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Are leaseholders trapped?

The BBC recently published an article on how leasehold flat and house owners have become trapped in their own homes. Unable to sell their homes and with no control over the fees charged by the freeholder. Ashleigh Wilson bought her own home four years ago and had not understood what she had entered into. She was being charged £800 per year in ground rent and service fees. The lease even stopped her from changing the floor tiles. This is, unfortunately, a situation that many homeowners find themselves in.

 

A recent consultation by the law commission looks to address the disparity of leasehold property ownership. The law commission recommended changing to the Scottish system of commonhold. Which is when property owners communally own a building and have more say on how money is spent. 

 

iInsure365 contributed to the law commission proposal. Our input was on how the change would affect the building insurance.

 

We believe in transparency. We feel that freeholders have overcharged leaseholders and continue to do so.

 

Freeholders inflate the insurance cost and include it in the service charge. This isn’t transparent and is masking the true cost of the insurance. We feel this is one of the biggest issues in the Leasehold debate.

 

What options do leaseholders have?

 

Leaseholders can take hold of their costs by using the Right to Manage process. Leaseholders can alternatively join together to buy the freehold. This is known as collective enfranchisement. They will need a solicitor to handle the legal process and a local valuer to value the freehold. By purchasing the freehold they have the freedom to manage it how they wish. Alternatively, they can apply for the Right to Manage and take over the management duties from the freeholder. This way they can control their costs without purchasing the freehold.

 

iInsure365

 

iInsure365 can help leaseholders in either situation. We can provide transparent quotes to save leaseholders money. See our Google reviews from our clients! We have a rebuild cost calculator that will also save leaseholders money. The assessment is only £160 and will recommend the rebuild cost to use. This will stop leaseholders from paying for insurance that they don’t need. Saving leaseholders money and providing peace of mind. If you would like a quote, request a call from us and a member of staff will contact you at a time that suits.

 

Ashleigh Wilson is not alone in her naivety regarding her lease. Taking the Right to Manage or collective enfranchisement can be can be even more confusing. However, we have a news centre with lots of articles that explain both processes and cover a number of other insurance related subjects. 

 

Directors and Officers Liability Insurance

Do I need Directors and Officers liability insurance?

 

The cover protects the Directors and Officers of Right To Manage leasehold/freeholds or residents associations. It will be individuals that administer and make decisions for their block of flats. They are usually unpaid volunteers that administer and make decisions that relate to the running of their flat block. These often include decisions on maintenance issues, planning permissions and company bank accounts. Also, parking, noise disputes and even on occasions how to interpret leases. They are not limited to these items as their roles can be wide-ranging and must comply with company law as well as Landlord and Tenant Law.  
If a Director or officer makes a negligent decision that causes a financial loss. Those Directors and officers may find themselves being personally sued by a resident of the block of flats or a third party. It is rare but it does happen.

Do I need to take out additional insurance?

 

It is a personal choice. Some policies will already have a level of cover within them. Therefore it may not be necessary to take out an additional policy. 
Most managing agents won’t get involved in company decisions and therefore this is what insurance is for. 

 

Can I be personally sued?

 

Yes. Directors and officers liability insurance can seem expensive because claims are rare. However, when they do happen they can be very expensive. It is important to consider the potential saving in the case of a claim. As instructing a solicitor, even for an error or omission of a previous director can be very expensive. As the liability can be personally directed there are big potential downfalls.

What does my policy cover?

 

Your policy will cover the items listed below:-

 

  • Legal costs of a claim or investigation incurred by you or your organization
  • Any award or settlement made
  • Regulation
  • Employment, regulatory pensions, cyber, contractual, pollution and employee dishonesty claims
  • Can include contract dispute and debt recovery pursuit
  • Negative social media
  • Public relation cost
  • Circumstances related to investigation costs

 

Examples of what can happen: –

 

Regulation Tax

 

HM Revenue and Customs prosecuted a property investment company. The reason being that they were alleged to have made false statements in earlier tax investigations. Legal fees in the case came to more than £50,000

 

Pollution

 

The directors of a property management company were called to give evidence following a pollution leak into a local river. The legal fees for the represented company were £10,000.

 

Breach of duty

 

Shareholders of a family run property group made a claim against the company and its Directors. They accused the property group of acting unfairly and breaching their duties. The property group seeked an investment which reduced the value of the shares. The legal costs in the case were more than £150,000.00. A minimum settlement was eventually agreed.

 

What else will I get as part of my cover?

