paid: (a) An hourly rate as a PAYE employee of the MA. (b) Travelling expenses to and from our block by car each day. (c) Holiday pay at an enhanced rate 15 per cent above the minimum national entitlement for full-time employment. The enhancement was in recognition of his ‘valuable services. In addition, the records show two further entries of much interest: (d) Employer’s NI Contribution’. The accounts of the full-time DM show similar entries. (e) Accommodation Allowance. This is compensation to the DM for income tax paid on a benefit in kind, namely the DM’s flat Whereas the residents can accept that items, (a), (b) and (c) are probably legitimate charges to the Service Charge account, albeit rather excessive, items (d) and (e) seem to be unjustified. The MA employs the DMs not the residents and Income Tax liabilities of the DMs should not be transferred to residents. Your comments on the above items and particularly on the legality of items (d) and (e) would be much appreciated. FPRA Committee Member Amanda Gourlay replies: I have read and considered the question asked, and read the lease. This is a difficult question. The lease envisages that a flat will be available for the occupation of a warden - that much is clear from the maintenance obligations of the landlord, which include an obligation to maintain the Warden’s flat, the assistant Warden’s accommodation and office. It would also appear, from a reading of clauses 3(2) and 5(10) of the lease that the cost of maintaining the services of a warden are recoverable from the lessees. The questioner considers that the managing agent employs the development managers, not the residents, and that income tax liabilities of the development managers should not be transferred to the residents. I am not an expert in tax law. It seems to me however from a landlord and tenant perspective that the lease allows for the landlord to charge to the lessees the cost of maintaining the services of a warden. The managing agents’ contract and fee may include the provision of a warden. If it does, in my opinion nothing further should be charged to the service charge. If however the managing agents’ contract and fee do not do so, I think that the landlord is entitled to charge to the lessees such reasonable costs as it incurs in relation to its maintenance of the warden service. If the amount charged for the temporary warden was unreasonably high because of the accommodation allowance, or, if all of the temporary warden’s NI/accommodation allowance was charged to you, even though the temporary warden worked on several estates. that allowance may be susceptible to challenge. In summary: the lease allows the landlord to recover the costs of a warden. If the managing agent provides the warden under its contract, the cost of doing so may be wrapped up in its fee. In that event it seems to me that nothing further can be charged to the lessees. If the cost of providing the warden is not wrapped up in the managing agents' fee but is a cost to the landlord, it seems to me that the landlord is probably entitled to charge the gross cost to the lessees, subject to the normal section 19 reasonableness test as noted above. [Submitted June 2016]

Question 15

Are We Paying Too Much?

Accepted Answer

Q: We are at present paying approximately £9,550 for our building and terrorism insurance to our ground landlord, whose responsibility this is, and who after paying the insurance company, looks to us for the repayment of the premium. We have established that that we could obtain equivalent cover from an equally competent and well reputed insurance company for considerably less (of the order of £1,000 less). We have discussed this at length with the ground landlord but they are not willing to reduce their price (for reasons that we can well imagine). Is there any tribunal, ombudsman or other authority that we can apply to to resolve this difference that we have with our ground landlord? FPRA Hon Consultant Belinda Thorpe replies: The most effective approach would be to take the ground landlord to the First Tier Tribunal who will be able to challenge the insurance charges for reasonableness. I would, however, recommend that at least three quotes are obtained to show a "normal" premium level. I would also ensure that quotations are gained using the same rebuilding cost as your current insurance, and that you approach specialist insurance providers to ensure the policy is designed for flats. It is also important to be aware of all claims that may have been incepted over the last five years, for both communal areas and individual flats, as if the history is different to the one that the ground landlord has, then this could have a considerable effect on the insurance quote obtained. [Submitted September 2016]

Question 16

Asbestos

Accepted Answer

Q: I have filled in a questionnaire for the sale of a property and they have asked for an asbestos report. We have never had an asbestos report and the previous secretary informs me that there is no asbestos in the building. But is it a legal requirement? FPRA Chairman Bob Smytherman replies: The simple answer is yes, the management company does require an asbestos survey to the common parts of the block by legislation. In reality this need not be onerous, but given the age of your block I would be surprised if there is not traces of “low risk” asbestos, perhaps within floor coverings, ceilings or fire doors. If this is the case it is unlikely that full removal of the asbestos is required and a simple “do not remove/disturb” label on the area affected will be required. I would be interested to know how the previous secretary knew that there was no asbestos present without a survey? If this information was as a result of a specialist survey then this could be used as evidence of that fact. If you have no such evidence to determine the presence or otherwise of asbestos I would strongly recommend you contact a specialist company to commission a survey as a priority.

Question 17

Asbestos

Accepted Answer

Q: We have been in touch with a flooring company as we need to replace the present floor tiles in the communal areas. The company have said that they will visit to give an estimate but that they would not be able to undertake any work without an asbestos survey report. I have written to the agents for the landlord to see if they have any record of the materials used in the construction of our blocks of flats – built around 1960. I think it doubtful that they will have this information, but whatever the response, I think we will still need an up-to-date report. Can you tell me what the process will be? And do you have a list of recommended/qualified professionals that we could approach to carry out such an inspection? One other point: what is a reasonable fee to charge for filling in the answers to multiple questions from a solicitor acting for a new purchaser of a flat? We have provided this information free in the past but I was told at your AGM that it is normal to charge! FPRA Chairman Bob Smytherman replies: Thank you for your question about Asbestos which has been passed to me as I deal with these matters for the FPRA. The flooring contractor is quite correct not to carry out any work until they have had a sight of the Asbestos Management Plan which is a legal requirement for your Company and something than should not be ignored. The fact your Block was built in the 1960s would indicate that it is likely that your Block does contain Asbestos in the common areas such as flooring, fire doors and alike. As an independent organisation, and in order to protect our impartiality, I am unable to recommend a specific contractor but recommend that you use a specialist contractor with experience in producing asbestos management plans for common areas of blocks of flats. Your local trading standards department from the council will usually hold a list of approved contractors which is always a good starting point. [Submitted January 2017]

Question 18

Asbestos

Accepted Answer

Asbestos Q: We are completing form LPE1 for the sale of one of our flats. One question asks if there has been an asbestos survey done. There has not. Is it compulsory for us to have this survey carried out? – and how much is it likely to cost? We are a block of six purpose built flats, constructed in 1981. FPRA Hon Consultant Emily Shepcar replies: Thank you for your enquiry. The Control of Asbestos Regulations 2012 are the governing document in relation to asbestos. If your property was built or converted prior to 2001, as the party responsible for the communal areas, you would need to have an asbestos management survey on file. This is an assessment of the property to identify any areas where asbestos may be present and to identify what measures need to be put in place to manage any asbestos. It is important to make clear to any assessor that the survey only extends to the communal areas of the property and should be non-intrusive. There is no requirement for you to investigate the individual flats. It may be that a report will give you a clean bill of health with no asbestos found. If this is the case it should be a one-off exercise and the report can be retained on file. However, if there are areas of asbestos noted advice will be given on how to manage this. This may be by way of an annual re-inspection, labelling and monitoring the area, or encapsulating or removing the asbestos. It is important that any contractors are made aware of any asbestos within the building so that they do not disturb this by accident during the course of any works. I cannot give any firm idea on prices as I am not local to your area but I would expect a management survey for a block of six flats to be around £250.00 to £400.00. [Submitted August 2019]

Question 19

Asbestos

Accepted Answer

Asbestos Q: We are completing form LPE1 for the sale of one of our flats. One question asks if there has been an asbestos survey done. There has not. Is it compulsory for us to have this survey carried out? – and how much is it likely to cost? We are a block of six purpose built flats, constructed in 1981. FPRA Hon Consultant Emily Orner replies: Thank you for your enquiry. The Control of Asbestos Regulations 2012 are the governing document in relation to asbestos. If your property was built or converted prior to 2001, as the party responsible for the communal areas, you would need to have an asbestos management survey on file. This is an assessment of the property to identify any areas where asbestos may be present and to identify what measures need to be put in place to manage any asbestos. It is important to make clear to any assessor that the survey only extends to the communal areas of the property and should be non-intrusive. There is no requirement for you to investigate the individual flats. It may be that a report will give you a clean bill of health with no asbestos found. If this is the case it should be a one-off exercise and the report can be retained on file. However, if there are areas of asbestos noted advice will be given on how to manage this. This may be by way of an annual re-inspection, labelling and monitoring the area, or encapsulating or removing the asbestos. It is important that any contractors are made aware of any asbestos within the building so that they do not disturb this by accident during the course of any works. I cannot give any firm idea on prices as I am not local to your area but I would expect a management survey for a block of six flats to be around £250.00 to £400.00. [Submitted August 2019]

Question 20

Asbestos in our Lift

Accepted Answer

Q: We had an asbestos survey of the common parts of our building (built 1964) in 2013. Some areas were identified which required removal. This was dealt with by a licenced contractor. Other low risk areas were noted and labelled. During a recent lift upgrade the contractors requested a further survey of the areas in which they would be working. Some asbestos was identified but this did not necessitate removal prior to work commencing. The asbestos surveyor who undertook this survey on behalf of the lift company has advised that it is necessary for us to have an annual survey of common parts. Our earlier understanding was that this is not necessary. Reading on the subject on your website would also indicate this to be the case. Can you please advise us if an annual survey of the common parts is now mandatory? We wonder if the surveyor is simply trying to generate business. We have been unable to contact our original surveyor and would be grateful if you have a list of reputable asbestos surveyors for this area, who we would be able to use in the future, should the need arise. Following my initial query I have learnt we have been told to keep an annual register as asbestos has been discovered in a communal part of the building - in this instance in the control unit of the goods lift. This, we have been advised, involves having an annual asbestos survey carried out. We are hoping that you can clarify this for us. FPRA Chairman Bob Smytherman replies: Thank you for your email and query about the issue of asbestos in the common parts which has been passed to me for response from a practical point of view and not a legal one. My understanding of the asbestos regulations is there is no need for a further survey on an annual basis provided as this is important. That there has been no material change to the common areas which has resulted in the asbestos being disturbed. I suspect the lift contractor is being cautious to protect their staff asking for an annual survey to satisfy themselves that it is still safe to work in the area. Provided you can demonstrate to the lift contractor that the asbestos is still being managed in accordance with the original plan either by way of removal or labelling AND no changes have occurred since the plan was produced then my view is that an annual survey would be disproportionate. FPRA Hon Consultant Paul Masterson, lift expert, adds: Management Survey There is no requirement for an annual report from a specialist, however the ACM (asbestos containing materials) should be examined to ensure that conditions have not changed (deterioration/damage), the recommendation being not greater than every 12 months. Providing nothing has changed, the building register should be updated to reflect this, photographs of ACM condition is advisable. Refurbishment/Demolition Survey Should there be refurbishment/demolition works, then a specialist surveyor would be required to ensure nobody will be harmed by work on ACM and that such work will be done by the right contractor in the right way. So providing the condition has not changed and no refurbishment/demolition is planned the Management Survey once per annum should be sufficient. [Submitted July 2016]

Question 21

Auditing Accounts and Changing Managing Agents

Accepted Answer

Q: One of our directors has suggested that she could audit our annual accounts for the AGM and save us £300 pa. However in our lease it states that the accounts have to be certified by a competent chartered accountant and she is a MAAT and has been a member of the Association of Accounting Technicians for 25 years. We are not sure if she is qualified to audit our accounts. Four of the directors are far from happy with our Management Company and would like to change to one that has been recommended. Do we need all Directors to agree to change or just a majority? FPRA Chairman Bob Smytherman replies: Thank you for your queries which have been passed to me me for a response from a practical point of view as an RMC Director myself. The question about one of your Directors taking on the accounts auditing , we have passed this to our Specialist Hon Consultant for the technical and legal response but my practical response would be consider this very carefully and how this would look to other shareholders contributing to the service charge account. If the individual can demonstrate that they can carry out the work competently then I would suggest they tender for the contract and the Directors put your recommendation to the AGM to appoint auditors. It may if she is awarded the contract to do the accounts after the tender process and due diligence it may be advisable for her to resign as a Director to avoid any conflict of interest. On the second point about replacing managing agents providing it is the Company that employ the agent and not a separate freeholder which is common with many leases then it would be the Directors to run the Company which would include appointment of agents. Decisions such as this are always best when a consensus reached without the need for a 'formal' vote, however strictly speaking it would require a simple majority of the Directors to terminate the agents contract and to engage a new one. My own view is that such important decisions as this affecting the whole membership of the Company is that Directors need to discuss this and make a recommendation to an AGM for all shareholders to vote on. This has the added benefit of being more inclusive and getting shareholders to take responsibility for decisions of the Company. If the Board of Directors are divided on the need to change at all this could be put to an AGM as a simple suggestion if the consensus is to change the Directors would be mandated by the shareholders to seek alternative management or it may be a case of simply holding the existing management to account giving them clear notice to improve along with timescales before taking the 'nuclear' option to remove them altogether which can also be divisive. [submitted March 2016]

Question 22

Banned from Gardening

Accepted Answer

Q: Our development comprises two types of properties: one section is made up of flats for which all the residents pay rent to a housing association (our landlord); the other section is a block of flats which are sold leasehold on the open market. Both sections are for the "over 60's". Our Board of Directors now feels they are no longer qualified to control the day to day running of the properties, due to “new rules and regulations" being imposed upon this type of housing. They announced in January that they are in the process of handing over the running to an outside company. It appears that this company runs several properties in this part of the country all of which seem to concentrate more on not only older residents, but "vulnerable" and therefore are starting to impose more restrictions. They have already made redundant our "live-in" staff, which has caused much upset to the residents, and are planning to install a "call system". We as leaseholders, are upset because we feel that the "ethos" and atmosphere of our flats which in all cases is why we bought into this development, is being spoiled. Last year a couple bought a flat here, having sold their much loved home. Part of the husband's pleasure is the fact that we have been encouraged to "potter" in the gardens if we so wish. He has enjoyed adding plants and generally tidying the area near his flat. He told me last week, he has now been told that due to "health and safety" he is no longer allowed to do his gardening. He is now unhappy and wishing he had not come here now, as am I! Can they impose this restriction on residents in the leasehold section, if it doesn't state so in our leases? A: FPRA Committee Member Shaun O’Sullivan replies: Although I sympathise with your situation and understand the disappointing of some of your residents, the issue you raise goes to the heart of leasehold living. The whole property is owned by the freeholder (landlord) who has (in the case of those who have bought their flats) granted leases (for a premium and for a certain number of years) in respect of individual apartments. However, the common areas and gardens remain in the ownership of the landlord who will grant certain rights or easements over such areas. In your particular case (and as would be the case in all residential leases albeit with marginally different wording) leaseholders (tenants) have, in accordance with the lease been granted the right to use the entrance halls, drives, paths, gardens, paths etc ‘subject to such rules and regulations………as the landlord may from time to time prescribe.’ So, although residents have been given the right to gain access to their flats through the entrance halls and to use the gardens for their enjoyment, this would not normally extend to actually undertaking gardening which would rest with the landlord or his agent with the cost of so doing being met through the Service Charge. One of the dangers of allowing residents to undertake gardening is that what one resident might like might not sit well with another! And if residents took it upon themselves to place pots in the communal garden that could pose a risk to residents / visitors and could compromise the block insurance coverage. Question submitted February 2018

