One of my favourite parts of the much-repeated-to-the-unemployed 1990s TV show Frasier is Dr Frasier Crane’s many run ins with the “Condo Board” – a self serving clique of do-gooders-cum-residents who are in charge of the management of his condominium … a posh name for a block of flats… who are forever frustrating Dr Crane with their "mismanagement"* ... 

High and low rise flat living is a social phenomenon sadly neglected in the modern media.  Apart from Dr Crane I can't think of anybody else who's manged to successfully tackle the subject except Mary, Mungo and Midge and we can't see that again to talk about it as one of Mary's toys is a conspicuously un-PC golliwog...

Anyway ... it is one of the crowning achievements of my life that at the age of 42 I have risen to the lofty political height that constantly eluded Dr Frasier Crane during his show’s 11 year run.  I am a Director of Management Company for a block of flats somewhere in Croydon.  Where exactly I shall not say because I don’t want all you nosey readers knowing where I live.

“How?” I hear you ask, “did Mr Miller ever get himself elected to or get anyone else to elect him to any position of political or social responsibility? Let alone one that eluded Dr Frasier Crane for well over a decade.”  The answer dear reader is, of course, that no one else wanted it.


The upper middle class world that I inhabit is full of property owners all under the delusion that if they follow the advice of Mark Twain


everything will forever be tickety boo.   I am one.  Well, I am half a one.  I am a leaseholder.   That’s sort of half a property owner.  Under the leasehold system a never seen freeholder owns the actual land and instead of renting property weekly or monthly the individual leaseholders own long leases on small parts of the building.  So a bit like the feudal system.  

The reason I was able to buy the flat was the lease was running out … and thus it was on the market cheap.  So I bought the flat and, after engaging in a herculean volume of paper work and throwing money at my local solicitor, I was able to exercise my “right to extend the lease”.   As a result I can now live here until I am something like 182 and live only in constant fear that medical science will extend my lifespan to 200.

Being politically disengaged and disinterested in exerting power over other people beyond the level of half running a semi-pro comedy night badly for many years I refused to take any notice of the political organisation or lack of it that called its self the Management Company.  Apparently in order to stop everyone just sitting round having pointless arguments there needs to be a Management Company and in order to do the day to day administration a Managing Agent Company (terms vary) to do the day to day paperwork. 


Now hear we hit a problem.  One of the great things about being a comedian or a comedy promoter is that one has what is nowadays quaintly called “a platform”.  Treated shabbily by a service company, department store or a potential or past employer? … never fear you can take to the stage (or the internet) and vociferously slag them off to all and sundry and they may just stop behaving in a silly way out of fear.  On the downside when you’re looking for a day job and people google you and find out you’re a comedian that’s not always helpful to your employment prospects because why employ anyone with an independent mind who wont totally be your slave …?  But swings and roundabouts.  However, when it comes to talking about one’s home one hits a snag.  If I tell you too much you’ll work out where I live and then I will have no privacy.  However, it has come to the point where I thought … erm ...


So without revealing where I live … suffice to say I live on the 2nd floor.  The flats are 3 stories (10 flats and 2 commercial units).  In these two blocks of flats there are two communal stairwells.  The leaseholders (12 of them collectively) have a legal responsibility under the lease (through the Managing Agent Company) to redecorate the exterior of the building every 4 years including painting the wooden windows both in these halls and of the individual leaseholders flats.  However, the leaseholders are responsible for their own windows while the Management Company is responsible for the communal windows. 

Simple you might think.  So for many years I just paid my service charge on time and watched a large sum of money disappear into the digital banking system in the hope that eventually someone would paint my wooden windows fast enough to stop them falling out too quickly.  The Management Company sent me lots of paper and I carefully filed it in the recycling bin as is my wont…



Eventually however, my windows were not painted and the Management Company got fed up and sent me a letter saying that since absolutely no one had come to their one physical meeting a year (the AGM) they would personally fine me if my arse didn’t go out the house.  

