Managing agent/s need to be aware of the requirements of Data Protection in relation to holding and handling information and who they can give it to.
Overall the guide should include as follows:-
- Fair and lawful process
- Processed for limited purposes
- Adequate, relevant and non-excessive
- Accurate and up to date
- Not kept for any longer than is necessary
- Processed in line with individual rights
- Not transferred to other countries without adequate protection
- They also need to take into account any new rules under GDP
- Obviously in relation to how you communicate with them also includes what hours that they will be working from and whether they have any emergency call out number for you.
You need to ensure that there is a procedure in place for visiting your building on regular intervals having regard to the type and nature of the occupation and the complexity provided. This would be subject to their terms and conditions but access may be needed to individual flats if required. You will often find that some managing agents have never inspected the building unless there are works to be carried out. It is totally a matter for you on what you require. You obviously have got to appreciate that none of these will be during working hours and unless there is an emergency would not normally be outside these.
They will have a requirement to consult with you in relation to any updated law or requirement in respect of major works.
It is important that they keep in contact with you on a regular basis as well as you outlining to them what is required in relation to the management of your building. Often on a right to manage these are transferred over due to major works being carried out by a freeholder that should either never be carried out or alternatively have too much money. You might find that you would want your new managing agent to deal with this again and obviously consultation would take place.
They must consult under the law with the leaseholders individually and any recognised association and hold meetings where appropriate. If a meeting is convened with a residents association the managing agents have to give notice to all leaseholders including the place, date and time of the meeting to take place.
All managing agents have to comply with the money laundering regulations and proceeds of Crime Act. You may not think that it applies to you especially under right to manage but money laundering is now a requirement by law. It is used to conceal serious criminal activity.
Legislation has created broad criminal offences which are as follows:-
- Assisting a criminal to obtain, conceal or retain or invest funds in a person giving assistance, knows or suspects the funds to be the proceeds of crime.
- Tipping off a person who is the subject or suspicion or under investigation
- Failure to report, knowledge or suspicions of a laundering acquired in the process of one’s trade or profession
The managing agent should always levy any charges in accordance with the law and the terms of the lease and the contract. They should maintain efficient records relating to the building. Keeping notes of any statutory limitations of any actions.
In addition they will need to comply with all applicable health and safety requirements. They need to devise and maintain a proper health and safety policy and arrange regular health and safety fire and any other applicable risk assessments for your property.
They need to have sufficient professional indemnity insurance which you should always check and ask for a copy. Also need to have protect client money insurance as well.
Disputes between occupiers?
When you are dealing with leaseholders and especially on a right to manage you might often find that there are some disputes between leaseholders and this would be the managing agents responsibility. They need to deal with this as per the contents and the terms of the lease. You will often find with leaseholders that they don’t understand that properties are dealt with by way of the lease not by what the freeholder or the managing agent says but within the orders contained with the contents of the lease.
Most leases will allow for the recovery of costs from the service charge in connection with disputes between occupiers if it goes that far. They may contact the local authority if this went into items such as noise or anti social behaviour. Most leases will particularly contain a mutual enforceability clause regarding landlords to seek indemnity for their costs from leaseholders requesting any form of enforcement. It may be that the freeholder does not require you to enforce anything under the interest of good management. Obviously any enforcement action would need to be agreed with you in advance and to be lawful.
All complaints should be given with a realistic time and cost involved in any enforcement. You should also consider other methods of dispute resolution such as mediation and be familiar with local mediation services and should suggest this and any dispute resolution.
Disputes between a landlord/right to manage company and leaseholder.
In the lease there is often a provision for disputes procedure such as arbitration which may involve any form of additional costs. Following the introduction of the common hold and leasehold Reform Act 2002 such clauses are likely to be void and arbitration must be agreed post dispute.
You should as a landlord/right to manage company try to resolve any dispute by informal means and consider suggesting mediation or arbitration by way of an agreement rather than going into litigation. It is a much better way of settling particular disputes. The leaseholder should be recommended to seek legal advice on any suggestions.
Unresolved disputes concerning level, quality and cost of services recovered as surcharges may be a basis of an application to the first tier tribunal. This tribunal deals with these type of service charge disputes. Obviously you would normally require your managing agent to deal with this for you but it is something that you should be aware of
It is not always straight forward to differentiate between a complaint against a managing agent and/or landlord/right to manage company. Complaints about matters such as service delivery time scales and cost are typically landlord/leaseholder disputes.
Your managing agent should have a written formal complaints handling procedure in place to deal with complaints about them and their staff. The procedure should be made available to any leaseholder or you as a client. It should include a short series of steps and response time for its various stages and should provide for leaseholders to complain to the landlord. The procedure should provide for complaints about their staff to be made to a responsible principal and for them to investigate quickly and fairly. It should also include any details of a nominated ombudsman scheme which they should belong to. There are various managing agents associations which you can look into.
Where there is a lease/tenancy agreement dispute then the procedure would be arbitration. There will be formal arrangements that may involve extra costs and any subsequent agreement containing a long lease may not be valid unless it has a result of an agreement after the dispute has risen. It would be desirable to try and resolve the dispute by informal matters before turning to any formal provision in the lease or tenancy agreement.
Leaseholders have a right for the management audit to be carried out. You should note that managing agents need to comply with any notices in this respect.
It is a lot to take in when dealing with a managing agent and how to work out exactly who you wish to instruct if anybody. You need to take into account what you are looking for for a managing agent how you want your property managed whether formally or informally. Whoever takes over the management has to take into account the full contents of the lease. You cannot just decide to manage a building on an ad hoc basis without referring back to the lease each time. It is important that you are aware of this and take legal advice if you are unsure.
There are Associations that can recommend managing agents or alternatively you can look on Google and see what reviews there are for them. The contract should be read in full and understood by all parties concerned.
If you missed it, click here for Part 1 of this article.