 

  • There will be free access to a comprehensive range of specialist advisors, and advisory services. Offering support to help customers minimize risk and promote growth if required.
  • There will be a team of experts working with customers to develop their business sustainability and responsibility for providing design innovation and ethical solutions.
  • Knowledgeable and experienced legal teams available when customers need it most. The policy will provide full professional representation to help customers succeed and manage claims successfully.

 

  1. Other such incidents include:-
  • Human resources and employment
  • Health and safety
  • Waste and environmental regulations
  • Taxation
  • Money laundering, fraud, bribery and corruption, anti-competitive practices.

 

2. The cover with respect to intellectual property covers:

  • Data protection and cybercrime
  • Legal advice on a range of areas including Directors and shareholders duties, contract disputes, financial crime, motoring and criminal offences.

 

Summary

 

It is easy to overlook the importance of Directors and Officers liability but it can be vital if the need arises. The truth is that the individuals that volunteer for those positions are taking on a big responsibility. One that will affect the lives of everyone else that lives in the flat block. Therefore the potential financial liability is huge.

If you would like to discuss any of the above then request a call back to discuss your options. We can provide a separate policy or include the cover in a building insurance quote.

Law Commission Proposal for April 2019

The Law Commission has unveiled a series of reforms. These are with the view to make it quicker and easier for leaseholders to take control of the day to day management of their flat block.

 

We at iInsure365 are privileged to have been able to contribute towards the consultation and the Law Commission document.

 

The Consultation has now been released on how the leaseholders will be able to change the Right To Manage. These proposals will make it easier for people to take the Right To Manage.

 

What does it cover?

 

The new proposals include extending the Right To Manage criteria to include leasehold house owners. It will also allow leaseholders to apply to manage multiple blocks and addresses the costs and paperwork of doing so. 

 

Other questions raised in the proposal are as follows:-

 

1) What are the requirements for the Right To Manage and who can apply for the Right To Manage?

 

2) Do people have experience of failing the Right To Manage because of definitions of the Act?

 

3) Would it be helpful for lessees to have one person to have the right of management? Or should there be a reduction for qualifying tenants from at least two thirds of the flats to 50%?

 

4) Do you agree that there should be a removal of the exemptions for buildings that consist of a non-residential area of more than 25%?

 

5) Should Right To Manage Companies have to employ a managing agent where there are commercial properties involved?

 

6) Should there be an extension to the qualifying terms of Right To Manage and if so how?

 

7) Should the Right To Manage Company be able to obtain ownership of the building?

 

8) Should the Right To Manage companies by limited by guarantee?

 

There are various other questions on the Right To Manage and how lessees should govern and use them.

 

This is the most comprehensive review of the Right To Manage system that has taken place over the last few years. It will dramatically change and help lessees to be able to deal with the Right To Manage for their block of flats in a much easier way in future.

 

Summary

 

We are pleased to be able to confirm that we have contributed towards the Law Commissions paper on the Right To Manage. We believe it is absolutely critical for lessees to be able to have a much easier way to manage their own buildings and to reduce their costs. It is often so problematical for lessees and owners of flats as they do not understand the process. We are often asked to obtain quotes for lessees. In doing so lessees often find that they have been paying more than they should for their insurance premiums. This may be knowingly done by the freeholder/managing agent or the building may be over insured. This document will be able to bring restrictions that will help the Right To Manage company to control their expenses.

 

Consultations in relation to the above end on the 30th April. We believe that if you have any involvement in Right To Manage you should read the Law Commission paper. Not only that but also try to give consultation and any comments on it to help lessees in the future.

Do you still use a managing agent?

Even after taking the Right To Manage or Collective Enfranchisement?

 
Managing agents and freeholders still receive commission on insurance. They will also not disclose this to the leaseholders. It is now a requirement by law that any insurance commission they receive is disclosed to the leaseholders. iInsure365 have on many occasions provided insurance quotes for leaseholders. By doing so we have saved them substantial amounts of money.
 
Managing agents often come up with excuses. For example; they use this as part of their fees, or that they use the commission to deal with insurance claims. Even that the insurance isn’t on a like for like basis (often insurable items that aren’t actually required by the leaseholder). Surely they should be open and transparent and let you know exactly what you are getting?
 
We have found that managing agents and/or freeholders can charge up to 40% commission on insurance. They will even, on occasion, increase the premiums to earn more commission.
 
We are totally transparent. If you request details of any commission we will happily give it to you.
 

Can I get my own insurance quote for the building?

 
Yes, you are entitled to get your own quote.  The best way is to provide us with a copy of the full policy and schedule so we can ensure you have a like for like quote. You will likely find that the managing agent and/or freeholder will do anything in their power to keep the insurance policy with themselves. You may find that they lower the price once presented with a cheaper alternative. However, you do have the right to claim back money charged for inflated insurance through a Leasehold Valuation Tribunal.  
 