This was not an accident.  As an irresponsible adult I was quite happy to leave all responsibility to someone else but I discovered that while I couldn’t be arsed in my absence many of what would have in the past been the other responsible adults available to sit on the board seemed to have disappeared. 

This is in a large part down to the explosion of Buy-to-Let Landlords – chimerical people who own property but seem never to want to actually want to live in it.  Unable to afford freehold property to relet many had bought leasehold property to relet - because it is cheaper.  Of course not all absentee landlords are as disinterested and lazy as I am when it comes to such things but many are far too busy investing their inherited wealth wisely to do tedious things like turn up for an AGM. 

Thus whereas Dr Frasier Crane found himself surrounded by other angry residents our resigning and burnt out Directors had gradually found themselves surrounded by empty chairs in a  cold church hall.  So ... it was largely due to other people’s apathy that I arose to the dizzy political heights of a Director of the Block in the same way that I rose to the dizzy commercial height of Managing Director of London’s 2nd Worst Comedy Club.  I wasn’t the best candidate for the job I was about the only candidate for the job.


However, I digress.  The central mcguffin of this story is that wooden windows are not immortal.  Even when regularly painted in a four year cycle they deteriorate.  The average lifespan of such windows varies according to the type of wood used and how it is treated.  If you were to ask me to guess I would say that the average lifespan of our communal windows was 25-30 years (the blocks are over 30 years old).  It was clear by the fact that some of these windows would not close due to the wood having swollen that this lifespan was nearing a conclusion so we asked the Managing Agent Company who for the sake of avoiding litigation I shall call Jarndyce and Jarndyce Ltd to get some quotes for the replacement of the windows. 


There were other factors in this decision too.  When the flats were built the windows of the 2nd story would have been painted by a man on a ladder risking his neck … but due to Heath and Safety (“which is not political correctness” – Stewart Lee) this is no longer deemed legal and sensible.  Thus full scaffolding has to be erected for such maintenance.  While this has made the HSE industry and the scaffolding industry intensely happy and no doubt saved a few lives the residents who have to pick up the bill for the scaffolding are not so happy.  It seems that if you live in a 3 story house the responsibility for the workers not breaking their necks is the contractor’s problem but if you are a block of flats you are classified as a business and then it is your problem … although in either event the person who needs the work done ends up paying the increased insurance costs.  Oh well, as the 6th Dr Who once said, “Who else is there?”

Of the 4-yearly-that-we-couldn’t-afford-to-do-four-yearly-so-ignore-the-lease external redecoration costs approximately 60 to 70 per cent of that cost had become the scaffolding.  Thus it was decided that if we could replace the windows and soffits with UPVC then we wouldn’t have to paint the windows as often and we could cut down on redecoration costs.


Now you may so far have found this article moderately confusing (partly because the subject is so boring I could hardly be bothered to write it let alone spell and grammar check it) but it gets more so.  Adding to the confusion is that any internal or external works above a certain total price tag attempted by the company have to be done within a Section 20 process…

http://www.lease-advice.org/publications/documents/document.asp?item=19

…superficially in order to prevent the leaseholders being ripped off by management companies who decide that what they really need is a swimming pool in their back garden but in reality a strange mechanism that seems to keep a large bureaucracy at work. 


If the Section 20 process which involves informing the leaseholders at specific intervals seems to go on too long then…

http://bradysolicitors.com/section-20-consultations-is-there-a-time-limit/

…the cycle has to start again because all the bids from the various contractors become out of date. Due to the fact neither the board or the Managing Agent Company had the first clue about project planning this often happened several times over with the result of nothing ever reaching a conclusion.

Adding to the confusion there are only certain times of the year (about 5 to 6 months) when the external works or parts of them (for example painting) can be done – you can’t paint the exterior in the winter – so if the bidding process starts at the wrong time or over runs or it turns out that there isn’t sufficient cash in the reserve fund to do the exterior redecorations then the whole tedious process has to start again... and again ... and again ... and ...

