3.4 You should respond promptly and suitably to reasonable requests from tenants for information or observations relevant to the management of property. Relevant information may be provided, if the lease/tenancy permits or if it is reasonable and first agreed with the tenant, if appropriate, that the tenant should pay a reasonable charge. If there is a conflict with your duties to the landlord you should advise the tenant to seek independent advice. You should never mislead your clients or tenants.
Correspondence is routinely ignored.
3.8 You should have policies and procedures for responding to incidents of harassment. For example, you should be prepared to support tenants who are harassed or victimised on racial grounds and you should remove racist graffiti from properties under your management without delay. All offensive graffiti should be removed promptly.
Clearly there is harassment and victimisation and clearly there is no policy apart from victimising anyone who complains about the services.
3.10 When communicating with tenants you should be accurate, clear, concise and courteous.
Suggesting leaseholders “get a hobby” is not helpful! Forwarding correspondence to clients with suggestion it can be used as evidence is a gross dereliction of duty of care.
3.11 You should dispatch communications, by whatever means are appropriate, so that they reach the intended recipients promptly and in compliance with any legislative requirements. You should be aware of the need to prove to the satisfaction of a court the service of certain documentation.
Prompt communication in Austin Rees world sometimes takes years.
3.26 Dispute resolution
d) You should have clear policies and procedures for handling tenant disputes and complaints about nuisance between neighbours. You should deal fairly with all parties. You should carefully consider whether there are grounds for civil or criminal action. Also you should have regard to any difficulties that may be created by your intervention, e.g. cost implications, and increased animosity between the parties.
There is no policy for this.
7.4 Qualifying works (see also Part 13)
Consultation requirements apply where you propose to carry out works where the relevant contribution (including VAT) of any tenant exceeds £250. You must refer to detailed regulations published under the Landlord and Tenant Act 1985 for further information.
Briefly, a notice of intention as prescribed in regulations needs to be served on each tenant contributing towards the service charges plus the secretary of any Recognised Tenants’ Association, and following any observations received or nominations for contractors, you must obtain at least two estimates – at least one of which must be from a firm wholly unconnected with you or the landlord.
Following receipt of the estimates you must follow the other procedures set out in the legislation and associated regulations. Failure to comply with the consultation procedures required by the law may mean you will not be able to recover charges beyond the statutory limit of £250 per service charge payer (unless you have obtained a dispensation from the need to consult from a Leasehold Valuation Tribunal (LVT)).
The major roof and water pump works prove that you ignore advice from leaseholders at your peril. 3 years later and both are ongoing failures.
7.5 Qualifying long term agreements (see also Part 13)
Similar provisions and notices apply to works and services contracted for a period of more than 12 months and where the cost to any tenant incurred under the agreement will be more than £100 (including VAT) per annum in any relevant accounting period. You must refer to detailed regulations as published under the Landlord and Tenant Act 1985 for further information.
You must serve the relevant notices on each tenant and on the secretary of any Recognised Tenants’ Association seeking observations and nominations for contractors where applicable.
￼22 SERVICE CHARGE RESIDENTIAL MANAGEMENT CODE
S20 – Landlord and Tenant Act 1985
(as amended by s151 – Commonhold and Leasehold Reform Act 2002)
￼Service Charges (Consultation Requirements) (England) Regulations 2003
￼S20ZA – Landlord and Tenant Act 1985 (inserted by s151 – Commonhold and Leasehold Reform Act 2002)
￼S20 – Landlord and Tenant Act 1985
(as amended by the Commonhold and Leasehold Reform Act 2002)
￼Service Charges (Consultation Requirements) (England) Regulations 2003
Service Charges (Consultation Requirements) (Amendment) (No 2) (England) Regulations 2004 (SI 2004/2939)
￼Failure to comply with the detailed provisions of the law may mean you will not be able to recover charges beyond the £100 per annum statutory limit outlined above per service charge payer (unless you have obtained a dispensation from the need to consult from a LVT).
Leaseholders are entitled to meaningful consultation – not just sending out statutory and inadequate paperwork.
8.7 Budgets should be prepared as carefully as possible, using the best possible information available. Beside the obvious benefits of good and careful management there will be considerable difficulties if there is a deficit at the year-end. It is better to estimate prudently and to include a contingency sum.
Where a contingency sum is included regard should be given to its reasonableness bearing in mind that service charges (including advance payments) can be challenged at a LVT where they are believed to be unreasonable.
We’d love to see a budget some time.
12.4 You should select contractors suitable to provide the service involved to a reasonable minimum standard having due regard to the size and nature of the contract, and comply where appropriate with the Construction (Design and Management) Regulations 2007. Contractors should, where possible, be members of a relevant trade organisation, which has published a code of practice for the assessment of its members. You should also have regard to the statutory requirements to consult on long term agreements or qualifying works where costs to any service charge payer exceeds specific amounts.
Appointing an air con company to do plumbing?
Appointing a church boiler expert to write spec?
8.5 Some leases do not require advance payments to be made or specify a rate of payment which is out of date and therefore do not allow for recovery of the actual costs adequately. From a landlord’s point of view it is not a satisfactory system if all the bills have to be paid by the landlord without sufficient advance contributions from the tenants.
In such a situation the landlord may have to wait over a year to recover the expenditure incurred early in the service charge year and may have to pay for the cost of borrowing money to finance the costs. Sometimes the landlord cannot recover any interest charged on borrowings as part of the service charge.
In such cases, variation of the leases may be advantageous to both parties as, unless funds are available, services may not be provided. This will be
to the disadvantage of tenants. Failure to provide such services may constitute a breach of the landlord’s obligations, leading to legal action. If any of the tenants are bad payers, the landlord may wait even longer and risk failure to recover all the money spent. However, tenants have no obligation to agree to variation of their leases.
The annual maintenance cost as from the twenty-ninth day of September One thousand nine hundred and seventy shall he the total of all sums actually expended by the Lessor during the period to which the relevant maintenance account relates in connection with the management and maintenance of the Buildings and in particular but without limiting the generality of the foregoing shall Include the following: -
(a) The costs of and Incidental to the performance, and observance of each and every covenant on the Lessor’s part contained in sub-clauses (ii) (iii) (iv) (v) and (vi) of Clause 5 of this Lease.
(b) The costs of and incidental to compliance by the Lessor with every notice regulation or order of any competent local or other authority in respect of the Buildings or any part or parts thereof.
(c) All fees charges expenses and commissions (but not Including fees charges expenses or commissions on or in connection with letting or sales of any of the flats or other premises comprised In the Buildings or the collection of ground rents payable by any lessee thereof) payable to any agent or agents whom the Lessor may from time to time employ for managing and maintaining the Buildings.
(d) All fees charges and expenses payable to any solicitor accountant surveyor valuer or architect or other professional or competent adviser whom the Lessor may from time to time reasonably employ In connection with the management and/or maintenance or the Buildings (but not In connection with Lettings or sales of any of the premises comprised in the Buildings or the collection of ground rents payable by any lessee thereof) and in or in connection with enforcing the performance observance and compliance by the Lessee and all other lessees of flats or flats in the Buildings or their obligations and liabilities under this Clause 4 Including the preparation of the maintenance account and the collection of maintenance charges.
Disputes between occupiers
19.1 You should have clear policies and procedures for handling disputes between occupiers and complaints of nuisance from neighbours. The procedures you adopt for handling disputes should be available and their existence made known to both the landlord and tenants and should include response times for their various stages.
We’d love to see this policy..