Is iInsure365 affiliated to any managing agent?

 
Absolutely not, we have no affiliation with any managing agents hence why we are happy to provide details of the commission that we receiveWe ensure that your policy not only covers you on a like for like basis but will also raise questions on parts of the policy that may not be required. We often find that we cut lessees insurance premiums by up to two thirds when quoting against existing cover.  You may find that it is not easy to get the freeholder to change the insurance. So it may be worth considering the Right To Manage.
 

Should I complain to the managing agent about my insurance premium?

 
We would suggest that you always get an insurance quote first and then take it up with your managing agents.  If they do not wish to change then we would suggest that you seek legal advice from a solicitor who will be able to help. You could find that the savings outweigh solicitor costs.  
 

Can I change an insurance policy halfway through? 

 
Yes, each individual insurance company will have different charges. Be sure to check first but you may find that the savings made through ourselves will be greater than what the cancellation charge is. You need to get legal advice to ensure that you are fully aware of what the legal requirements are and what you can and cannot do. It can save you a substantial amount of money.
 

Summary

 
We will always try and help any leaseholder, freeholder or Right to Manage Company to try and reduce their costs. You will find that the savings can be substantial. Not only for the first year but every year thereafter. Please do not hesitate to contact us.

Right to Manage – Frequently Asked Questions

What is the Right to Manage?

 

The Common and Leasehold Reform Act 2002 introduced a right that enables leaseholders to take over the management of their building. This is by setting up a Right to Manage Company. There doesn’t have to be a question of fault by either the landlord or the property manager. The Right to Manage Company assumes full management responsibility for the building. Its members are free to appoint a property manager of their own.

 

What is the purpose of the right to manage?

 

The main reason for having a right to manage is to put the power and control back in the leaseholder’s hands. It enables them to set the standards of their block, managing it themselves. Also, they can ensure that they are getting value for money with their outgoings.

 

Do iInsure365 pay commission to any managing agents?

 

iInsure365 do not pay any commission to any managing agents for any part of our insurance. We do receive a commission in relation to the insurance we provide which we are happy to disclose. iInsure365 are a completely open and transparent business. We will work hard to ensure that your annual premiums remain competitive on a year to year basis whilst maintaining the standard of cover.

 

What is the minimum amount of Directors and do they have to be residents?

 

A right to manage company is only required to have one Director. However, normally there is between three and five depending on the size of the premises/block. There is no requirement for Directors to be residents. The majority of most Directors are normally residents. This is to avoid disproportionate influence from people who are not experienced in the property day to day living. The landlord of the building has no legal right to be a Director.

 

Can the leaseholders exercise the Right to manage if the landlord lives in the building?

 

Right to Manage cannot apply where the premises fall within resident landlord exemption. The criteria for this exemption are as follows: –

a) The premises are not a block of flats

b) There are less than four flats

c) One of the flats has been occupied by the landlord or an adult member of their family as their only or principal home for the last 12 months.

 

Can a leaseholder ask the landlord to provide the names of the other leaseholders to invite them to participate in the Right to Manage process?

 

It is only the Right to Manage Company that can insist on the landlord providing the names of the leaseholders for this purpose. In the first instance, it would be necessary to speak to the flat owners or check the Land Registry. It may be best to use a solicitor to ensure that it is done correctly. 

 

What sort of majority do we need to go ahead?

 

You must have at least a 50% majority to proceed. As long as at least half of the leaseholders in the block of flats are in support the right to manage can proceed. 

 

What are the responsibilities of the Right to Manage Directors?

 

All Directors have the responsibility to serve the best interest of the members of the Right to Manage Company. This goes as far as managing the property in the best interests of all leaseholders of the estate. Right to Manage companies can appoint a managing agent to deal with the day to day management of the estate itself. However, we can provide you with Directors insurance to cover any liability.

 

Will we be able to choose our own managing agent under our Right to Manage?

 

Yes, all reputable Right to Manage Companies should undertake to operate a code of practice. The Association of Residential Managing Agents (ARMA) adopted a code of practice with the Royal Institute of Chartered Surveyors (RICS). It is therefore important that you take time to choose your own managing agent.

 

Can we expect to save money?

 

Yes, most probably. Many leaseholders are facing excessively high charges for items such as buildings insurance, alarm monitoring and maintenance contracts. We would be more than happy to supply you with a like for like quote. We believe it would be substantially less than what you are currently paying not only in the first year but every year thereafter. Don’t hesitate to ask us for a like for like quote.

 

Who owns the freehold after the Right to Manage?