Question 23

Bike Shed Request

Accepted Answer

Q: A request to provide a bike shed has been made by a few members of the management company. It is understood that the lease is paramount. Have looked at it, it seems to say OK if the management company reasonably considers it is for the general benefit. Am I right to worry about this? If only a few members are wanting the shed (say less than half), we have 15 freehold houses with gardens (25 flats) who may well not consider the idea relevant for them, all members would it seems have the right to use the shed, and initial cost could be well over £5000.00 followed by maintenance, management and insurance etc. Directors would not wish to risk a tribunal challenge with possible severe consequences for them if this were even a remote possibility. I look forward to your response. We have benefitted a great deal from your advice in the past. Many thanks FPRA Legal Adviser Nick Roberts replies: I would agree with you that the wording of Clause 3.1 in Schedule 5 of the apartment leases covers the situation that you are querying. Provision of a bicycle could certainly count as a ‘facility amenity or improvement’ such as is contemplated by that clause. I also think that, whilst it is clearly appropriate to take soundings from the leaseholders and the house owners, you might reasonably come to the conclusion that it was ‘for the general benefit of the Estate and its tenants owners and occupiers’ even if a minority of the leaseholders and house owners indicated that they would actually use it. I would agree with you that what may perhaps complicate the situation is the fact that a facility such as a bicycle shed could well be seen as of more benefit to the leaseholders of the apartments than to the house owners. If houseowners own a bicycle, they could, if they wished, presumably build some form or shed or shelter in their own gardens. That then raises the further issue of whether you could alternatively build a bike shed and charge it to the service charge paid by the apartment owners, rather than the general estate service charge payable by all the owners. I see from a service charge breakdown that you sent in connection with a previous query that the service charge is split in this way (indeed, it would have to be, when insurance and other expenses are paid by the apartment owners via the service charge, whereas the house owners would pay their own). It would then of course follow that only the apartment owners would be able to use the bike shed. I have given the matter some thought, and I must say that I think the arguments each way are finely balanced. On the one hand, the same wording appears as both Clause 3.1 of Schedule 5 of the Leases, and also as Clause 1.3 of the First Schedule to the deed of mutual covenant relating to the freehold houses. The ‘Estate’ includes both houses and apartments, and these factors together might be taken as indicating that additional facilities etc. can be provided for everyone, but not for the apartment owners as a separate group. On the other hand, one can think of numerous additional services which it might be reasonable and appropriate to provide for the apartments which would be irrelevant to house owners: entryphones (or video-entryphones), and communal satellite dishes might be examples. I can quite imagine that some judges might feel constrained by the way the clauses were worded to say that one had to provide additional facilities for everyone or not at all, whilst others would say that, as it was always clearly intended that the houseowners and the leaseholders of the apartments would pay a different service charge, it should be possible to provide additional services either generally, or for the apartment owners as a separate group. If you think that the matter is likely to be disputed, then, if you still want to proceed, I do not think you have any option but to get a ruling on this. This then raises the issue of where you would have to go to get a ruling on this. Disputes about whether or not something can be included within a service charge normally go the First-tier Tribunal (Property Chamber), which is given the power by s.27A of the Landlord and Tenant Act 1985 to make prospective rulings as to whether, if costs were to be incurred, they would fall within the scope of the service charge or not. However, this raises a complication. Section 27A of the LTA 1985 and indeed all the provisions about service charges and related matters which are contained in ss 18-29A of the Act apply only to leasehold service charges. This is inconvenient when parts of the service charge cover both leasehold apartments and freehold houses, but I afraid that it follows inexorably from the way that ‘service charge’ is defined in s.18(1), which clearly refers to service charges which are payable by ‘tenants’ (i.e., in this context, leaseholders). If opposition was likely to come from house owners, I do not therefore think there would be any point in applying to the F-tT (which is likely to be the more convenient course of action): you would instead have to apply to the County Court for a ruling on this, as the F-tT would simply have no jurisdiction. If, on the other hand: (1) you decided to make the bike shed a facility for leasehold owners only, and to charge the costs relating to it to the apartment service charge only, and (2) the house owners were all content to accept this, but (3) some apartment owners opposed the construction of the shed – either saying that it was not reasonable to provide one, or that, if it were provided, it should be charged to both house and apartment owners - then I think it ought to be possible to resolve those issues by an application to the F-tT for a prospective ruling on this. I should perhaps add that any ruling by the F-tT would not be binding on the house owners. For this reason I would suggest going to the F-tT only if all of the houseowners do not wish to be involved and are, in effect, already ‘out of the picture’. I appreciate that is all becoming rather complicated, but I must say that quite a high proportion of the queries that I have dealt with for FPRA over the years have involved problems arising out of developments which mix leasehold flats and freehold houses. It really is quite difficult to draft documentation which properly deals with both. I personally feel that, given the state of the present law, such mixed developments should ideally be avoided; but sometimes there is just no other way, particularly where conversion of existing buildings forms all or part of the scheme. [Submitted October 2016]

Question 24

Boundaries

Accepted Answer

Q: I wonder if your legal experts might be able to give us some advice regarding a boundary issue? We are a converted block of six flats surrounded by its own grounds. At the back of the building is a long strip of grass approximately twelve feet wide which separates our domain from the one opposite (an enclave of small houses & flats overlooking a large courtyard). Our actual boundary line is not the whole of this grass area but bisects its length, leaving our neighbours with about three feet of its width on their side. For a number of years we have employed a firm to do all our grass-cutting both front and back. Generally, while doing the back the firm has also included the narrow strip belonging to our neighbours which runs the length of the area. Since this additional cutting has not involved us in any substantial extra charge (and keeps the whole thing looking simultaneously streamlined) we have never bothered to direct otherwise. However, there is a very tall, rather shallowly rooted Kazan cherry tree planted just over the boundary line on our neighbours’ side, and around which our grass-cutters operate. One of our directors is concerned about this as she has recently heard that if maintenance is carried out for a specified number of years (perhaps ten?) on an area belonging to another, then responsibility for that area is de facto conferred on the party doing the maintenance. Therefore if that is the case, then presumably were the tree to be blown down or one of its branches fall and hit a child or a car we, as the maintainers, could be held responsible. Naturally, if the above is legally correct we shall instruct our grass-cutting firm to cease activity beyond the boundary forthwith! If you can shed any light on this I should be most grateful, and will supply any extra information you may need. FPRA Legal Adviser Nick Roberts replies: Your email of 12 September has been forwarded to me as Legal Adviser to FPRA Ltd. I can understand your concern about this. Unfortunately, it may not be easy to give you a definitive answer. What you fellow-director must be thinking of is the possibility that one may acquire legal title to land by adverse possession: what is popularly called “squatters’ rights”. Essentially, if possession of land is enjoyed for 10 years (in some circumstances 12 years), and the real owner does not object, it is possible for the adverse possessor to acquire the title to the land. It is very unlikely that this would apply here: (1) First, it is unlikely that merely mowing a strip of grass, even regularly, could amount to taking possession of it. What amounts to possession depends on the precise nature of the land, but generally it will involve not only treating the land as one’s own, but also excluding all other persons, including the real owner. Unless I have misunderstood the factual scenario, that element does not seem present here. So simply mowing the grass is unlikely to suffice. (2) Second, although it is possible to acquire title to unregistered land – land which is held under traditional title deeds – by adverse possession for 12 years, and this can, in effect, come about automatically, if the land owned by your neighbour is registered at the Land Registry (and these days, this is far more likely to be the case), then however long one is in possession, one does not acquire title unless one applies to the Land Registry to be substituted as the owner. In some, but not all, cases the real owner then has an opportunity to object. For either of these reasons it is unlikely that your company will ever acquire title to the strip of land which belongs to your neighbours. Unfortunately, this does not entirely answer your question, as someone who came on to the strip of land and was injured would be suing under one of the Occupiers’ Liability Acts. Liability as occupier is based on the fact of occupation. The test for occupation may therefore be satisfied more easily than the test for adverse possession. Further, there are no set time periods involved. One cannot therefore rule out the possibility that, by mowing the grass, you would be taken as having assumed occupation for the purposes of the Occupiers’ Liability Acts. That said, I think it is unlikely that you would be held liable. Someone who was injured on the land, or by the tree, is likely to find out who the owner of the land is, and then to sue him or her (who will then pass the claim on their insurance company). Generally if one is the owner of land, and there is not someone else who is more clearly ‘in occupation’ (such as a tenant or licensee) then the law will proceed on the basis that the owner is the occupier, unless there is some good reason why they should not be held to be in occupation. I would also add that, if the tree were to be blown over, and injure someone who was passing by, it is not clear that this would be an occupiers’ liability claim. If, for example, a building is in disrepair and some part of the structure falls off, that would usually be treated as liability on the part of the owner, rather than as occupier. It does not seem logical for you to become liable for a tree simply by mowing the grass around it. Further, your block insurance policy should cover the liability of the company as occupier, and it would seem unduly harsh and restrictive for insurers to attempt to wriggle out of liability on the basis that you were in occupation of a slightly larger area of land than you actually owned. I suspect that any judge would lean against interpreting an occupiers’ liability policy in a way which would cause injustice. That said, I do not think it is possible to say that you might not be held to be in occupation of the extra strip of land beyond the boundary. You might take the view that you are not willing to run any level of risk at all. If you take this view, and you still want to keep the grass properly mowed, then would it be practicable to write to the owner(s) concerned asking if they have any objection to your continuing to mow the grass purely as a matter of convenience, but on the understanding (of course) that they would remain liable for it? If that were recorded in correspondence, I think it would be difficult for the owner(s) to argue that you were now the occupiers for the purposes of the Occupiers’ Liability Acts. [Submitted September 2016]

Question 25

Breach of the Lease

Accepted Answer

Q: It has been noted that a leaseholder of the association has rented another leaseholder’s garage for the purpose of a "Home Business" i.e. used for packaging up parcels for delivery. The leaseholder’s flat is the home office for a business and I have checked our "Lease" and note Section 2 (14) states -and not to use or occupy the demised premises or any part thereof for the purpose of any business as defined in Section 23 (2) of the Landlord and Tenants Act 1954. This part of the Act states -in this part the expression "business" includes a trade, profession or employment and includes any activity on by a body of persons whether corporate or incorporate. The business includes receiving orders from customers and packing and posting orders which are made up in the garage. My question is this: A) what are the rights of the Association to allow or disallow the business to continue, and B) if allowed how this will affect the legalities of our Building Insurance should any damage be caused by the use of the premises as a business. I look forward to your advice in this matter. FPRA Legal Adviser Nick Roberts replies: The activity that you describe is very clearly a breach of the terms of the lease, and the association is entitled to require that it cease. Unfortunately, the restrictions on the use of forfeiture which were included in the Commonhold and Leasehold Reform Act 2002 for the protection of long leaseholders do make it rather a long winded procedure for any landlord – including a landlord which is a company owned by the other leaseholders – to attempt to enforce lease covenants. The first thing that you need to do, surprisingly, is to write to the leaseholder to say that you are minded to forfeit the lease, and that accordingly you will not demand or accept ground rent or service charges. YOU MUST THEN MAKE SURE THAT NO DEMANDS ARE SENT OUT OR RENT OR SERVICE CHARGES ACCEPTED. If you do not do this, the forfeiture could be refused on a technicality. You then have to make an application to the First-tier Tribunal (Property Chamber) (F-tT) for a ruling that the lease has been breached. The only alternative to this would be if the leaseholder admitted – in practice this means admitted in writing – that he is in breach of the lease. Armed with a ruling from the FtT that the leaseholder is in breach, you can then serve what is known as a notice under s.146 of the Law of Property Act 1925 notifying the leaseholder that he is breach, and requiring him to remedy it by ceasing the business use within a reasonable period. What is reasonable is for the court to decide but 28 days is likely to be sufficient. If at the conclusion of the period the leaseholder is still running a business in breach of the lease, then, and only then, would you be able to take court proceedings to forfeit the lease. If the forfeiture went through, it would result in a ‘windfall’ to your company, as you would, at the end of the day, have a leasehold flat which you could sell again. It is, however, very unlikely that this would actually happen, as, if it went to court, and the leaseholder was still running the business, the most likely outcome is that the judge would make a possession order, and suspend it for a further period to give the leaseholder a last chance to comply (it would also be conditional on the leaseholder paying up the ground rent and service charge which had accrued in the meantime). The judge would also impress upon the leaseholder how important it is to comply with the terms of the lease if he wishes to retain it. You might be able to take this as far as making an application to the FtT for the preliminary ruling without instructing solicitors. It is quite possible, especially if the leaseholder takes legal advice himself, that he will see that you ‘mean business’ and will comply at that stage. But if he does not, then I would suggest that most people would find it difficult to serve the s.146 notice and start forfeiture proceedings without using a solicitor. The usual provision is included in your lease (see clause 2(22) ) to the effect that the costs of the landlord preparing and serving a s.146 notice are to be paid by the leaseholder, even if relief is granted i.e. forfeiture does not eventually take place. The relevant document is of course the original lease: I have a specimen dated 14 July 1967. The more recent lease extends and modifies the lease, but, apart from this, it largely ‘incorporates by reference’ the terms of the old lease. As to whether this business use puts the Company in breach of your insurance policy, I simply do not know. This will depend on the wording of your insurance policy. At one time insurance policies for blocks of flats would be quite insistent on purely residential use. The growth, however, of working from home may mean that many policies take a more easygoing line. You may find, however, that this is restricted to activities which are entirely administrative (e.g. someone working as some kind of consultant), and that the policy is still worded so as to exclude the position where goods are arriving and being dispatched. If you are in breach (or rather have been put in breach) of your insurance policy by the actions of this leaseholder, you should appreciate that this potentially invalidates your policy even if you then try to claim for a loss which has nothing to do with the unauthorised business use. I would suggest that it would be better from your point of view to advise your insurers of the unauthorised business use, making it clear that you will be taking all steps to ensure that it ceases as soon as possible. j If the insurer threatens to void the policy, then you might need to circumvent the rather long-winded procedure set out above, and apply straight to the court for an injunction requiring the leaseholder to cease the business use immediately. This would very clearly require you to instruct a solicitor from the outset. [Submitted April 2017]