Now you might think that the Management Agent Company would advise the Management Company when their Section 20 processes started that there were possible impediments to completing it in a reasonable timeframe.  Or you might think they might advise them that they simply didn’t have the financial resources or would not be able to accumulate sufficient financial resources to complete the process in the desired timeframe.  You may very well think that but I couldn’t possible comment.   However, here is some correspondence I received during these mental peregrinations that may shed some small light on the problems the intersection of these too timetables might create for future suffers of the Section 20 process timescale and costing nightmare…


Having suggested to the Managing Agent Company that we might replace the wooden window with UPVC ones they enthused that this was indeed a good idea and set about getting quotes for the external painting and the replacement of the communal windows.  Only when we’d got significantly down the path of a Section 20 process did they feel inclined to write as follows…


… yes you did read that correctly.   Apparently wooden window are meant to be immortal and last forever and there is no provision in the lease to ever replace them.  Replacing them would clearly be a violation of the lease and leases are inviolate.  Ironically (or perhaps not) the leaseholders’ advice service is called lease…

http://www.lease-advice.org/

…so I wrote to them and then back to the Managing Agent Company…

From me to L

“The advice appears to tell you  to pass a company resolution on the matter and then ask if we would act on it, the answer to this in short would be no and the reason for this would be because the lease is quite clear about the fact that “repairs” can only be made.“

I am at a loss as to understand why your solicitor says that the lease is clear but LEASE say the lease is defective. What is the real problem here?  Is it that [REDACTED] would be financially liable…?

What about my plan to take out an Insurance Policy against someone taking us to a Tribunal for Lease Violation ... Such policies do exist?  Could you research this?

It may not actually be that expensive – as I imagine there are a limited number of Freeholders mentally deficient enough to sue themselves.  So the risk involved in such a policy would be quite small.  Other than that we need to go to the First-tier Tribunal (FTT)

Which requires the consent of at least 8 leaseholders

I think therefore if I have a go at the CAB and see if we can do this without massive legal fees being involved and get them to break the steps down for us.
We may be able to then have the long awaited AGM and see if we can get 8 leaseholders to sign something...

“Alternatively, an application may be made to the First-tier Tribunal (FTT) for an order to vary two or more leases in the building in the same way, in order to correct the same defect under the provisions of section 37 of the Landlord and Tenant Act 1987.  Where the application concerns less than nine leases, then all (or all but one) of the parties concerned must consent to it. Where the application concerns more than eight leases, at least 75% of them must consent to it and it must not be opposed by more than 10% of the parties concerned. The ground for the variation is that the object sought to be achieved by the variation cannot be satisfactorily achieved unless all the leases are varied to the same effect. More information about applying to the FTT to vary leases can be found at: Lease FTT LINK ”

I did give the forms for a lease change a cursory read but they were more complicated than signing on and I have fallen off the passive aggression orobous… however I will press on with this.

Perhaps Mr [Redacted] would like to read them too and share his thoughts actually getting a lease change might not be as painful as it seems

Cheers

Anthony Miller

However such simple solutions were too simple for the Managing Agent Company who responded thusly…

Anthony,

The lease isn’t defective, it’s a repair and maintain lease which doesn’t give the option to replace.  This doesn’t make it defective and is actually quite a common type of lease.  Yes, we could be financially liable as well as yourselves and in addition to this, the Tribunal, if ever it were brought to one, would almost certainly penalise us.  From experience, you can’t take out an insurance policy knowing full well that you have breached the terms of the lease and are liable.  This is why your Directors and Officers insurance would be invalid if you decide to go ahead with going against the terms of the lease and another leaseholder took legal proceedings against you for it.