 

The freeholder would not change. The freeholder retains his obligations and responsibility previously held under the Lease. This is apart from the management responsibilities of the building. These transfer to the Right to Manage. The collection of ground rent would still be required under the right to manage.

 

Is the Right to Manage Company bound to carry on with the existing contracts entered into by the landlord?

 

The Right to Manage process may well frustrate the existing contractors. The takeover of the management responsibility by the Right to Manage Company will bring an automatic end to all the existing contracts. The Right to Manage Company can then choose whether to continue with the contracts or not. For instance such as cleaning and insurance.

 

The Right to Manage is in force, but the landlord insists that they continue to insure the building, is this correct?

 

No. The Right to Manage Company has taken over the management function from the landlord (and any management company that might be in place). The management functions include the insurance of the building. We would be more than happy to give you a quote in this regard.

 

To exercise the Right to Manage, how is the process started?

 

A Right to Manage Company will need to be formed. Click here to read more on the Right to Manage Company Formation process.

 

What can leaseholders do if the landlord fails to provide any information requested?

 

The landlord may decline to give over required information in response to a request under Section 82 or 93 under the Common Leasehold and Reform Act 2002. Leaseholders are then entitled to serve a default notice which will give the landlord 13 days to comply. If he fails to do so they can then bring an application for compliance in the local County Court under Section 107. This may not seem to be a practical solution but the court can make a cost order against the freeholder as well as granting the order requested. It is advised to use the services of a solicitor to do so.

 

Right to Manage Company Formation

Do you want to form your own Right to Manage Company? Right to Manage is only exercisable through a Right to Manage Company set up in accordance with the statutory regulations. A Right to Manage Company (RTM) must be a Private Limited Company by guarantee. Also, its Articles of Association should state that its object, or one of its objects, is the acquisition and exercise of the Right to Manage premises.

 

Forming a Right to Manage Company

 

You are no doubt aware of the requirements of qualifying tenants. Qualifying tenants have the right to become members of the Right to Manage Company. Their limit of individual liability is £1. The landlord also has the right to become a member of the Right to Manage Company. This is only after the acquisition date as they keep an interest in the property and his membership is usually limited to a single vote.
 
Since November 2009 Right to Manage Companies only require a single Director. Larger blocks will usually have a board of three or more. However, it is a matter for each company to decide. The Directors do not have to be leaseholders, however, most likely they will be or have an interest in the block. They are normally recommended by the majority of the leaseholders and it would be preferable if they were residents. The Directors would, therefore, be able to see what happens on a day to day basis to help with the Right to Manage Company.
 
The freeholder has no legal right to be a Director but does have the right to a single membership of the Right to Manage Company.
 
We have already outlined in our Right to manage article what you need to do to be able to proceed. As long as at least half of the leaseholders in the block are in support of the right to manage then the process can go ahead. It is always best to involve as many people as you can in a Right to Manage Company to protect against criticism at a later date.
 

Starting the Legal Process

 
There are normally founding members of a Right to Manage Company with at least one leaseholder as a Director. Once the company is established it must serve certain required legal notices on the freeholder. The notice will state that the leaseholders will be exercising their statutory right to manage the property. So as long as they meet the statutory conditions the landlord has no legal grounds to object. A month later the Right to Manage forms with the Right to Manage company taking over the management a further three months thereafter.

 

What is the Right to Manage Process?

 

  • A land registry search is first entered into to establish who the freeholder is.
  • Companies House creates the Right to Manage Company which is quite a simple thing to do.
  • Right to Manage Company serves a Section 78 Notice inviting participants of non-members.
  • To achieve the minimum membership of at least 50% of the leaseholders must join. Then, after 14 days the Right to Manage Company Serves a Section 79 Notice on the landlord.

 

The above notice starts the process of the Right to Manage.

 

The landlord may serve a Section 84 counter-notice within one month. The legal ground limits for them to do this are:

  • Not following the correct procedure.
  • The qualification of the building not being correct.
  • The company members are not leaseholders.

 

  • If there is no counter-notice, a Right to Manage is determined after one month, known as the determination date.
  • If the landlord serves a counter-notice denying the right to manage. The right to manage company can make an application to a Tribunal for the determination within two months of the date of the counter-notice. The determination date is either the date the landlord withdraws the counter-notice or the date of a decision by the Tribunal.
  • Following the determination date, the landlord must serve a Section 92. This is issued to any contractors and contract notices to advise about pending right to manage.
  • Leaseholders organize the block management. Either by selecting or appointing a new managing agent or by forming their own management service.