Question 26

Brown Water

Accepted Answer

Brown Water Q: Our building is, for the third time, suffering brown hot water from a broken glass lining in a Strebel boiler. The brown colour is particles of rust. On this occasion the brown hot water started three months ago and continues to date. I believe that our management company have mismanaged this situation and as a result seem to be more interested in blaming either the maintenance company or the boiler manufacturer. As owners we have indicated we are happy to pay for a new boiler and seek reimbursement at a later date. As owners, “do tenants have a legal right to replace or repair failing equipment, specifically a hot water boiler, in their building, if the landlord or Management Company fail to do so or are procrastinating in their responsibilities.” Before we commence such action we want to be sure we are acting legally. FPRA Committee Member Mary-Anne Bowring replies: I’m not aware of legal right for tenants to effect repairs. Most leases say that there is no right of offset, and I have stood in tribunal and they have refused to reimburse tenants who paid for things instead of paying service charges and getting the landlord to do so if your manager is at fault then I suggest Section 22 management order for a Court Appointed Manager who then has a higher duty. [Submitted February 2019]

Question 27

Bullying Agents

Accepted Answer

Q: We have constant issues with our management agents, who before the new committee was in place, were copied into all residents’ association correspondence and invited to all meetings. As the new committee were aware that this was a courtesy and not a right to invite the agents, we decided not to invite them amid a number of complaints from residents of the alleged “bullying” attitude of the agent, who pushed through numerous works, that in my opinion, were overpriced and in some cases not fit for purpose, with some of the works having to be redone at a further cost to the residents. Since I bought my property and have been on the committee a year, I have been trying to sort out the mess. We are only achieving this by copying in the freeholder on our emails. He asked us to do this as he has been kept out of the loop. However, the management agents are saying they don’t recognise us and want us to prove we are a residents’ association. We joined FPRA in 2007 and approached the freeholder who confirmed this and for a few years after this the same management agents wrote officially to the RA. However, I have scant evidence of this as most of the previous committee are not around and those who are have not kept the paperwork. We also took the freeholder to tribunal many years ago as an RA. Now suddenly the management agents are asking for copies of minutes. They say they wish to confirm the committee members. On previous advice from the FPRA I redacted all the other information with only election of committee members visible. Now they have contacted the previous chair demanding to know why they have not been invited to our meetings and asking her for the full minutes. I have advised her that I did not agree to this and there are GDPR considerations. They are also now asking us for proof that we are a residents’ association and asking for a copy of your invoice and our constitution. Does the attached correspondence hold up as evidence we are recognised by the freeholder and, secondly, is the contractual relationship between the freeholder and the management agents, so the management agents should go to the freeholder for this information? Hope you can help. I am standing down as the chair this year but don’t want to leave a mess for the incoming chair! FPRA Director Shula Rich replies: The agents are interfering in a bullying way. They have no right to the info they are asking for and no right to invitations to your meetings or minutes. Recognition is a formal matter. If you have no letter stating you are recognised by the freeholder then assume you are not recognised. So my suggestion is: (1) you write to the agents and let them know their queries are not appropriate. (2) please look at our booklet on recognition and send a formal letter to the freeholder. (3) if the agents persist, ask for their complaints procedure and reserve the right to refer the complaint to the ombudsman scheme ( time consuming - but you may want to consider it ) (4) the RICS code of conduct tells agents they should deal with both recognised and unrecognised associations - download free from RICS site. (5) if appropriate for your block consider Right To Manage and appoint your own agents. FPRA can give you more details. You’re doing a great job for your block - without people like you team efforts would not be possible [Submitted February 2020]

Question 28

Buying the Freehold

Accepted Answer

Buying the Freehold Q: We have had several issues in the sale and purchase of 3 of the 14 flats in recent years due to having an absent landlord (dissolved company) and the freehold is held by the Crown. 1. As a result we wish to buy the freehold and all the owners are in agreement. 2. We have just had our AGM and some questions have arisen: Is buying the Freehold actually to our benefit? What are the pros and cons? 3. How do we know if the landlord has disclaimed their interest in the freehold and what does this mean if they have or have not? 4. Are we correct in assuming that if we go ahead with the purchase of the freehold each owner of their flat has a freehold interest as opposed to a leasehold? 5. Somebody has raised the question that it is more difficult to get a mortgage on a freehold flat. Is this the case? 6. We are in the process of setting up an unincorporated residents association. Is this sufficient to apply to the Crown to buy the freehold? Our intention was to apply ourselves and not use a solicitor. Is this feasible? FPRA Director Shula Rich replies: 1. This is possible and a good solution 2. You can either do this or Right to Manage. The second maybe less expensive. I suggest you ask the Crown what the cost will be? If the leases are less than 80 years they may give you a commercial valuation. 3. There is a standard procedure for buying the freehold which is on their web site. You can call them and ask if it’s been disclaimed. 4. No, each owner has both a share in the freehold and remains a leaseholder. 5. Incorrect. This will not be a freehold flat. It will be a flat with a share of freehold. 6.There is very detailed and clear advice on how to buy the freehold. If the price is prohibitive then I suggest you go for Right to Manage. You all need to act as soon as possible. [Submitted June 2019]

Question 29

Buying the Freehold and Parking Problems

Accepted Answer

There are two matters we should value your advice on: 1) We have recently been offered the opportunity to purchase the freehold of the property. This offer came through the agents for the Freeholder. No price has so far been mentioned. I have never heard of a flat owner holding a freehold. I don’t know how it works. Which of the 21 flats would own the land? None of us are particularly enthusiastic about this proposal. We have a 999-year lease, as from 1960, the date the flats were built, and pay a ground rent of just £12.60 per annum. Those with a garage pay an additional £4.87. We do not see any advantage in purchasing the freehold, but I may be missing something. I would like, as Secretary, to be able to give an informed opinion to any flat-owner who asks how they should respond to the offer. 2) We have a big problem with parking. There are garages, but not enough for every flat. We park where we can, on the forecourt, taking care not to block other cars. In other words, there is scarcely enough room for residents’ parking, let alone visitors, and outsiders who choose to use our premises for parking. We already have a notice at the front of the property saying “RESIDENTS PARKING ONLY” but this does not deter. What can we do to deter rogue parking? We have looked into a company who have authority to issue penalty tickets – they patrol on a regular basis – but it would involve unsightly (to my mind) notices everywhere about NO UNAUTHORISED PARKING and information about FINES, to ensure that people have fair warning that patrols are in operation. My own opinion (it is others who have had this idea) is that the law of unexpected consequences could soon kick in. For example, we, the management, could get a lot of aggravation from anyone getting caught – people do not usually pay up quietly. Secondly, I feel that notices plastered everywhere, both at the front and rear of the property (where the garages are), could deter potential buyers and that the value of our properties could fall. FPRA Chairman Bob Smytherman replies: I will do my best to provide some initial thoughts and advice on the two areas you raise. I am not a lawyer, but have been dealing with issues from a practical point of view with over 20 years’ experience as a Director of an RMC of a 46 flat development in Sussex. We have a range of legal and other experts with many years’ experience to provide more detailed responses to members’ queries. On the issue about buying the freehold, it is likely that the Freeholder wants to sell for a variety of reasons to your management company. The individual flats would remain leasehold with a share in the Freehold. This is usually (if the price is right) a good thing to do as your development will be managed by Directors with a direct interest in the running of the estate (hopefully). The fact you have such a long lease at the moment makes the advantages of owning a share of your own freehold a lot less. The ground rent is already low and - unless there are any horrors in your lease - is unlikely to rise drastically over the next few years. I would suggest you send us a copy of your lease so we can ask one of our specialist in 'Collective Enfranchisement' (or buying a share of the freehold to you and me) to have a more considered look about the advantages. Owning a share of the freehold could substantially add to the value of each flat. If you do decide to take advantage of the freeholders offer I would certainly seek an independent valuation to ensure it is a good deal and not take the freeholders word for it. The issue of parking control is my area of expertise by default as my own block suffers a similar issue of too many cars and not enough spaces for all the residents and visitors, as well as living close to a commuter train station. A few years ago FPRA campaigned against the Governments proposal to ban wheel clamping on private land as this provided a very good deterrent to selfish parking Sadly the Government ignored us and introduced the ban leaving the only enforcement option for illegal parking on private land being the issue of parking tickets. These are self-regulated by companies that are members of the British Parking Association. Not ideal, but if you do go down this route I strongly advise ensuring whoever does this for you are members of the BPA. This will involve the adequate number of signage on your development. The criteria for the number and nature of the signs is regulated and will be supplied by the company (sometimes free). The company may also offer free patrols. If you go for the free option, the company is motivated solely by the number of tickets issued. If you pay for signage and regular patrols there will be more emphasis placed on deterrent and informing motorists of the rules than just issuing fines. I would certainly strongly urge against issuing fines yourself as this is both illegal and unenforceable and very confrontational. The specialist companies will always be willing to visit your site provide options and take instructions from your Directors or your agent and it is important to communicate well with all the residents details of any new parking regulations you impose and explain why. As to whether parking enforcement deters buyers , well from experience in my own block the opposite appears to be the case as potential buyers value the fact the management have taken responsibility for and tackling the issue of selfish parking. We have much more background to these issues in our past newsletters on our members’ website. [Submitted April 2016]

Question 30

Can I be a Director?

Accepted Answer

Q: As a company we have directors, but being very small we have only two. One is a director and chair of the company, but is currently seriously ill. She has said she will have to resign her post, which means a new director will have to be elected. The association comprises 14 households, each having one share of the company. Our problem is most of the residents are very elderly and have no interest in becoming involved in running the association. Previously the directors have always been shareholders. My question is, should no householder/shareholder be put forward or be elected, can someone who is not a householder/shareholder become a director of the company? For instance, I do not live in a house within the association’s remit, and I am not a director. I volunteered as secretary as my wife’s very elderly mother lives in one of the houses and is a shareholder. Could someone with a link to a shareholder, or even with no link, become a director? FPRA Hon Consultant Roger Hardwick replies: Your Articles of Association should state who may be appointed as a director, and the process for appointment (eg by another director and/or by the members, at a general meeting). If the Articles contain no restriction, then a non-member may be appointed. If the Articles restrict the appointment of directors to members only, there are a number of options:

1. Continue with one director.

It is possible that the company’s articles specify a minimum number of directors, but even if they do, that should not affect the de facto ability of a director to make decisions on behalf of the company (see below).

2. Ignore the articles and appoint a non-member in any event.

Despite the various rules and restrictions on appointment to and holding of office by directors, the acts undertaken by those occupying the role of director are generally valid even if the appointment or office holding is flawed. See Palmer’s Company Law at para 8.2001.

In addition to the general and statutory rules that apply in relation to corporate contracting (and the acts of unauthorised directors), s.161 of the Companies Act 2006 provides that “[t]he acts of a person acting as a director are valid notwithstanding that it is afterwards discovered” that the appointment or holding of office was defective for various specified reasons. The purpose of s.161 is to protect third parties (both members and outsiders) against a company relying on a person’s lack of entitlement to act as a director in order to avoid obligations. It follows that any acts performed by a director that is not technically entitled to be a director; as regards third parties, are valid.

However, this is a risky option, because the director in question could be liable to the members for acting in breach of the company’s articles (so it is not recommended).

3. Call a general meeting and amend the company’s articles by special resolution, to permit non-member directors. (75 per cent of those present at the meeting would need to vote, assuming the meeting is quorate i.e. has the required minimum members present, which will be stated in the articles). You would need to follow the correct procedure (serving a notice of general meeting which complies with the company’s articles, and which set out the proposed wording of the amendment to the articles).

4. Although this is a more drastic measure, if the company ends up with no directors, it may be that you would wish to apply to the First-tier Tribunal (Property Chamber) to appoint a manager under Part II of the Landlord & Tenant Act 1987.

Question 31

Can individuals or associations apply to the LVT?

Accepted Answer

Can we as an association apply to the LVT or must this be done on an individual basis? The FPRA replies: Only individuals or companies can apply to the LVT. However, an individual can do it as a representative of a residents’ association.

Question 32

Can We Charge?

Accepted Answer

Q: I am a member of the board of directors of the building management company. We perform all duties ourselves and no director is paid. In times gone by when flats were being sold, we would get requests from solicitors, et al, to confirm amount of maintenance to be paid and if any was owned by the sellers. Gradually the information requests have blossomed until we now get questionnaires which ask for a large amount of information and many copies of documents (see a copy of most recent request). Are we legally required to provide all they ask for? If so what would be an appropriate charge to levy? Stuart Merrison of Bishop and Sewell replies: In general terms there is no obligation on a landlord/management company to provide replies to such enquiries, unless there is specific provision in the lease. I have not seen the lease but the member will be able to check this themselves. In reality a landlord/managing agent often does provide replies but at a nominal cost reflecting the administrative burden often in the region of a few hundred pounds. Managing agents are often in addition subject to industry imposed codes of practice. Statute does impose some requirements regarding disclosure of information to a tenant but this is currently limited primarily to certain issues arising out of service charge demands/consultation and insurance and it is likely that the tenant will therefore have already been provided with that information. Again, in general terms the leaseholder should be able to answer the large bulk of any questions that a potential purchaser may ask, save for example level of anticipated future service charge demands of which the landlord/managing agent may have a better a better understanding. [Submitted June 2016]

Question 33

Can we Pay Ourselves?

Accepted Answer

Q: Our owner-managed building in central London consists of 16 flats and is very actively managed by five (otherwise busy) directors, all of whom live in the building. We reckon that by being so hands-on, our service charge is half of what it would be if we employed a managing agent. However — as the FPRA knows only too well — it's hard work. Though some other residents help with other duties (like sorting out the post and arranging window-cleans), not many people seem to want to get involved, and the directors feel under-appreciated and under-valued. Because of the huge amount of work we undertake, our (new) Chair has suggested the directors should consider paying themselves an honorarium. Clause 82 of our Articles of Association states: 'The directors shall be entitled to such remuneration as the company may by ordinary resolution determine and, unless the resolution provides otherwise, the remuneration shall be deemed to accrue from day to day.' We would like to know how common it is for directors of self-managed buildings to pay themselves? What level of remuneration would be considered fair? And is it an appropriate thing to do? We're not, of course, talking about huge sums of money. However, some directors feel that a modest honorarium would be one way of acknowledging the work they put in every month. I'm afraid these days people rarely say thank you! We assume that any sum paid would be taxable. Any advice you could offer would be greatly appreciated. FPRA Director Shula Rich replies: Some Directors do need to be paid - it's not unusual. You have put the request very reasonably and it should be put to the members in this way. BUT (there always is a 'but', isn't there?) I am concerned that once you pay yourselves your position vis-a-vis the lessees will be different. You're not volunteers any more. People can make demands and have legitimate expectations. You may also need professional insurance. Have you considered employing a surveyor, and accountant, a secretary for the work that you can be relieved of? A secretary in particular could do all your routine work and you could pay him or her. I myself am chair of a block of 100 but I make sure things are done right. I don't do them myself. I took the position on condition that we had a secretary four hours a week, and she receives £11-00 an hour. Perhaps that's an idea too? [submitted January 2016]

Question 34

Can We Say No?

