Bruce Maunder Taylor, a chartered surveyor and member of ARMA's Council, pr

On your bike!

QUESTION We keep receiving letters from our managing agent telling us to remove Our bikes from the communal areas on health and safety grounds or they will be removed. Can they do this?

ANSWER Yes. The common entrance hall and staircase are the fire escape route for the block of flats. If there is a fire (for instance) at night and all the lights go out, the occupiers of all the flats have to be able to get out of the building and, if bikes or other obstructions are in their way, then there is an obvious risk. If the bike falls over or a small child tampers with it nd it falls on top of the child, there is an obvious risk. The problem from the managing agent's point of view is that, if any personal injury results, even though it is your bike, the managing agent and the landlord (or residents' management company) can be held to be responsible as well as you. Therefore, the managing agent can remove the risk from the building (after having given you reasonable notice) or can take action against you such as an action for breach of lease. From your point of view, you may care to find out how many people in the building want to have somewhere to store bikes and if there is sufficient support for a proposal, to ask the managing agent to provide a safe bike store somewhere on the site.

Advice on freehold flats

QUESTION We already own our freehold, where can we get advice about running our block? Everything is about leasehold, nothing about freehold. What are the ifferences/benefits and where do we find out more about the requirements/administration of running a residents' management company for freehold flats?

ANSWER It is a common misunderstanding that, after flat owners have acquired the Freehold interest in their block, they become freeholders. In most cases, the freehold interest is acquired by a company of which each participating leaseholder is a shareholder or a member. They keep their lease for their flat and, alongside that, they own one or more shares or membership rights in the freehold-owning company. They do not own a freehold flat. In many cases, they then take steps to extend their old leases to 999 years duration, and often eliminate their ground rent payments. They still remain as leaseholders of their individual flats. The reason for this is that the leases set out all the important rights and obligations which each flat owner has, both in relation to the management of the building as well as in relation to their rights and responsibilities to their neighbours. The Land Registry will register the freehold interest in up to four names so that, if a small block (typically an old house converted into two, three or four flats) acquires the freehold interest, then each flat owner is also named as one of the freehold owners. But, importantly, that does not eliminate the leases for the reasons given above. The misunderstandings about ownership have led to some extremely distressing cases. For instance, in one case the flat owners decided that they did not need both a freehold company and a management company, failed to make Companies House returns on the management company, which was then struck off, and found that they could only sell their flats at heavily discounted prices because, in practice, there was now no longer anybody with the right to collect the service charges, the duty to carry out the management services (neither of which was the right or responsibility of the freeholder), purchasers were advised not to buy, and mortgage lenders would not lend. It is fundamentally important to understand how each flat owner needs an established and accepted documentary basis of enforcing their rights and having their obligations enforced against them, if enforcement ever becomes necessary. The alternative is to agree to convert to Commonhold (see the Commonhold and Leasehold Reform Act 2002) but for that every flat owner has to agree and very few blocks of flats in the whole country have

converted. Therefore, the management laws, practices and procedures of running a block of flats of which the flat owners effectively own or control the freehold interest is no different to running a block owned by an outside landlord (except for one or two minor exceptions which would require a full page article to explain and make no discernible practical different!).

Data protection

QUESTION I recently had a conversation with another flat owner in our block who said because I had not paid my service charge the internal decorations cannot be done. I have just been made redundant and cannot afford to pay. But under Data Protection, should the managing agent have told the other lessee that I have not paid?

ANSWER This is a difficult and sensitive subject. Different managing agents have different policies. Under Data Protection legislation, a managing agent cannot name and shame in an open manner. However, the lessees are entitled to know that work cannot start because not all payments have been received, and it is often relatively easy for them to work out for themselves who has paid and who hasn't paid. If a managing agent has an open and transparent policy that lessees may make an appointment and go to their office to inspect the accounting documentation, it will not be difficult for them to find out who hasn't paid. If your block is managed by a residents' management company, it is certainly possible for the directors, complying with their duty to act in the best interests of the company, to find out who has not paid and what recovery action is being taken: it is not necessarily the managing agent who has passed this information to other lessees. Far better from your point of view for this matter to be addressed directly with the people involved rather than that solicitors or others are instructed resulting in an additional charge against you for recovery costs. It may be a good idea for you to take advice from the Citizens Advice Bureau or somebody else who might be able to help you.

Information needed

QUESTION I live in a Victorian block of converted flats and have been reporting problems with the roof and gutters repeatedly but the managing agent appears to do nothing. I cannot find out if a builder has been instructed, who that builder is, and have the opportunity to chase him up and find out when something is going to be done. What can I do?

ANSWER Complain directly to the Landlord, or to a Director of the Management Company, or a senior person at the Managing Agents. It is a bad idea to rant and rave, as well as a bad idea to withhold your service charge payment properly due. It is a good idea to be firm but courteous. Give some idea of when the trouble started, exact details or some idea of how and when you have complained and, in the vast majority of cases this will resolve the problem. When not, some action must be considered. Formal action costs money, which you may not recover. The object is to get a result without getting embroiled in litigation or Tribunal references. Step One is to take a few relevant photographs, set out your complaint in writing, include the relevant dates of when the problem started, when and how you complained. Make it clear that, if there has to be litigation, which you do not want, this letter and the attached photographs will be used in evidence. It may be incompetence, or that there is no money in the service charge account to pay the costs, or that major works are necessary and there will be a time delay for consultation procedures, etc. Use the Managing Agent's Complaints Handling Procedure (assuming they have one), which defines time limits for responses to be given and ends up with a reference to the Ombudsman which, if there is a finding against the Managing Agent, can then be referred to the Managing Agent's professional body (if the Agent belongs to one) and might lead to disciplinary action by that professional body against the Agent. Practically all cases will have been resolved by some means during that process but, in the unlikely event that there is still an issue, or that you have a resultant claim for unnecessary damage caused to your flat by the delays, you may find it necessary to litigate. If possible, keep that within the Small Claims Court procedure (claims not exceeding £5,000) and handle it yourself. If you have to go to solicitors, please remember the old adage that no-one wins at law, it is merely that one party loses less than the other party.