 

Three months after the determination date the Right to Manage company acquires the right to manage (acquisition date). The landlord/manager then hands over management to the Right to Manage Company or the leaseholders appoint their own managing agent.

 

Summary

 

Do you need freeholders insurance on a like for like basis? Do you want to purchase your freehold to try and reduce your costs through your insurance? Don’t hesitate to ask for a like for like quote. Your landlord could be charging a substantial amount more than the market rate so why not question what you’re paying for.

Right to Manage

Are you a leaseholder and thinking about managing your own building? Do you have a freeholder that you feel is charging you more than what you believe the building actually costs?

 

It might not be necessarily a fault of your landlord and Management Company that you wish to manage it yourselves.

 

There is a criterion that first needs to be met. That a minimum of half the leaseholders in the block need to agree to a legal right to manage process. This comes from the Common and Leasehold Reform Act of 2002 which give you the legal right to choose your own Management Company.

 

Right to Manage will seem complicated to most people but it does have a stringent statutory procedure that needs to be followed. If the legal requirements aren’t met this can leave the door open to technical objections from the landlord. It can even stop the process entirely.

 

How Right to manage works

 

To be eligible for a Right to Manage (often known as RTM) there are some criteria to meet. These are:

  • Right to Manage only applies to leaseholders and owners of flats, not houses or bungalows.
  • It must be a detached building or part of a building that can be served independently.
  • There must be two or more flats held by qualifying tenants and at least two-thirds of the flats must be leased to qualifying tenants.
  • If commercial premises make up more than 25% of the overall floor area then it would not qualify. This is also the case if the local authority owns the property and if the landlord occupies one of the flats.
  • A leaseholder must have a lease period exceeding 21 years to be a qualifying tenant.

 

Summary

 

Do you need freeholders insurance on a like for like basis? Do you want to purchase your freehold to try and reduce your costs through your insurance? Don’t hesitate to ask for a like for like quote. Your landlord could be charging a substantial amount more than the market rate so why not question what your paying for

What is the Right to Manage?

Right to manage is the term used for the statutory freehold management right. It allows a group of leaseholders to take over management of their freehold. However, it is not dependent on the freeholder doing anything wrong. There are some strict qualification criteria in place. So, it is not always possible to acquire management using the statutory process.
 

Qualification criteria?

The basic criteria are that you must have:
 
  • Over 50% of qualifying tenants want to proceed, meaning leaseholders who have a long lease. 
  • A self-contained and self-sufficient (or capable of being self-sufficient) building
  • At least 75% of the building must be used for residential purposes
  • There cannot be an existing right to manage agreement in place
 

What do the leaseholders now manage?

 
If successful, the right to manage company takes over the following duties in respect of the building:
 
If the building is part of a large estate, the management does not include communal grounds or areas. The management of those areas will continue with the freeholder (or managing agent). In addition, the landlord will still own the freehold and will remain involved in the collection of ground rents and the granting of lease consents (like subletting or carrying out works inside the flat).
 

What happens to existing contractors?

 
After the right to manage company takes over, the leaseholders will get to choose which contractors and third parties to use for maintenance. Consequently, all the freeholder’s contracts end as part of the right to manage take over unless specifically requested by the right to manage company.
 

Do the leaseholders have to manage the building themselves?

 
No, there is the option to appoint a managing agent of the leaseholders’ choice. There is no obligation to choose the same managing agent as the previous freeholder. Interviewing at least 3 different managing agents would certainly be recommended as there can be huge differences between agents.
 

How long will this take and how much will it cost?

 
Estimated timings are below. However, in total, the process will take around 6 months if the freeholder does not contest it. Costs can vary based on building, solicitors and freeholders.

Stage

Timescale

Action

Stage 1: Assessment  One week  Assessing if a right to manage can be applied.
Stage 2: Setting up the company  One week  There needs to be a minimum of one director and one member initially.
Stage 3: Notice Inviting Participation  Four weeks  Notice to all remaining leaseholders asking if they would like to join the company.
Stage 4: Qualification  One week  At least 50% of the qualifying leaseholders have to have signed up. If not the process cannot go ahead.
Stage 5: Claim Notice  One week  Serving notice to the freeholder that a correct right to manage application has been made
Stage 6: Counternotice  Six weeks  If the claim is accepted, Stage 8 applies. If the claim is rejected, Stage 7 applies. 
Stage 7: Tribunal Proceedings  Two months  If the claim is rejected the leaseholders have two months to apply to the Tribunal who decide if the freeholder’s rejection of the application is legitimate. 
Stage 8: Management handover  Three months  If the claim is accepted, the leaseholders acquire management approximately three months from the date of the counternotice or Tribunal’s decision. 

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