Accepted Answer

Can We Say No? Q: A resident has asked if he can have a separate satellite dish on his terrace/balcony. The purpose of this is to bypass our main tv/satellite system so that he can receive Sky Q (an add- on service offered by Sky TV) and in effect be independent of the main system. The company we are contracted to for tv/satellite services who own, supply, maintain and run the system for which we pay an annual fee are offering the Sky Q service to all residents for a one-off connection charge of £300. This has to be paid for individually because not all residents want the extra service, and we therefore cannot take it out of service charges. One resident to date has paid to have this connected through our contractors. The new request is solely so that the resident can avoid paying £300 as Sky have offered this to him free. However, our concern is that if we allow one resident to do this then others may wish to do the same; but not everyone has a terrace, some only have balconies in full view of all. Because satellite dishes have to be positioned to receive the signal and need to be clear of any obstruction, it could mean that some dishes are installed on the wall either front or back of the building. We think this will look unsightly. In addition, we believe our lease has specific conditions re what can be on terraces/balconies. We also voted unanimously as freeholders a year or so back that no new fixtures or additions would be allowed in communal areas, which is recorded in our AGM minutes. We are not in favour of allowing a dish which would have to be fixed to the main wall of the building anywhere. We do not see the need for it as we have a central system which provides all of the tv/satellite to all residents, other than Sky Q, but this is also being offered as a separate add on. The main satellite dish is positioned out of sight on the roof of the building. We have just paid a large amount to have our tv/satellite cables renewed because there was some deterioration and the cost of this renewal and the annual contract charge to the company to maintain the system is part of the service charge which all residents pay. We want to say no to this request and are asking if we are able to do this. FPRA Director Shula Rich replies: In my opinion you are able to say no if its attached to the outside of the building and you have very good reasons - which you have. However, if it is inside the balcony and the balcony is part of the lessees’ demise and it is not attached to the exterior, then you might have more difficulty trying to prevent it. You can see if it’s their demise by looking at the red line in the lease plan. Is it outside or inside the balcony? I hope this helps, and that there is no dispute. I suggest you try the first approach, giving your reasons which I list below: 1 Satellite dishes have to be positioned to receive the signal and need to be clear of any obstruction. It could mean that some dishes are installed on the wall either front or back of the building. This will look unsightly. 2 We also voted unanimously as freeholders in............. that no new fixtures or additions would be allowed in communal areas, which is recorded in our AGM minutes. [Submitted January 2020]

Question 35

Car Park Costs

Accepted Answer

Q: The Residents have been advised by our managing agents that the freeholder would like the 18 leaseholders to pay for the resurfacing of the rear car park, as the surface has deteriorated and has a number of pot holes in it. We have been advised by the managing agents that the lease states that each leaseholder has responsibility for maintaining the rear car park, as each resident has a right of way across the car park and the rubbish bins for the block are located within it, which are emptied on a weekly basis by the local council briefly parking their lorry in the car park. However, for some years the freeholder has operated a commercial business from the rear car park, by letting the car parking space and garages to external people/companies such as the local taxi rank. Due to the heavy usage of the car park by these vehicles coming and going across the car park the surface has deteriorated significantly and in the winter months, flooding occurs in some parts. The managing agent has recently informed us that he is due to present the costs of the quotes he has received to undertake this work to the freeholder and he expects that he will ask the residents to pay the cost of this work (which for a full resurface is £6455 +VAT). The residents object to paying for this work, as they have little benefit from the car park and the freeholder is running a commercial business, presumably gaining income, that could pay for the work. Can you please advise us of what rights we have to challenge and object to this matter and what action we could take to address it. FPRA Hon Consultant Mark Chick replies: We understand that the issue concerns the proposed contributions to the cost of re-surfacing a common car park which in your view has a degree of commercial use which has been attached to it by the freeholder. This intensification of use has in your view resulted in a higher level of wear and tear to the surface of the car park and you wish to query whether it is possible to challenge any proposed contribution to be made by the residents to this. Under the provisions of clause 6 (A)(III) the Landlord is obliged to maintain the forecourt of the building which presumably includes the parking area. The fourth schedule allows the Landlord to recover the costs of its obligations incurred in complying with its obligations under the lease which include the ‘roadway path, forecourt gardens and other common parts of the estate’. It is not clear to us whether the Landlord owns adjacent property as the right to use the common area in question. However, we would recommend that we are instructed to review the freehold title to see whether Deeds reveal any obligations towards the potential for a contribution towards the costs in repair in common areas. The Lease itself contains an obligation to obtain a certificate from the landlord’s managing agents as to the amount of expenditure incurred in maintaining the estate. The managing agents are given the role of experts in determining the apportionment of any charges to be re-charged to the estate. The Lease at Clause 2 (3B) sets out a requirement that if the landlord and tenant cannot agree as to the proper proportion of any charges to be paid that the matter will be determined by the Landlord but that if other parties are unwilling to accept the determination then there is the right to have the matter determined by an independent surveyor. Accordingly, the provisions of this clause should be invoked. Given that the managing agent also has a power in relation to the certification and allocation of expenditure, then you should seek to ascertain their likely views on this prior to them preparing the service charge accounts. We would also suggest that you consider other options which may include non-payment of part of the service charges in the event that the matter cannot be resolved. Question submitted May 2018

Question 36

Carbon Monoxide

Accepted Answer

Q: I understand that, as of October 1 2015, there is a new legislation requirement on carbon monoxide issues. We are a block of 27 flats built in the late 60s, all of which have gas boilers installed. We have smoke alarms in the communal staircases but have not at this time advised our residents to have them in their flats. How will the legislation affect our residents and what steps will we (as the landord) need to take to comply with the new legislation? FPRA Chairman Bob Smytherman replies: This is an issue we have been raising with Government for some time as the new regulations do not apply to the 'common parts' of the flats and only apply to those flats that are sub-let. Therefore there is little you can do as a management company other than to strongly recommend that each flat does install a detector for their own flat. Regrettably your management company has little power in this new Act to ensure each leaseholder does install one unless they are sub-letting to a tenant. If you have any specific safety concerns with any flat then I strongly advise contacting your local fire service. We will continue to lobby Government to include a requirement that gas safety certificates for each individual boiler are shared with management companies like yours. Gas Safety Register can also provide some impartial legal clarity with the regulations for you. See also https://www.gov.uk/government/publications/smoke-and-carbon-monoxide-alarms-explanatory-booklet-for-landlords I would urge you to write to your local MP to raise the concerns with this new regulation.

Question 37

CCTV and data protection

Accepted Answer

I am writing regarding CCTV in our large block of 120 flats in Brighton. There are three issues: 1: We – that’s the freehold company – have CCTV installed at the entrance/ lobby area of our block of flats. Do we need to have a specific policy for this and do we need to display notes to let everyone know that there is CCTV? Or are there other issues we need to implement? The aim of CCTV is for security and the recordings are stored for about 4 weeks; 2: A leaseholder has his installed his own CCTV above the entrance to his flat. We’ve had complaints from other leaseholders about this. Do we need to / can we do something about this? 3: Personal data: We are of course holding data about leaseholders, names and addresses, etc. Does this mean that we need to register with the Office of the Information Commissioner (OIC)? FPRA replies: I must admit that I and other advisers at FPRA find it difficult to deal with queries that involve Data Protection issues. This is partly due to the extreme vagueness of the primary legislation on this. The relevant statute law sets out only general principles. The law in practice is how the OIC interprets these principles. It is also difficult because organisations who would prefer not to disclose information blame it on ‘Data Protection’ when there is no basis for this in fact. Individuals then get the idea that ‘Data Protection’ is much wider than it actually is. Unfortunately, leaseholders who are disgruntled with their RMCs then find that this is a convenient tool with which to cause trouble. Anyway, to deal with your queries: 1. CCTV is covered by the OIC and I can do no better than to refer you to some notes on their website that refer to this. These are to be found at: http://www.ico.gov.uk/home/for_the_public/topic_specific_guides/cctv.aspx You will see that the primary requirement is that you have a notice warning the public of the presence of CCTV. There is little point in my repeating or paraphrasing these requirements. 2. Your second point can, I suspect, be answered without any reference to the legislation on Data Protection. If I have correctly understood your query, the camera that the leaseholder has installed is outside his flat, on top of the door, and is therefore in the hallway of the flats. I would need to see a copy of your lease to give a definitive answer on this, but leases of flats almost always include only the interior of the flat (how much is included in a lease is referred to be lawyers as ‘the extent of the demise’). Those that go into more detail sometimes specify whether the front door of the flat belongs to the leaseholder or to the landlord/RMC. If the doorframe belongs to you as the RMC, then it is a trespass for a leaseholder to attach a camera to something that does not belong to him. Even if the doorframe itself is included in the ‘demise’ to him, I would say that having a camera projecting into the hallway is a trespass to the airspace of the hallway, which belongs to the RMC. Leaseholders who put a hanging basket outside their front door, or who put out a stand for pot plants are almost always technically committing a trespass, and the RMC would be entitled to require them to remove it. Leases sometimes contain express covenants to this effect, but, even if they do not, I would say that placing items on land belonging to someone else – even if it only overhangs it – is an act of trespass, and the landowner is entitled to remove the offending item and to return it to its owner, though I would always recommend that one first writes asking the owner to remove it, and, if that is ignored, the landowner writes to the owner again warning him that he will remove it. If the owner insisted on placing it there again a court would, if appropriate, make an injunction requiring its removal. The only circumstances where this would not apply would be if there were, say, a glass fanlight over the front door of the flat, and the leaseholder had installed the camera so that it was immediately behind the glass. I cannot see that any issue of trespass would arise in this case. If this were the case the position would seem similar to that described on the website of the OIC, where a CCTV camera is on one neighbour’s property, but includes in its survey area the garden of another. Boring a hole through the wall of the flat so that a camera could survey the hallway would generally be a trespass to the landlord’s property (on the basis that the thickness of the wall between a flat and the hallway will almost always belong to the landlord); it might also breach the usual covenant against tampering with the main structure of the building. 3. The advice that FPRA has previously received from the OIC is that ‘not for profit’ organisations are not required to register with them. The typical RMC or leaseholders’ organisation would clearly fall within this category. Not-for-profit organisations are, however, required to comply with the eight principles for fair dealing with information. I shall paste in the relevant part of the OIC’s reply: ‘If the company is able to claim the exemption, they must be aware they must still comply with the eight data protection principles of good practice. Also, they are still obliged to respond in 21 days to a written request to provide information that would have been included in the public register if they had notified.’ The eight principles for fair dealing are to be found on the OIC website. I presume that the principle that not-for profit organisations do not have to register with the OIC overrides the reference at http://www.ico.gov.uk/home/for_the_public/topic_specific_guides/cctv.aspx to organisations using CCTV having to register with them – but this sort of confusion is, in my view, typical of anything to do with the OIC. In the previous case FPRA was trying to establish on behalf of a member organisation whether it was a breach of the Data Protection legislation for an RMC to publish a ‘blacklist’ of debtors. The guidance given by the OIC was so vague that it was difficult to establish whether this would be a breach of the legislation or not. On balance I concluded that it was probably not, especially if leaseholders were forewarned that this would happen. I suspect that if you want any further details on CCTV or Data Protection, it would be better if you raised your query direct with them. They do reply eventually, though there is usually quite a delay. As I said, in most cases the answer to any problem will depend on how the OIC interprets the ‘eight principles of fair dealing’. If you do raise a query with them, it would be useful if you would forward a copy of your query and our reply to the FPRA Office, so that we have them for future reference. If you wanted a more definitive answer to point 2 above, I would need to see a complete copy of your lease, preferably including any plan. Finally, I should add that FPRA only advises member associations – we cannot and do not act for them. Opinions and statements offered orally and in writing are given free of charge and in good faith and as such are offered without legal responsibility on the part either of the maker or of FPRA Ltd. Yours sincerely Nicholas T M Roberts, BA, LLM, PhD Legal Adviser, FPRA Ltd.

Question 38

CCTV cameras

Accepted Answer

Q: Our building has the facility of CCTV monitoring and recording of the two main reception areas and the car park. A request has been received from one of the residential Leaseholders to have the CCTV cameras routed to his apartment. Under the data protection act I have refused but he is being quite insistent, even threatening legal action. Please could I have some legal guidance in this matter? FPRA Legal Adviser Nicholas Roberts replies: The short answer is that I cannot see any legal basis whatsoever for your residential leaseholder to insist on this. Essentially the leaseholder would only be able to insist on this if there were something in the lease which conferred this right – and I have never seen it included in all the leases that I have looked through. The only possible basis for implying something in to a lease would be if it were necessary to give business efficacy to the lease – and that is certainly not the case here. I should be interested to know on what conceivable basis the leaseholder claims to be entitled to this right. [Submitted May 2017]

Question 39

Chair Lift in the Communal Stairway

Accepted Answer

An owner living on the first floor has asked for permission to install, at her expense, a chair lift in the communal stairway. Although we are seeking the Fire Officers advice we are concerned that there are also many other issues involved both now and potentially. For example insurance, joyriding, re-instatement, further access changes if the health condition worsens (access ramps?), storage of wheelchairs, etc. We wonder whether FPRA have covered the subject in previous Newsletters or can point us in the direction of obtaining further advice on both practical and legal implications. The FPRA responds: Thank you for your query to the FPRA about such an important issue which we have indeed written and lobbied about over a number of years. Back in October 2010 the Government brought forward the Equalities Act 2010 to replace the various pieces of discrimination legislation. The area of the act affecting ‘common parts’ of blocks of flats was expected about 3 years ago and we are still waiting but I will do my best to set out our current advice. As you may be aware from our web-site and newsletters the FPRA were involved in the Discrimination Law Review and shared many of your concerns forcibly at the Review Group on Common Parts to the last Government. In addition The Federation of Private Residents’ Associations (FPRA) made a number of recommendations to the Office for Disability Issues concerning the proposals to legislate for disability-related improvements to common parts of let residential premises contained within the Single Equality Act. Since the formation of the Coalition Government we have written again to the Equalities Minister for statutory guidance on the issue as yet no plans to implement this section of the Act. I will therefore do my best to advise based on practical experiences and understanding of the law as it currently stands although I should point out I am not a solicitor and any technical issues relating to your block will need to be referred to our Legal Advisor. The consultation paper “Discrimination Law Review – A Framework for Fairness: was the most relevant to us and Chapter 13 of the review on which the majority of our comments were made as this concerns the new legislative framework concerning the common parts of let residential premises. As yet none of these have been tested in the courts so my remarks are my own opinions having considered the circumstances you set out. With regards the interior alterations I would suggest that this may well be a matter for you as an association having responsibility for the ‘Common Parts’ if the proposed changes are of a structural nature I would suggest it is not unreasonable to request that the proposed changes are discussed and agreed in writing with the Local Authority Building Control and your Fire and Rescue Service. I think the main issue you may want to consider will be who responsible for maintenance , insurance and indeed ownership of any new improvement as this will have future implications for the block, for instance what happens if the lessee moves will the alteration be moved and at who’s cost? What if another resident has been using it if it is no longer in place will you be then responsible for providing a new one? The next issue is probably the most contentious and difficult to advise having not yet seen the lease, but it would seem to me that it is unreasonable to request such an ‘improvement’ as most leases would normally state something like this. ‘Not to make any alteration in the building and /or the demised premises.’ It is this area of the law that we really do need some clarity on as the lessee may well argue ‘discrimination’ as the lessee may need such an improvement to enjoy the building in the same way as other lessees. To further complicate matters there may well be other considerations with regards to Planning permissions especially if this is a listed building or a conservation area or indeed whether other such alterations have been made to your block before with or without planning consent. I would suggest asking the lessee to submit written detailed plans to you for ‘formal’ consideration and confirm they are willing to meet all the costs including maintenance, insurance as well as the stair lift itself and evidence that the installation will not have a detrimental impact on the amenity for other lessees and given this being in the ‘common parts’ ownership should be with yourselves as Landlord and not with the lessee ( I suspect this will be contentious as they will be paying for the lift, however you will need to have full responsibility for this as it’s in the common areas) As to whether this is a ‘reasonable’ alteration for the management company to consider will be a matter for you having considered all the relevant advice from the Fire Service , Council etc. but it is difficult to see how a stair lift in the common stair well used by others would not have a detrimental impact on the ‘means of escape’ of other lessees which you have a duty in law to maintain. I hope this gives you some guidance how to respond to this request and would welcome your feedback on what you decide as this would be a good ‘case study’ for our newsletter and to highlight the very practical differences with the changes to the disability legislation and often conflicting demands of disabled residents with different disability needs (for example visibility-related alterations may not be compatible with mobility-related alterations) and the need to comply with fire safety and other regulations which apply to common parts and control matters such as emergency exit routes (Regulatory Reform (Fire Safety) Order 2005) and the actual practicalities of installing and maintaining the disability-related alteration.