Kind regards

L

Isn’t is wonderful to have so many people out there prepared and ready to look after one’s interests by making sure everyone sticks to the rules as rigidly as Mr Gradrind would.  I responded…

L,

So how come if the lease is not defective LEASE say that
“On the face of it the lease is defective and where a lease is defective, it can be varied voluntarily by mutual consent if 100% of the parties agree to the proposed variation i.e. all the leaseholders, the landlord and management company must agree. “

Are you accusing them of talking rubbish?
What is the definition of “a repair”? 

If we replace the windows but re-use some of the glass are they not the same windows … Like trigger’s broom?  If we leave the windows to fall out because they are rotten is this not also a leasehold violation?  If we replace the windows because they have rotted is this not a repair?  I feel we are in Trigger’s broom territory here?

Besides which we regularly violate the lease by not maintaining the property to schedule but you never seem to have any worries that we might be sued for inactivity? Why does replacing the windows bother you more than any other lease violation.

How do we know, if we only have your advice to rely on and LEASE’s who “do not give legal legal advice”  If you are telling us the truth when your solicitor will not put their name to their advice? and how can we rely on the advice of a solicitor who is in your employment.

If we go to the leasehold tribunal and ask them if we can apply for a lease change presumably they would be able to tell us independently without paying for independent legal advice IF the Lease actually is defective or not?  After all that is what Tribunal services are for to supply legal help to those who cannot afford it.

I will refer your comments back to LEASE and see what they say and ask the Leasehold Tribunal service what they say presumably the Tribunal cannot fine us for violating a lease which they themselves have allowed us to vary.  It may be there is a reason LEASE say the lease is defective that we are all unaware of for example some new piece of legislation … while they are not solicitors I find it odd that they should be giving at vice that is according to you completely misleading so I think they should be told.   I’ll get back to you on this.
 
Cheers

Anthony Miller

Now you might think at this point that common sense would prevail but it is, of course, the prerogative of the middle classes to protest that they are deeply upset emotionally whenever anyone dares to suggest that they might be being less than totally sensible or open minded or straightforward...

Anthony,

Firstly, I would like to point out that I feel that you are becoming quite accusatory as the e mails are going on and actually quite rude.
I feel that we are going around in circles here and you are obviously not happy with the advice that I am providing you and do not accept our stance on this matter.

As your agents, we have a duty to advise you of the problems or legislative difficulties you have in respect of managing and maintaining a building, this is what you pay us for and we direct you and advise you in the best way possible in order to ensure that there is no come back on you, or us for that matter.

No, I am not accusing LEASE of anything. However, a lease is not just simply “defective” if there is something in it that you want to change.  Because you may not like the wording of the lease, it doesn’t make it wrong.  A repair is exactly what it is, repairing what is already there, not replacing it entirely, especially with something that is not even on a like for like basis.

There is a difference in spending other peoples money for something we are not legally allowed to do, rather than deferring cyclical works, but yes, I agree that this is also a breach of the lease and should be addressed, so the works should be progressed without the replacement of UPVC windows. 

If you don’t believe that we are telling you the truth or just simply want to ignore it, then perhaps you should approach someone else. As I have explained to you, we have an in-house solicitor who provides us with advice, not our client.  Our stance on the matter is as I have explained, we will not oversee or authorise works on your behalf that we know are in breach of the lease.

As your agents, we would advise that you do one of the following:
1)    Repair the current windows in accordance with the lease as it currently is, or;
2)    Have the lease  varied at the Tribunal as what has already been recommended by LEASE as once the resolution has been passed, this will effectively have changed the lease.
 
This way, there will be no come back on you as Directors financially now, or in future.
 
Whilst you may not think it, we do actually have your best interests at heart.

L

While it is, of course, always touching to know that someone else has one’s best interests at heart – particularly public companies – I felt that it would be sensible to respond with the somewhat cynical reply below…

L,

Thank you for your amusing correspondence.