Question 40

Changes to Windows and Balconies

Accepted Answer

Q: Since taking over the day to day management of our block from agents we have become increasingly aware of some of the finer points of the lease between the freeholder and ourselves in respect of the ’common’ areas and of the lease between the freeholder and individual apartment lessees, which of course includes ourselves. Our specific query relates to the fact that some lessees have at some time in the past, in contravention of their lease with the freeholder, and a deed of covenant with this company, made structural changes to their apartments, particularly in respect of windows and balcony frontages, for which they have not sought the approvals required of the freeholder, this company or the planning authorities. As the changes have been for the better generally and have not been commented on by planners visiting for other projects, or the freeholder’s staff, then it has seemed best to let sleeping dogs lie. We wonder however what liability we have as directors for work carried out by individual lessees’ contractors in respect of poor workmanship having health and safety implications. For example, should a person fall through a now insecure balcony rail, could we be held liable? Also, do we assume responsibility for parts of the structure ‘illegally’ changed as it has now de facto become part of the building’s structure, the maintenance of which is our responsibility? Finally, what should be our actions, if any, in addressing such past changes and any planned changes that we might become aware of? FPRA Committee Member Shaun O Sullivan replies: Although I am not a lawyer, my reading of the Deed of Covenant between the 'Service Company’ and the Lessee places, in accordance with the covenant, an obligation to ‘maintain, repair, redecorate and renew the………structure…….’ In defining more closely the 'structure’ it is stated to include the ‘external walls’ which are, again, more closely defined and are stated to include ‘all windows and balconies’ but not any glass contained therein which, in accordance with the First Schedule, appears to form part of that which has been demised and as such the responsibility of the lessee. I would thus see maintenance and any replacement of the windows and balconies as being the responsibility of the Service Company. You don’t say what programme the Service Company - or, indeed, your former agent(s) - might have published for replacing windows and balconies over time, but I am assuming that, in view of the age of the block (40 years) and the materials which might have been used at the time, that, in meeting its obligations under the terms of this covenant, most windows and balconies would, by now, have been replaced by the Service Company or its agent(s) and probably (in view of the apparent absence of a reserve fund facility within the lease) on the basis of a rolling programme and funded through the Service Charge. And I would assume that windows and balconies replaced in this way would have been undertaken on the basis of achieving as close a design match to the original as possible or in accordance with any design agreed with the freeholder (and hopefully made known to lessees) and in accordance with building regulations. [Submitted June 2017]

Question 41

Changing Managing Agents

Accepted Answer

Q: Our residents have recently been issued a Section 20 notice re intent to change managing agents (we have had the same one for several decades). We have fought for better services and value for money under our previous managing agents and want to make maximum use of this opportunity to improve the situation. We have met with the freeholder’s agent to discuss the situation. We would like to check on the rights of a RA in this situation and the process involved and would appreciate advice from FPRA. In particular we foresee a discussion about caretaking services. At present we pay highly for a resident caretaker and many residents would like to move to a contracted service. Any advice on this would be welcome. FPRA Director Shula Rich replies: This is an extremely wise decision on your part. Basically as with all S 20s you have no actual rights to require anything - just to make observations which the freeholder should take into account in making their decision. An S20 for the appointment of a managing agent means they intend the contract to be for longer than a year. If they did not there would be no need for an S.20 no matter how much the agent is being paid. An RA has the right to be consulted on the appointment every 4 years - but there is no set form or format. My advice is: (1) Are you in favour of a long term contract? if not, say so now. (2) Have they mentioned other contenders for the position and their costs and service? If not, why not? I have written an article on QLTA's - please see my web site www.shularich.co.uk - free and useful downloads (3) Any other comments you make should be reported and replied to - it is a good opportunity as you say. I think the most important thing to consider is if you want this to be long term or not. Most Agents have an annual contract to avoid the consultation. Whatever you say should be considered and formally responded to - but need not be acted on. [Submitted July 2016]

Question 42

Changing Managing Agents

Accepted Answer

Q: Our residents have recently been issued a Section 20 notice re intent to change managing agents (we have had the same managing agent for several decades). We have fought for better services and value for money under the current agents and want to make maximum use of this opportunity to improve the situation. We have met with the freeholder’s agent to discuss the situation. We would like to check on the rights of a RA in this situation and the process involved and would appreciate advice from FPRA. In particular we foresee a discussion about caretaking services. At present we pay highly for a resident caretaker and many residents would like to move to a contracted service. Any advice on this would be welcome. FPRA Director Shula Rich replies: This is an extremely wise decision on your part. Basically, as with all S20s, you have no actual rights to require anything - just to make observations which the freeholder should take into account in making their decision. An S20 for the appointment of a managing agent means they intend the contract to be for longer than a year. If they did not there would be no need for an S20 no matter how much the agent is being paid. An RA has the right to be consulted on the appointment every four years - but there is no set form or format. My advice is: (1) Are you in favour of a long term contract? If not, say so now. (2) Have they mentioned other contenders for the position and their costs and service? If not, why not? I have written an article on QLTA's - please see my web site www.shularich.co.uk - free and useful downloads (3) Any other comments you make should be reported and replied to - it is a good opportunity, as you say. I think the most important thing to consider is if you want this to be long term or not. Most agents have an annual contract to avoid the consultation. Whatever you say should be considered and formally responded to - but need not be acted on. [Submitted July 2016]

Question 43

Changing Managing Agents

Accepted Answer

Q: The management of our 24 flats have never been very responsive and they have been taken over by a much larger, remote company. We find it difficult to get them to respond to us and they are constantly tardy in paying our gardener, cleaners and window cleaner. We would like to employ local management and have interviewed a possible company. Last time we wanted to change management the freeholder would not agree. Has the freeholder the power or right to stop us changing our managing agent? FPRA Director Shula Rich replies: Although this is serious for the residents the reply is very short I'm afraid. Lessees have no right to appoint a managing agent they choose because the building belongs to the freeholder. We only have the exclusive right to live in the property for the years left on the lease. Right to Manage would give you the right without ownership - please come back to us if it's of interest - or if you had a lessees' management company written into the lease. You can take any issues up with the property ombudsman's scheme that they are registered with once you've been through the agent's complaints procedure. There is an obligation for a freeholder to consult a recognised residents association on the appointment of a managing agent every 4 years, but only to 'consult' not to change to their preference As a courtesy to the residents, there is no reason why the freeholder could not look at their choice of agent - but there is no obligation. [Submitted February 2017]

Question 44

Charging for Info

Accepted Answer

Q: We manage the communal areas for the 14 houses included in the association. Over the years we have had several houses change ownership and are asked various questions by solicitors involved in the sales. We have always answered the questions and furnished relevant paperwork where required free of charge. But on the latest occasion, in addition to the normal questions, for the first time we have been asked to supply a copy of our Memorandum and Articles of Association. Is this a “normal” request, and as the Articles are some 16 pages, should we be charging for this information, and if so, how much? FPRA Committee Member Colin Cohen replies: They are entitled to this information, although, in the case of the Memorandum and Articles, these can usually be downloaded from Companies House free. However, I would certainly suggest you do charge them a fee for any management information for a conveyance, which certainly is not unreasonable. The amount to be charged obviously is discretionary. If a manager is appointed, as a business then they will charge more, either a set minimum amount for the time and costs or by a set fee, but a residents’ company may want to charge just a nominal fee. [Submitted September 2016]

Question 45

Charging in Advance

Accepted Answer

Q: We are going to make some changes to our Memorandum and Articles of Association. We wish to put in place monthly payments and setting Service Charges to be paid in advance, is this something that you can help with. We would like some help with the wording and where we need to make the changes within the Articles. FPRA Vice Chairman Richard Williams replies I do not think that there is any need for the members to alter their Articles of Association, unless they are minded to do a wholesale modernisation. The Memorandum of Association confirms that the company’s job is to manage the property, and the banking or other arrangements for payment of service charges under the lease is part of the management. However, what does need looking at is the lease. The lease should say how service charges should be calculated and when they are payable, and this can only be changed by agreement with each lessee. My impression is that our copy of the lease is defective, in particular in clause 1, I think there should be two or three lines spelling out when and how the ground rent, and perhaps the service charge are paid. I think it is worth asking for a copy of a signed lease, and then passing it over to one of our landlord and tenant lawyers. I have to say that while there is s schedule saying what the service charge covers I can’t see anything that actually says when it has to be paid, or authorising payment in advance. As I say, our copy seems to be defective, but if the signed leases are defective it may be necessary to get them corrected by the Lands Tribunal, who might be sympathetic to inserting a clause allowing service charges to be paid in advance. [Submitted June 2016]

Question 46

Cleaning Contract

Accepted Answer

Q: We are preparing to re-let our cleaning contract and our managing agents have said that they believe that we do not need to undertake a Section 20 consultation even though the contract would breach the £100.00 in a year long term agreement threshold for one of our lessees, whose share of maintenance expenses, for good reasons, is significantly higher than others'. Their basis for this is past guidance from ARMA, of which they are members. However, they have been unable to locate it, which has increased my scepticism. Could you confirm or correct my conclusion that a contract for cleaning that would cost any lessee more than £100.00 a year would not be subject to Section 20 consultation if the contract were for less than a year and this could be achieved without annual re-tendering if the contract had a suitable provision for termination by either party (eg at three months' written notice) and was let for an initial period of up to a year and then would be continued from year to year if neither party terminated. If this is correct, I would welcome any advice on how to word the relevant provisions. I assume this would apply also to other non-works services including gardening and management. I should add that we would keep our lessees informed anyway, as we always do, but not within the rigid process imposed by Section 20, which seems disproportionate for something like cleaning, which anyway costs well under the threshold for most of our lessees. FPRA Hon Consultant Yashmin Mistry replies: A qualifying long term agreement (QLTA) is an agreement entered into by or on behalf of the landlord for a term of more than 12 months. If the landlord seeks to recover more than £100 from any tenant in any accounting period, then the consultation provisions are engaged. In identifying whether an agreement is a QLTA the correct approach is:

Is whether it is an agreement
Made by or on behalf of the landlord
For a term of more than 12 months

If an agreement fails to specify its duration, it is a question of fact for the tribunal whether it is an agreement for a term of more than 12 months. Provision for termination even within the 12 months does not assist in determining the duration of the contract in these circumstances. By contrast, an agreement for a fixed term of 12 months or less is not a qualifying long term agreement notwithstanding the possibility that it could continue for more than 12 months. [Submitted July 2016]

Question 47

Cleaning Services

Accepted Answer

Q: We have an interesting problem in need of a potentially creative solution and are hoping that the FPRA might have some ideas / experience. Our landlord is a hotel company who operates a franchise in the lower six floors our building with our residential portion occupying 64 apartments above on long leases. The leasehold portion is managed by a local company who has employed our porters since they took over approx. 10 years ago. Porters are responsible for general duties around the building including cleaning, refuse collection, reporting of incidents, manning the residents’ reception and so forth. One porter passed away a few years ago – we now have a contract cleaning company collecting the refuse as cover – and our remaining one is due to retire at the end of this year. The management company have stated that they can’t be responsible for employing new porters as they don’t come under their remit. The hotel company can’t because they wouldn’t be working for the hotel and we don’t qualify for RTM so can’t employ anyone. We’re looking to the FPRA for any advice on a solution. At the moment, the management company have said that they will contract via a service company. The issue would be that after nearly 50 years of personal service, we would lose any guarantee of regular, consistent staff. This has brought up another tangential point: it would be useful if there was a group within the FPRA for leaseholders in similar situations where they are leaseholders sharing with a business to exchange advice etc. FPRA Hon Consultant Yashmin Mistry replies: From looking at the leases we have in the office, it seems the landlord is correct in that there is no obligation under the lease for the landlord to provide a porter service. It follows therefore that there is no provision in the lease for porter’s costs to be put through the service charge either. In terms of moving forward, if 100 per cent of the residential tenants want to retain the services of a porter, you may all want to get together yourselves and draw up a formal agreement between each of the flat owners (outside the lease terms and the service charge provisions) for the porterage service and the costs of the porter are not put through the service charge account. Such a proposal will need to be considered in some detail and legal advice should almost certainly be obtained, not least because there are some serious factors that need to be thought though if this agreement were to work in practice. Leaving aside the issue of collecting funds outside the service charge lease terms, what happens if a flat refuses to pay, what about the employment right issues for the porter etc? These are all major considerations that will need to be taken into account. The alternatively is to approach the landlord to see if they would be willing to enter into a deed of variation for all the flat leases whereby the lease is amendment to oblige the landlord to provide a porterage service and the costs of such service are put through the service charge? Again, you would need all the flats on board and there would be no guarantee the landlord would agree to such amendments in the lease. Otherwise you are left with engaging a managing agents to undertake the maintenance obligations under the lease terms. [SubmittedOctober 2016]

Question 48

Clearing Snow

Accepted Answer

Clearing Snow Q: 1. We have several pathways and outdoor stairs in the communal gardens. We employ no staff. We do not grit pathways and stairs in the winter. If someone slipped could we the Directors be liable for any injury? If so we employ no staff. Should we have a grit bin or two? We have five blocks, 22 flats in total. 2. Should we paint the edges of stairs to make them more visible? We have no lights on the estate but the estate is lit with street lighting apart from two garage courtyards. FPRA Committee Member Mary-Anne Bowring replies: 1. YES AND NO Here is an advice note - that Ringley Property Managers use internally Clearing snow and ice from pavements yourself There's no law stopping you from clearing snow and ice on the pavement outside your home or from public spaces. It's unlikely you'll be sued or held legally responsible for any injuries on the path if you have cleared it carefully. Follow the snow code when clearing snow and ice safely. The snow code - tips on clearing snow and ice from pavements or public spaces Prevent slips Pay extra attention to clear snow and ice from steps and steep pathways - you might need to use more salt on these areas. If you clear snow and ice yourself, be careful - don’t make the pathways more dangerous by causing them to refreeze. But don’t be put off clearing paths because you’re afraid someone will get injured. Remember, people walking on snow and ice have responsibility to be careful themselves. Follow the advice below to make sure you clear the pathway safely and effectively. Clear the snow or ice early in the day It’s easier to move fresh, loose snow rather than hard snow that has packed together from people walking on it. So if possible, start removing the snow and ice in the morning. If you remove the top layer of snow in the morning, any sunshine during the day will help melt any ice beneath. You can then cover the path with salt before nightfall to stop it refreezing overnight. Use salt or sand - not water If you use water to melt the snow, it may refreeze and turn to black ice. Black ice increases the risk of injuries as it is invisible and very slippery. You can prevent black ice by spreading some salt on the area you have cleared. You can use ordinary table or dishwasher salt - a tablespoon for each square metre you clear should work. Don’t use the salt found in salting bins - this will be needed to keep the roads clear. Be careful not to spread salt on plants or grass as it may cause them damage. If you don’t have enough salt, you can also use sand or ash. These won’t stop the path icing over as well as salt, but will provide good grip under foot. Take care where you move the snow When you’re shovelling snow, take care where you put it so it doesn’t block people’s paths or drains. Make sure you make a path down the middle of the area to be cleared first, so you have a clear surface to walk on. Then shovel the snow from the centre of the path to the sides. Offer to clear your neighbours’ paths If your neighbour will have difficulty getting in and out of their home, offer to clear snow and ice around their property as well. Check that any elderly or disabled neighbours are alright in the cold weather. If you’re worried about them, contact your local council. • Find your local council (contacts section) Road gritting and snow clearance by your council Your local council will add grit to roads and pavements in your area and clear snow in winter. For information about where and when your council is gritting local roads, check its website. More useful tips Health and Safety Minister Lord Freud has since emphasized the need for a common sense approach to clearing snow from footpaths and pavements; there are no health and safety regulations that prevent people from clearing snow at their home, their business or at their neighbours’ homes. Lord Freud said: “People need to be aware that they will not be reprimanded for doing a good deed by clearing ice and snow. The truth is very simple: you can clear ice and snow from footpaths and pavements but always be careful that you don’t put yourself in danger. Countless lives have been saved and injuries prevented because of robust health and safety practices. But bogus excuses give real safety laws a bad name and stop people from taking action”. Chair of the Health and Safety Executive Judith Hackitt said: “Anyone can clear ice and snow from public spaces, so don’t be put off because you’re afraid someone will get injured. Remember, people walking on snow and ice have a responsibility to themselves to be careful. • Find out about road gritting from your local council • Find out about your council's snow clearing service

o Staying warm in winter (home and community section) o Safety in extreme weather (travel and transport section) o Cold Weather Payment (money, tax and benefits section) o Get local information on services disrupted by severe weather o UK severe weather warnings o The Health & Safety Executive (HSE) encourages a common sense approach. For more information on gritting and dealing with winter conditions generally, see: http://www.hse.gov.uk/logistics/slips-trips-bad-weather.htm o Assess the development’s risks and put a simple system in place. o Develop, as a result of the health and safety risk assessment, procedures for snow/ice clearance and/or gritting, always recognising that this cannot deliver 100% protection and that in some localities, it may be difficult or impossible to make effective arrangements. Options are to arrange contractors, provide grit for residents to use, do nothing. o If you decide to grit or your client wants it, identify essential paved areas to be cleared (where clearance can be achieved) o Use best endeavours to protect staff, residents, contractors and other visitors from possible injury arising from attempts to clear snow/ice or to grit pathways. o Advise staff and residents of any local arrangements. o Obtain and maintain suitable safety warning notices. o Ensure that appropriate safety notices are clearly displayed on all normal exit routes (or those identified through the risk assessment) o Ensure that all safety notices are removed when conditions improve. o Employ contractors to clear snow/ice and spread grit or sand, provided this can be achieved in a cost effective manner and your client wants it. o Develop and maintain emergency contact listing for contractors on the approved list. o Ensure that adequate stocks of salt and grit are available and located within a suitable storage container. o Provide some grit bins – there is no reason why residents cannot help by spreading grit around the main door areas etc. - they should not be prevented from helping for fear of being sued. o Do everything that is reasonable-from using residents, cleaners, gardeners etc. to help when on site.

• Health and safety legislation is designed to protect people where there is a genuine danger that someone could be killed or seriously injured, not to stop people from getting on with their lives and certainly not to stop people from reducing the risk for themselves and others by clearing snow and ice.” For more information see https://www.gov.uk/clear-snow-road-path-cycleway 2. Should we paint the edges of stairs to make them more visible? We have no lights on the estate but the estate is lit with street lighting apart from 2 garage courtyards. this would be a good idea [Submitted January 2019]

Question 49

Cockroaches!

Accepted Answer

Q: We have been informed by a resident (who rents the flat from a relation) that she has seen cockroaches in her flat! To say I was surprised would be an understatement as the tenants are extremely clean and have a cleaner weekly. As the only previous insect problem has been the odd ant ingress in ground floor garden flats, I'm at a loss as to what our responsibility is in this case. The majority of problems within a flat are normally the owner’s responsibility, however this tenant gives the impression that the association has the onus. I advised her to get confirmation that they are cockroaches and to have a word with the council for advice. I was informed today by a committee member that the council visited the flat this morning, so any advice you can offer as to what our obligation, if any, might be, before I hear from the council would be much appreciated. FPRA Chairman Bob Smytherman replies: I reply from a practical point of view rather than a legal one. With regards to pest control in flats, it's likely that they have got in from the outside of the flat and therefore it's likely that the association will have at least some level of responsibility. You are quite right getting your local council pest control officer to investigate and establish what the pest is, where it has come from, and how to prevent this infestation spreading to other flats. In my block we usually carry out the initial investigation and meet the cost from the service charge, if applicable. Not all councils charge for this. Once we have received their report it is usually clear where the responsibility for the removal lies and how to prevent further infestation. [Submitted February 2017]

Question 50

Collecting Service Charges

Accepted Answer

Q: Do you have a template/draft letter as we want to write to the mortgage company of a leaseholder who has not paid their service charges and has failed to answer any correspondence on the matter? FPRA Committee Member Colin Cohen replies: There is no draft set letter to mortgage lenders, just a normal letter explaining who is the landlord or management company/residents’ association, with copy demands telling them of the arrears. Otherwise it may be worth appointing independent debt collectors. There are firms who specialise in this and do not charge the company but the defaulting lessee. [Submitted September 2016]

Question 51

Collection Fees

Accepted Answer

Collection Fees Q: Our Managing Agents have just advised leaseholders that, as they are no longer allowed to charge credit cards fees to individuals, following 2017 Payment Services Legislation, they will now put all credit card charges onto the service charge under a line named 'Collection Fees', in effect, requiring leaseholders to pay their neighbour's credit card fees. The agents advise that they have taken independent legal advice and that they can do this and call it Collection Fees. We countered that legislation states they are no longer allowed to charge people for paying using credit cards, and that even if they are charged themselves if someone uses a credit card, they cannot charge that cost forward. It is not a collection fee. Do you have anything on this matter? FPRA Committee Member Shaun O’Sullivan replies: It is true that the 2017 Payment Services legislation prevented retailers from applying surcharges for users of credit cards. Nevertheless, your managing agent will still be charged fees by the credit card company for every payment accepted by credit card and these charges form part of the managing agent’s overheads which he is entitled to recover for the services provided via the service charge. It is not at all unusual for lessees who might all be bound by the same level of service charge to benefit unevenly. For example, ground floor lessees will generally contribute to the same degree as upper floor lessees in relation to the maintenance of lifts even though they may never use them. This is one of the many imperfections of leasehold life. The only way to avoid these costs is to petition the freeholder to require the managing agents not to accept any payments by credit card (a situation not at all unusual in many developments). Of course, this is unlikely to find favour among those of your neighbours who have become accustomed to paying in this way. [Submitted April 2019]

Question 52

Committee Meetings

Accepted Answer

Q: I'd be grateful if you could confirm the requirements re meetings for our `limited company without portfolio`. We have our AGM which is a formal meeting and minuted. But are we also expected to have `directors' meetings` of a similar formal nature? We have had them thus far on a six monthly basis but with some directors living mostly abroad it's becoming a little difficult to plan in advance and a more informal `chat` about things rather than formal directors' meetings would suit us better. Obviously the AGM 's will continue as at present. FPRA Committee Member Shaun O’Sullivan replies: Although I am not a lawyer, my understanding is that there is now no legal requirement for private limited companies to hold board meetings unless required to do so by the Articles of Association of the company. So, although you should refer to your Articles of Association for guidance in this regard, I doubt whether there is such a requirement. However, should you decide to hold board meetings, it is my understanding that any decision must be recorded and the record kept for at least 10 years. In my block we have long dispensed with board meetings and manage business by e-mail with the secretary recording significant decisions (such as the agreed level of Service Charge or the selection of a decorator after a Section 20 process) in a Minute Book. Although you appear to wish to retain your AGM, since the 2006 Act came into force it is not now necessary for small private companies to hold an AGM unless required to do so by the articles. Even then it is possible to resolve not to hold an AGM and to lodge an amendment to the articles with Companies House within 15 days of the resolution being passed and with the formal business of the AGM (Report of Directors and laying down of accounts) being dealt with by other means (eg email). [Submitted June 2016]

Question 53

Commonhold

Accepted Answer

Commonhold Q: Last year FPRA provided us with opinions on various resolutions submitted to our AGM. which were very helpful. We are now approaching this year’s AGM. While we have received no resolutions to date, the rumour mill now suggests the same group are plotting again. Given the Australian connection of one of our owners we are surmising that commonhold is a likely topic, particularly as the couple concerned already have a dormant management company. We are a retirement village owned and managed by a company who also have other similar villages. While commonhold can be presented as allowing us to cast off the shackles of leasehold and become masters of our own destiny and fate by taking over the estate is this something we collectively wish to embark on at this stage of our lives? FPRA Committee Member Bob Slee replies The LEASE organisation has available a very comprehensive on-line guide on Commonhold which you can access following this link https://www.lease-advice.org/advice-guide/commonhold/ . You should also be aware that the Government is currently consulting on the future of leasehold and some revitalisation of the concept of commonhold (which has not thus far taken off to any marked degree in the UK) might well arise. Government reaction to that consultation, let alone consequent legislation, is likely to be years rather than months away. Without wishing to prejudge what might eventually emerge, there is a view that a polished-up concept of commonhold might well provide a suitable basis for multiple occupancy developments in the future – but it is not necessarily the panacea to shortcomings in existing leasehold developments. An alternative proposition, already available, is enfranchisement, ie common acquisition of the freehold by the lessees. That is the situation in the block that I am involved in managing and we have made it work very well and to our advantage. I can understand the concern about availability of sufficient interest to manage such a proposition, especially in a retirement block, but it would be quite usual for enfranchised companies to appoint managing agents to undertake practical management of the property. The difference of course would be that the agents would be appointed and directed by representatives of leaseholders and not a remote and possibly disinterested freeholder. [Submitted July 2019]

Question 54

Company nameplates

Accepted Answer

The registered address of our freehold company is my own personal address. Its hard enough running a block of flats without having to have the Company’s nameplate on my front door. Is this really necessary? The FPRA replies: At one time it was necessary to have a Company nameplate, but the 2006 Company Act, which came into force on 1 October 2008, no longer requires a nameplate when the ‘place is primarily used for living accommodation (for example the director’s address).’