“No, I am not accusing LEASE of anything. However, a lease is not just simply “defective” if there is something in it that you want to change.  Because you may not like the wording of the lease, it doesn’t make it wrong.”

The thing is you are accusing LEASE of being wrong / incompetent in their advice. If you read what they have said and what you have said - you cant BOTH be right.  Although you have been talking all about the houses rather than express it in those terms.  This is what you are saying.  Maybe they are wrong.  I don’t know… they didn’t promise that their advice was “proper legal advice” or completely inviolate.  But if this is your assertion I have to be sure before I go back to them to double check that they stand by their advice or not.  Or if they can offer more clarity.  The big difference it would make if they are wrong I suppose in practical terms (apart from money) is the number of people we would need to agree to the lease change.  8 if it is a clarification.  12 if it is alteration.  If I remember correctly.

Since we have to go to the Tribunal anyway if we want a lease change it seems to me that… I could ask them what the process is for clarification and see if we can obtain any free advice this way. This may be an option…

I have to say too that yes, I believe that the fact that the solicitor you consulted works for you directly and not for us may present a conflict of interest.  There is nothing immoral in this but  it is surely obvious to all but those with a business acumen bypass.

The only other real solution to this is for us to seek the advice of an independent solicitor.  But who wants to go there if they don’t have to… If you are offended by the idea that I don’t completely trust you  I am sorry I don’t see what is wrong with not trusting people... Surely only a fool completely trusts people they do business with?

Cheers

Anthony Miller

PS Erm … my suggestion about reusing the glass is not sarcastic.  It is a common business solution
Known as “Trigger’s Broom” …

L responded …

I’m afraid that I’m going to have to disagree with your first comment in respect of being “misguided”.  We are regulated by ARMA and have to follow the RICS code of practice and if we were to just go ahead as you want with the replacement windows with UPVC then we would clearly be breaching the lease, which in turn would ensure our breach of ARMA and RICS guidelines.

Whilst I completely understand yours and Anthony’s points about this being the best way forward overall and common sense, the lease doesn’t permit it and ultimately the lease is the document which binds us all.  This lease, is something that both yourself and Anthony signed when you purchased the property and by that you have agreed to abide by its covenants.

There are many leases which only permit maintaining and repairing for the very reason that rogue freeholders can enhance assets by installing things like swimming pools, or double glazing throughout to promote profitability at the cost of leaseholders.

If you are not going to approve the redecoration as it should be as per the terms of the lease, then that’s your instruction, but again you would be in breach of the lease as it needs doing.

Whilst you may request that we instruct an independent solicitor to draft some paper work I’m afraid that we will not knowingly instruct a solicitor to provide a document which will ultimately breach the lease terms.  However, if you wish to instruct a solicitor directly, then you may do so.

Kind regards

L

H the Technical Officer of the Managing Agent Company on the 13th of May 2014 wrote the following legal advice:

The role of the managing agent is to adhere to the terms of the lease on behalf of their client, the landlord. If their client instructs the managing agent to ignore the terms of the lease, the managing agent has a duty to advise their client of the implications. In the example you give, the consequences may be that the costs for the work are not recoverable and therefore the landlord will be liable. this is the case even if everyone agrees at the time, there is nothing to stop someone changing their mind and not paying.

The RICS Code was approved by the Secretary of State for England under section 87 of the Leasehold Reform, Housing and Urban Development Act 1993.The Code applies to leasehold properties where a service charge, which varies according to the expenditure, is payable, and the landlord is not a public sector authority or Registered Social Landlord. As a member of ARMA, the firm endorses, accepts and undertakes to comply with the Code. Copies of the “RICS Service Charge Residential Management Code” can be obtained from the RICS on T: 0870 333 1600 or W: www.ricsbooks.com

Shortly after this L dematerialised to be replaced by someone else who has now been replaced by someone else … with a bit of luck I’ll burn them out too after a while.  I have cut some of this correspondence down in length if only to counter my own boredom and in an attempt to keep my own sanity...