Question 55

Compensation for interruption of Water Supply

Accepted Answer

Q: I write concerning the interruption to our water supply due to a burst main and subsequent work by Southern Water. This occurred in November; the water supply was off for about 30 hours and a further number of hours while the building's drained system got back up to normal. During that time our contractors received calls from residents with problems in their supply following the emergency. I believe the regulator specifies an amount of £20 per household which is ‘automatically’ paid in compensation. We are billed directly for all residences and commercial units in our buildings, based on consumption, so residents will not receive this directly. They pay for their water through their flat's proportion of the service charge An enquiry to Southern Water resulted in advice to claim for this incident through our insurance company. However this would increase our premiums and would involve an excess payment. We are thinking of going ahead with an invoice to Southern Water for the compensation. Is there anything we need to know before proceeding? Any advice you can offer would be welcome. We owe it to residents and business owners in the block to get as much compensation as possible for the very real inconvenience suffered. [question answered January 2022] Nick Roberts, FPRA Legal advisor replied: A: Your query raises a rather interesting point which I have not come across previously. As I understand what you say, Southern Water render one bill for water and sewerage charges to Freeholders Ltd and you then re-bill the residential and commercial leaseholders via the service charge. This is an arrangement which is commonly encountered with blocks of flats, but it does raise a rather difficult issue: are there 105 residential customers (plus some commercial customers) in the block – or does Freeholders Ltd constitute a single commercial customer (or, possibly, a single residential customer)? This sort of problem does arise in a number of contexts within blocks of flats. For example, the electric companies have to observe a Code of Practice before they disconnect domestic customers: but I have heard of some of FPRA members finding that electricity suppliers say that the supply of electricity to the common parts of a block of flats is a commercial, and not a domestic supply. This can also affect the tariffs that are offered. I appreciate that the position with the water supply to Freeholders Ltd is rather different, as Southern Water are likely to be working on the basis that there is a single supply to the whole building: but I hope that you take my point. The basic Standards of Service and Summary of Payment Amounts administered by OFWAT seem to be set out here: Standards of service - Ofwat. These are described in rather more detail here: The-guaranteed-standards-scheme-GSS-summary-of-standards-and-conditions.pdf (ofwat.gov.uk), but neither of these documents seems to offer a definitive answer to the question as to whether there is one, or multiple customers, involved in your case. The fact that the first of these documents refers to tenants being treated as if they were customers seemed to be encouraging. It suggested to me that individuals other than those who ‘had their name on the bill’ might be entitled to claim compensation, as individual residential customers. It appeared to indicate that the ‘renting tenants’ might be entitled to compensation. If so, then the argument could be used that as leaseholders are, in law, also ‘tenants’, then they would be entitled to claim as individuals. However, I think it is important to appreciate that the Standards of Service as set out by OFWAT do not have the force of law. The actual law which OFWAT is administering is set out in Regulations made by the Secretary of State: The Water Supply and Sewerage Services (Customer Service Standards) Regulations 2008, SI 2008/594. Regulation 4 of The Water Supply and Sewerage Services (Customer Service Standards) Regulations 2008 (legislation.gov.uk) does not actually extend the term ‘customer’ to include ‘tenant’ but instead refers to an ‘occupier’ being entitled to claim. But it goes on to say that ‘customer’ includes ‘an occupier of premises whose supply of water or sewerage services is the subject of a separate charge for which a person other than the occupier is liable’. This would indicate to me that, if a freeholder or leaseholder lets out a flat, and pays the water rates on it, then their renting tenant would be able to claim compensation, as if the tenant were himself or herself the customer. But I cannot see how the leaseholders (or their tenants) can rely on this extended definition of ‘customer’ as neither leaseholders, nor their tenants, are paying a ‘separate charge’ for water and sewerage services. A court would surely have to say that a ‘separate charge’ must mean ‘a separate charge charged by the water company’: I cannot see that the fact that leaseholders pay a separate charge as part of their service charge would be decisive here. From the perspective of Southern Water, no separate charge is being made. Having had a look through the Regulations, my view is that they are drafted on the basis that, as a matter of strict law, compensation is payable in respect of each property that pays a separate charge to the water company. I appreciate that that is not what you want to hear, but I can only advise on the law as I see it. The view is also consistent with a decision of the Court of Appeal just over a year ago which decided that (in the particular circumstances of the case, which were similar to yours) the local authority, rather than its tenants, was the ‘consumer’ so far as the water company was concerned: see The Mayor & Burgesses of the Royal Borough of Kingston-Upon-Thames v Moss [2020] EWCA Civ 1381 (27 October 2020) (bailii.org). The local authority then ‘resold’ the water to its tenants. Regulation 8 of the The Water Supply and Sewerage Services (Customer Service Standards) Regulations 2008 (legislation.gov.uk) includes some detailed provisions. Reg 8(6) assumes that the supplier will take the initiative in making the compensation payment to each customer. Regulation 8(7)(b) would then require customers for whom the supplier has no name to make the claim within 3 months. This would cover the position where a tenant who does not pay the water rate/water charges has suffered interruption. But this has to be read subject to the ‘separate charge’ condition in Regulation 4 (see above). The provision in Regulation 5(1) (b) to the effect that it is not required ‘to make a payment to more than one person in respect of any one claim’ would be consistent with this, and would mean that, if a tenant should claim, their landlord could not, and vice versa. That said, I can see no harm in each of the leaseholders (or their tenants) trying to make an individual claim against Southern Water, and see how they interpret the 2008 Regulations. If they do not pay up, it could be followed up by bringing in the Consumer Council for Water, and if necessary referring the matter to OFWAT (see ‘Disputed claims’ in Standards of service - Ofwat). As stated, as a matter of strict law, I would not be optimistic. OFWAT might be prepared to take a more pragmatic stance. But Southern Water might think that they and the other water companies had sufficient financial interest in this as a test case to take OFWAT to judicial review if they thought OFWAT was not properly applying the law. I am afraid that I can see no basis at all under the 2008 Regulations for Freeholders Ltd bringing a claim on behalf of all of the leaseholders, except perhaps for a single claim in respect of the whole premises. This would, unfortunately, be at the lower rate of £20 (see Reg 8(5)(a)) as the whole premises – including any commercial elements – would seem to be ‘domestic premises’ as defined in Regulation 4(1) of the The Water Supply and Sewerage Services (Customer Service Standards) Regulations 2008 (legislation.gov.uk): the whole premises (ie the block) is used partly as a dwelling. I have not considered in any detail whether Freeholders Ltd might have grounds to bring a separate claim at common law (rather than under the 2008 Regulations) against Southern Water. Any claim would seem pointless. Freeholders Ltd has not itself sustained any quantifiable financial loss as a result of the interruption to the supply, and I cannot see any basis upon which it can bring a claim on behalf of individual leaseholders or residents. The separate personality of limited liability companies ‘cuts both ways’. Any loss would have to be quantified individually for a claim by each leaseholder or resident – which is why, for convenience, the Regulations provide for a set standard figure. I would be interested to hear how you get on with any claims. It is possible that all this reveals a gap in the law.

Question 56

Complicated lease situation involving a 'variable estate rent charge'

Accepted Answer

I am the chair of our Resident Association and wanted to ask your advice about a couple of issues. I should point out that the properties on the site are mainly freehold and the communal land surrounding these properties are leased from the landlord, and it is in respect of the latter we write to you. We have been liaising with the managing agent regarding some major work on pavements and some subsidence (insurance claim) for over 12 months and my efforts (communications) to get any meaningful response has not been successful. At our last meeting the feeling was we should make a formal complaint. How would you view this action? Additionally we have been paying an extra amount annually charges into a reserve fund when I enquired I was told this was for major works but we have not had work completed for years (the above pavement would be classed as major works). Do we have a right to know how much this reserve fund is? We only see the annual accounts and not any account for the reserve fund. As you will detect from my queries above, we are generally dissatisfied with the managing agents (who also appear to be linked with the landlord). What would you advise us to do in this situation? The FPRA replies: I regret to have to say that, compared with most flat-owners, you are in quite a weak position here. The charge that a freeholder on your development pays is not a “service charge” as such but a “variable estate rentcharge”. None of the legislation that has been passed to protect those paying (leasehold) service charges – in particular, the right to be consulted, the right to accounts, and the overriding requirement that service charges be “reasonably incurred” -applies to estate rentcharges on freehold properties. The Transfer Deed which you have provided me with suggests that, in addition, it has been drafted in a way which is hardly even-handed. Clause 6 of the Sixth Schedule purports to make the former landlord’s Certificate of the amount payable under the estate rentcharge conclusive, and clause 10 of the main part of the Deed appears to require that disputes be referred to arbitration by a surveyor nominated by the former landlord. This could mean, for example, that if you were to sue your former landlord, in the hope of having the dispute resolved without the risk of costs under the “small claims” regime of the County Court, the former landlord could successfully ask the Court not to rule on it, but to require you to submit to the arbitration procedure. The disadvantage of this would be that the usual rule as to costs applicable to larger court cases and all arbitrations would apply i.e. the loser would have to pay the winner’s legal costs as well as his own. Provisions such as these are no longer enforceable in leasehold service charges: when they were, they put leaseholders at a disadvantage. It might be appropriate for me to spend some more time considering this Deed to come to a view on whether there is any way around these rather one-sided provisions. On the other hand, you say in your e-mail that “the 31 properties on the site are mainly freehold”. Does this mean that some of your members are still leaseholders, owning their houses under the original 1960s leases? (I do not, incidentally, follow your suggestion that the surrounding communal land is “leased” from the former landlord: on the limited documentation that I have seen it would appear that this is owned by the former landlord, and that the freehold owners have the right to use it. If it is leased, to whom is it leased?) Any of the leasehold owners are still paying what is, in law, a (leasehold) service charge, and if so, all the rights applicable to service charges apply to them. These rights are clearly set out in a booklet that is obtainable from LEASE and can be viewed on or downloaded from their website (I should perhaps mention that this booklet refers to “Estate Management Charges” as being governed by similar legislation to leasehold service charges. This legislation does not apply to you, as what you have is not an EMC: these rules apply only if an EMC scheme has been made under the Leasehold Reform Act 1967 or the Leasehold Reform, Housing and Urban Development Act 1993, and neither of these applies in your case). What I am therefore suggesting is that one of your members who is still a leaseholder should insist upon the Landlord (who would be their landlord, and not their former landlord) providing accounts. The way the relevant sections of the Landlord and Tenant Act 1985 are drafted seem more directed towards obtaining details of the annual charge, than in ascertaining the amount of any reserve fund, but if necessary two-thirds of the leaseholders could exercise the right to have a management audit carried out under s 76 of the Leasehold Reform, Housing and Urban Development Act 1993. Details of this are also to be found on the LEASE website at http://www.lease-advice.org/apsuframe.htm. It is also possible that, if the works to the pavements etc., would result in a payment of more than £250 from any one of the leaseholders, the landlord would be required to consult with them before incurring expenditure (see the LEASE booklet for this). It is, however, possible that the variable estate rentcharge applicable to the freehold properties and the service charge applicable to the leasehold properties are imposed, collected and retained entirely separately. I say this because there are quite elaborate provisions in the freehold estate rentcharge for a reserve fund to be accumulated. There is nothing of the kind in the provisions for the leasehold service charge (though in the copy lease that I have the Second Schedule finishes rather abruptly at clause 4: is there anything more?). If a lease does not contain a power to accumulate a reserve fund, one cannot do so, no matter how desirable it may be to have such a reserve. If the landlords are collecting for the reserve fund from the leaseholders they may be doing so without authority; but I cannot see how the service charge arrangements are working at all unless they are conveniently overlooking this. A leaseholder would also be entitled to challenge the service charge before a Leasehold Valuation Tribunal on the basis that the transfers to the reserve fund were not of reasonable amounts. Such an application would, inevitably, have to be met by the landlord supplying full details of the reserves and the basis upon which they were being accumulated. This could, however, be a risky strategy to adopt, as if the LVT pointed out that there was no authority in the lease to collect reserves at all, it could be a rather inconvenient decision. A further point which may require some further attention is why the copy lease that you have supplied me with is an Underlease. This would suggest that perhaps the whole development was leased in the 1960s to a management company of some sort, which then granted underleases to the individual house owners. I have not thought through the implications if this is the situation. On the other hand, the copy Underlease has stamped on it an endorsement by the Land Registry to the effect that the lease has been determined, and the (under)leasehold title closed. This is dated shortly after the date of the Transfer Deed of the freehold of No 31, which suggests to me that, once the owner of No 31 bought his freehold, the Underlease was merged in it. It would simply not be possible to do this if there were still a lease existing between the freehold and the Underlease. You may have gathered from this letter that I do not feel that the arrangements under which your estate is operated are particularly satisfactory. The basic problem is that your estate was set up as a leasehold estate before leaseholders got the right to buy the freehold of their individual properties under the Leasehold Reform Act 1967. That Act has made it difficult to deal satisfactorily with leasehold houses where there are shared facilities which require the imposition of a charge to maintain them. Estate rent charges usually deal with fairly minimal expenditure, and they are uncommon, so those who pay them have not received the same attention from successive Governments as those who pay leasehold service charges.

Question 57

Confidential Information

Accepted Answer

Q: Does the request to inspect the minute book, allow a member to see all the minutes from the inaugural meeting establishing the Association in early 2014, to the last set of signed minutes? Can we ask him to specify which set of minutes or range of dates he wishes to view? Can we inform him he can only read but not make notes or request copies? Since we consider the Minutes to be confidential as some contain confidential information given to us by the Landlord on the understanding we keep this information in Committee, can we ask the Member to sign an agreement to keep the information he learns about, confidential and not to declare it to anyone else, either verbally or in writing.? If we subsequently find out he has not adhered to such an agreement, can we invoke another constitution clause which states "In the event of gross misconduct by an Association Owner, the Committee may suspend or end the Owner's membership by a two thirds majority vote"? FPRA Chairman Bob Smytherman replies: I think in general the best advice when running a Residents Association is transparency and minutes should be available to all members to view on request. Having said that it is important to avoid using names when referring to Association members in minutes. In my block we tend to refer to members by flat number. If there are specific personal details minuted these should be marked and stored on a confidential basis and only shared on a 'need to know basis' and certainly not routine. This is potentially where tensions will come up and there can be a perception of secrecy. Ultimately transparency is the key as a default position and you committee should be able demonstrate a sound reason for not sharing minutes with everyone. Certainly all RA members should not be sharing content of minutes outside the association without express permission of the committee and only for a defined purpose to seek advice on elements contained in the minutes. I personally would avoid suspending members of the RA wherever possible, but if there are clear breaches in confidentiality then this would be a last resort. The best advice is to keep the minutes as short and to the point as possible and avoid wherever possible including names and confidential information about an individual. If you would like us review your constitution please send the office a copy and we can organise this. [Submitted October 2016]

Question 58

Contaminated Recycling Refuse

Accepted Answer

Our local council are encouraging recycling and we wonder if there are rules for blocks of flats which currently put everything in rubbish bins as we fear soon they will not be emptied if contaminated with recyclable items, do you have any info please? The FPRA replies: It is difficult to provide definitive advice as all Local Authorities provide different recycling schemes for their area, but provided you have a separate area for dedicated recycling bins that the Council can access for collection there should not be a problem. The issue I have in my own block is where non recycling materials are placed in the recycling bins and from time to time we have to remind residents what can and can not be placed in these. I suggest discussing your individual requirements with a manager from your Council's recycling team on site at your block so you can discuss all the issues and sort out any problems before the recycling bins arrive. Many older blocks were simply not designed with this in mind and it may be it is not practical for your block.

Question 59

Contractors and Regulations

Accepted Answer

Contractors and Regulations Q: We are a self-managed management company with 24 flats. We use a small number of contractors such as decorators, gardeners, cleaners which all operate as a business. One leaseholder feels we should abide by Construction (Design and Management) regulations. Is this required for a small management company? FPRA Committee Member Colin Cohen replies: The self manged block would need to comply, firstly since they are likely a "company" managing their own block’s affairs and therefore must conform with all applicable health and safety law and secondly the common areas of the block including external areas are deemed to be a workplace as people work in them (postmen, delivering post, cleaning contractors, gardeners, etc.) Hence I would suggest that the block employs an CDM specialist to advise them on what they need to do for any supplier. [Submitted July 2019]

Question 60

Controlling sub-tenants after buying the freehold

Accepted Answer

A number of flats in our block are buy-to-lets. Some of the sub-tenants in these flats are problematic as they are short-term residents with no vested interest in the building or the community of residents. We would prefer a block of owner-residents. We are about to purchase the freehold, and our question is whether this affords us an opportunity to stop the sub-letting of flats. Could we vary our leases to enable us to ban, or at least control, the sub-letting of flats? The FPRA replies: I would firstly observe that the growth of “buy to let” has meant that we have received many queries about the problems of sub-letting. Whilst that bubble may now have burst, there will be many other cases where leaseholders turn to letting because of present difficulties in selling. I have had a look at your lease, and there is no restriction on sub-letting in your lease, apart from the usual prohibition of sub-letting of part of a flat (clause 4(i) on p 10). I have seen a few leases which prohibit sub-letting entirely, but these are rare. Even prospective purchasers who like the idea of living in a block inhabited entirely by owner occupiers may feel that it is unduly restrictive to prohibit sub-letting entirely; they may need to sub-let for a while themselves if their work takes them to another part of the country, or abroad, or if they should need to go into a residential or nursing home for a while. (Ironically, in one case where I came across the outright ban, I was acting for a purchaser who was buying the flat for his student son to occupy with some friends. The son would not be paying his father rent, and the friends would be lodgers rather than tenants, so this mode of occupation would not therefore breach the lease!). You may find that it is an acceptable compromise not to ban sub-letting outright, but to impose a condition that sub-letting should be allowed only with the consent of the landlord. Whether or not the following words are included, it would be implied in law that “such consent is not to be unreasonably withheld”. The only trouble is that there is not much guidance from the case law on what sort of factors you can take into account in giving and withholding consent. If you had such a condition in your leases, then you could ask leaseholders to provide financial and personal references for their prospective tenants – although it is arguable that, as the leaseholder will remain liable for the service charges, the financial position of the tenants is not particularly relevant! You could, I think, certainly insist that any tenancy agreement is vetted by the solicitor to the Freehold Company, at the expense of the leaseholder. This would ensure that any restrictions in the lease are carried over into the tenancy agreement, so that the tenant knows what they are. Restrictions in the lease are, in fact, as a matter of law binding on sub-tenants even if they are not contained in the tenancy agreement, but it is good practice for them to be brought to the sub-tenant’s notice. Insisting on references and the vetting of the tenancy agreement is likely to delay the granting of sub-tenancies. Leaseholders who are sub-letting because e.g. they are about to go abroad may accept this, but increasing the length of void periods may discourage buy-to-let leaseholders, who may feel that better profits are to be obtained in blocks which do not insist on this. The only wording in your existing lease which may be of some use in restricting sub-letting is clause 2(j) on p 5, which deals with insurance. I have seen it argued that, if an insurance company imposes a condition that lettings should not be to students or to housing benefit claimants, and would weight the premium for the block if this condition were breached, then such a clause could be used to insist that leaseholders do not sub-let to any of these prohibited categories. It may be worth a try to use this argument, if applicable. First, I should point out that the fact that you are acquiring your freehold will not make as much difference as you might think to the practicality of amending your leases. Some residents’ associations who acquire their freehold think that, after acquiring their freehold, it will then simply be a case of passing a resolution at an AGM to ban the keeping of pets, restrict sub-letting, alter parking arrangements, etc. This is very definitely not the case. Even when the freehold has been acquired by the leaseholders, the existing leases continue to govern the relationship between the Freehold Company and each individual leaseholder. The Freehold Company cannot impose any restrictions on the leaseholders that go beyond the scope of the terms of the lease. With regard to varying leases generally, I would strongly recommend that you buy a copy of a booklet that I originally prepared for FPRA which deals in some detail with varying leases; it is available from the Office for £10. It is not an appropriate use of my time to go over these points in reply to each and every letter that enquires about varying leases. Acquiring the freehold will make it easier to vary your leases in that it would be difficult, though not impossible, to vary leases if the ground landlord were not “on board”. The most straightforward way of varying leases is by unanimity: all the leaseholders and the Freehold Company sign appropriate Deeds of Variation, which are then registered at the Land Registry. This may, however, simply not be possible. If you cannot achieve unanimity, you can also vary all the leases under section 37 of the Landlord and Tenant Act 1987 by an application to the Leasehold Valuation Tribunal. Any such application must be supported by at least 75% of the parties and must not be opposed by more than 10% of the parties. Owning the freehold gives you an advantage if you are seeking variation, as the landlord counts as one of the parties. So the majority viewpoint is likely to be able to bring the landlord on board as well. If you have 14 leaseholders you have 15 parties, including the landlord. So at least 12 parties (which could be 11 leaseholders, plus the landlord) must therefore support the proposed variation, and no more than one leaseholder must oppose the proposal (if 2 leaseholders opposed the proposal, it would be opposed by 13% of the parties). I am not aware of any cases where leaseholders have got leases varied to restrict sub-letting by using s 37 LTA 1987, though in principle it should be possible. The Act says that leases should not be varied if the variation would “substantially prejudice” any leaseholder, and an award of financial compensation would not be adequate recompense. This latter provision is unlikely to apply here: it is more likely to be relevant where, e.g., the addition of an extra storey prejudices the leaseholders on the existing top floor, or an alteration to parking arrangements prejudices one or more leaseholders. Another course of action which might be worth considering is for those who are willing to have their leases amended to go ahead with it, in the hope that when the flat(s) owned by the dissenter(s) eventually change hands a future owner may be prepared to come on board. Members may, however, be unwilling to impose such restrictions upon themselves if not all are willing to do so. On the other hand, I have heard anecdotal evidence of higher prices being attained in a block which bars sub-letting compared with those attained in an identical block which does not, so there may be an advantage in making substantial progress towards the eventual aim of a block where sub-lettings are restricted.

Question 61

Controlling the sub-letting of flats

Accepted Answer

We are residents of a block of flats comprising six units, and we have bought the Freehold. Recently we asked our solicitor about the advisability of amending a clause in the Lease governing the question of sub-letting. Due to a bad experience with sub-let tenants we wish to tighten our control over any future ones. To this effect our solicitor has formulated the following amendment: The Tenant shall further observe all further regulations which the Landlord from time to time may deem necessary for the safety care or cleanliness of the premises or for securing the comfort and convenience of the tenants of the premises PROVIDED that no such additional regulations shall subject the Tenant to any unusual or unreasonable burden. In his covering letter the solicitor also stated the following: “I have retained the general power of the Landlord to make regulations, as this is very common in long residential Leases, and will give the Residents’ Company the ability to react to different situations in the future without the need for a further variation in the Lease. Regulations should govern the day to day occupation of the flats, but not fundamental issues.” Five of us are happy with this proposal. However, the sixth has qualms – being quizzical of the Landlord’s powers to make changes, and if this is common practice. They are also concerned whether the additional clause might affect the saleability of their flat. We should be very grateful if you could say a) whether or not you find the proposal normal, and b) whether it might militate against a flat’s sale value. The FPRA replies: In my experience it is very common for the long lease of a flat to reserve a general power on the part of the Landlord (whether the Landlord is a Residents’ Management Company or an outside ground Landlord) to make regulations for the good management of the block. Probably more leases contain them than do not. I would certainly not expect the inclusion of such a clause in a lease to affect adversely the value of a flat. It is, I think, generally accepted that regulations of this kind cannot contradict or frustrate any express provisions in the lease, and that they should generally be confined to the sort of matters with which they customarily deal. The reference to “unusual or unreasonable burden” in the wording suggested by your solicitor expresses this quite nicely. I would, however, question whether provisions of this kind are going to do very much to solve the problems you have encountered with sub-tenants. If the lease permits sub-letting – and most, though not all leases do – then a leaseholder could always argue that regulations could not validly be made which would restrict this. Further, it is not always appreciated that any covenants of a restrictive nature found in a lease (or indeed in regulations made under an enabling provision in a lease) would be binding on a sub-tenant even if the sub-tenancy agreement does not contain them. So, if a lease prohibited the keeping of pets, and a sub-tenant disregarded this, saying that this was not prohibited in his (sub-) tenancy agreement, the Landlord could still obtain an injunction against the sub-tenant; the sub-tenant might, however, then have a claim in damages against the leaseholder.(In the case of a gross or persistent breach of such a covenant the landlord might do better to tackle the issue by forfeiture proceedings against the leaseholder, which would also include the sub-tenant). If you want to restrict but not prohibit sub-letting then the best solution may be to require, as an express clause in the lease, that lettings should require the consent of the Landlord, such consent not to be unreasonably withheld (though even if these words were not included it would be implied by law that consent could not be unreasonably withheld). There is not a lot of case-law on what amounts to unreasonable refusal in the case of a long residential lease, but I think you could use such a provision to require references from prospective sub-tenants, and to insist that each tenancy agreement was approved by the solicitor to the Landlord, at the expense of the leaseholder. This would ensure that the tenancy agreements did comply with the lease; the additional expense would be probably be acceptable to the leaseholder who was an owner-occupier who had to be absent for a while, but the buy-to-let investor, on the other hand, might prefer to buy somewhere where this minor obstacle to sub-letting was not to be found. One could argue that any restriction in the lease may slightly lower the price: on the other hand, I have heard anecdotal evidence of sale prices in a block where sub-letting is prohibited altogether being higher than in an identical neighbouring block where this restriction has been removed. This will, however, depend very much on the nature of the flat, and what the demand is locally for buying to let, compared with the demand for owner-occupation.

Question 62

Cost of Cleaning and Painting

Accepted Answer

Q: Our building (65 apartments, seven stories) is due to be decorated this year. At a previous AGM we were advised by the management company that is was best to engage their in-house surveyor for this project. We agreed and a specification was drawn up. Initial suggestion: the work will cost about £80,000, and the surveyor fee would be 11.5 per cent plus VAT on top. For basically a cleaning and painting job (with scaffolding required for a third of the building), we felt this charge for a surveyor was excessive, so we asked about not engaging a surveyor for such a basic job (albeit expensive due to ‘access’). The management company have advised us that they can get their ‘major works’ department to take over, but we would now incur a 10 per cent management fee from them (plus VAT). Can you advise if this seems in order please? FPRA Hon Consultant Emily Shepcar replies: It is not unusual for a fee to be charged for the involvement with major works where you are asking the managing agent to do work which is over and above the terms of their management agreement. I would anticipate that this fee includes the costs of producing the specification of works, obtaining quotations for these works, reporting to the residents’ association, possibly carrying out section 20 consultation (although this may be a further fee depending on their management agreement terms) and the liability which is involved with producing the specification and signing off the works on completion. They are, effectively, acting in place of a surveyor. I would suggest that, to obtain some further clarity, you request confirmation from your managing agent on what this 10 per cent fee covers and they should be able to give you a breakdown of this. [Submitted January 2020]

Question 63

Cosy Relationship

Accepted Answer

Cosy Relationship Q: Our lease allows the freeholder to place the insurance without consulting us, and I believe the longstanding cosy relationship they have with their insurers does not work in the interest of residents. We therefore want to obtain quotations from alternative insurers and then coax, cajole or pressure the freeholder into accepting what would be a better deal from the RMC’s point of view. How can we go about this? What insurer or broker could we approach? FPRA Chairman Bob Smytherman replies: This is something that is very common and included in the lease of my block too. What we did was to seek a number (three is ideal) of quotations from other insurance providers. It’s important that you share with these companies the existing cover to ensure that the quotations are based on the same cover. Hopefully the freeholder will then accept the new quotation without further challenge, however you may need to consider getting an independent valuation for insurance purposes to providing this evidence to the freeholder. If they still object you will have to consider a tribunal application for unreasonable service charges. It’s important the freeholder discloses the commission they receive for organising the insurance as this will be vital evidence with any challenge. The FPRA do not recommend any insurer or broker but would strongly advise seeking quotes from providers that specialise in ensuring blocks of flats for an RMC. [Submitted July 2019]

Question 64

Dangers of Wi-fi

Accepted Answer

Q: A situation has arisen about the use of wi-fi in our block of flats. We have one rented flat where the tenant is very susceptible to the microwaves from wi-fi and feels physically sick if she is exposed to wi-fi from adjacent flats. To this end she has contacted the other owners and tenants and asked if they can switch off their wi-fi when not in the flat and at night and/or use wired internet connections. She has even bought and lent Ethernet equipment to a close neighbour to encourage them not to use wi-fi. This, as you can imagine, is causing issues with the other tenants/owners who consider that this encroaches on their own use of their property and not being inflicted with the same physical issues cannot really understand what all the fuss is about. Having heard her story and investigated the matter for myself I did find a huge amount of evidence showing that these new microwaves are becoming known as the new danger for humanity which we are ignoring as we did the danger of smoking. The issue with smoking became evident in the 50s but only acted on in the 80s and even now variations of smoking are still being promoted on TV advertisements as "vaping". The Queen’s father George VI died of smoking related lung cancer in 1952 and my own mother, a heavy smoker, died in 1963 of the same disease. However, only a lot later in the 80s was the connection between smoking and cancer linked to such a degree that something was done about it and smokers were put under pressure to stop. 30 years is a long time to make any positive moves towards limiting smokers and making it publicly unacceptable to smoke. So with microwave telephony are we potentially facing an epidemic in the future? In the research I have done I came across a video clip showing eight phones, all active on calls, surrounding a frying pan with a raw egg, and the microwaves were frying the egg. Approximately eight per cent of the population are knowingly affected by microwaves. So I think that this issue is real and could be the next major health warning for the population as a whole. However, as always there are too many people and companies making too much money from telephony where microwave signals are used. So as a management company where we have one susceptible tenant in a block of eight flats where only four have permanent occupants and the rest are holiday flats this situation is causing a problem for the other tenants who are being asked not to use wi-fi. We have heard that there could be an Ethernet solution which would mean a wired connection and could help this tenant with her health problems. Does the FPRA have any similar instances or if not do you have any ideas as to how this issue can be overcome? FPRA Chairman Bob Smytherman replies: Thank you for your very interesting question which I have to say is a first for us! I have been asked to respond from a practical point of view as our Health & Safety advisor rather than a legal point of view. Your comparison with smoking in interesting. I was thinking about something more recent which is mobile phones and masts which were thought to be a hazard to health - we don't hear about that so much these days. I wonder whether the tenant that is concerned about wi-fi has a mobile phone and whether that signal impacts on their health? My own view is that wi-fi is very much part of modern life and it would not be reasonable for any tenant or owner to tell another flat occupier that they should turn it off in their own demised premises. In situations like this I always seek to try and identify a compromise, but I am not sure if there is one here? The legal situation is if the tenant felt these 'microwaves' were causing a 'statutory nuisance' they would need to report this to the local council environmental health department who would need to take enforcement action if they felt that it was a nuisance as determined by the Environmental Protection Act. I would be surprised if they did reach that conclusion and ordered the wi-fi to be turned off, but we live a strange legal world these days. The practical solution would be for the tenant to give notice and leave the property if such a simple part of modern life was affecting them in this way. After all, the effect of wi-fi waves could happen anywhere during their day. Are they really going to be able to avoid all such 'microwaves' which are now everywhere included public spaces? A possible compromise could be that you obtain quotes for a block internet system without the need for wi-fi and that met the specification of all the flats, but I am unsure whether your lease would allow you to charge this the service charge or whether such a system was available. I think my best advice would be for you to contact the environmental health department yourselves, explain the situation and ask for their guidance as to whether it is reasonable to expect flat owners to turn off wi-fi following a request from a tenant. I would certainly be interested to receive their response and share with other members as a generic question and answer, because if it was the case a tenant could reasonably request this on health grounds this would have huge implications, not just in blocks of flats. [Submitted November 2016]

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