Okay so I decided the time had come to play at being middle class and as Vinnie Jones would say “ask my solicita”… he wanted £500 so instead as usual I used my other forms of legal advice such as Messers Internet Forum and "Ask a Solicitor whoring themselves on an internet site because no one can afford their upfront fees" and the CAB.  I can't remember his advice but it was something like:


To which the answer is that when absolutely forced into a corner on the issue they would literally "refuse to act" and put us in a position where our only option was to sack them.  In the end the Management Agent Company caved in and decided that actually, yes, we probably could change the windows if we got enough people to vote on it and went to the First Tier Tribunal.  When I proceeded with the help of the CAB to find the correct forms the Managing Agent Company decided that actually going to the FTT was taking it a bit far.  So instead they agreed to draw a line after a consultation with all the leaseholders and the freeholders.

Eventually they suggested a local firm to replace the windows and got a quotation off them.  I got quotations off other companies.  However, when it came to actually running the Section 20 process again …suddenly the company that had quoted for us before decided that …now they didn’t want to replace the windows for us.  This seemed odd so I decided to check with them myself and they said that they would still be interested but they’d been asked to quote for things that they didn’t do like paint the exterior of the building and it had all got confused.  Conversely when the Section 20 process restarted the painters of the exterior who had put in a bid last time had refused to bid this time … I thought this was odd so I asked the Managing Agent Company.  They said the contractors had "refused to bid" but having met the man who runs the company several times on my way to the station each morning I found this hard to comprehend since he was always hard selling me his services.  So I rang them up and they claimed there had been some falling out which may or many not be true.  "Hearsay!" - Judge Judy.  And on and on and on it went … until… frankly even I’ve lost the plot but I’m sure if I emailed the Managing Agent Company they would reply with a ludicrously comprehensive explanation of it all compiled at my expense.

Eventually when we threatened to sack the Managing Agent Company if they didn’t manage to split up the contract between the general external decorations and a specialist replacement window contractor and actually complete the Section 20 process and eventually … they did.  This still seemed to involve the Directors signing a "legal waiver" of some kind.  I have no idea what this waiver meant or why it needed to exist.

Now I know what you’re thinking – Why didn’t you just sack the managing agent company?

But unfortunately it isn’t that simple… one reads endless stories of people who have suffered even greater hardship and even more twaddle.  At least we have a "right to manage" whatever that means?  What does it mean if you don't even have that...?

This is really just a small volume of twaddle from my Managing Agent Company who claim to be regulated by the ARMA …

http://arma.org.uk/

…of which they claim to be a principle member… other Managing Agent Companies claim to be regulated by Royal Institution of Chartered Surveyors and by the Institute of Residential Property Management …or something.

The thing is I’m quite bright ...although obviously I don’t have a 2:1 which I believe these days is like admitting to having the mark of Cain …. so I can just about deal with this …but what happens to the elderly, the confused, the vulnerable…?  People who can’t handle dealing with the stress of what is effectively running another small business on top of their normal everyday life?

Honestly if Pear Shaped wasn’t closed because of refurbishment and because Brian has to keep going out to Ireland to deal with his recently deceased brother’s estate I wouldn’t have time to pursue this to any conclusion at all.

Normally one would say something like the problem is down to a lack of regulation but I’m not sure that the number of regulations is exactly the problem…

Still, it’s kind of amusing.  I particularly enjoy the level of staff turnover at the Managing Agent Company (one wonders if they don't all hate their jobs secretly) and the fact that everyone signs their emails with their degree qualification.  I'd hate to be patronised by someone who wasn't qualified.  I’m just waiting for them to add their classification and postgraduate qualifications in bleeding money out of the middle classes…

*Well, I say mismanagement …it may of course simply be that what Dr Crane couldn’t cope with was not being in total control of every single aspect of his environment.