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Help and advice


success. It is likely that a successful challenge would then be followed by applications for compensation and you would have to have a very good explanation of why you bought this flat in the first place, knowing of the problem, to stand any chance of persuading an LVT to exercise their discretion in your favour.


Question: This query concerns a development of six houses and two flats. The houses are owned freehold and the flats leasehold. The developer set up a management company and the deeds require that an owner of each house and flat is a director of the company. However, interest has dwindled and there are currently only two directors.


It would seem that despite specific


reference within the property deeds requiring that all sales need to be ‘approved’ by the directors with various considerations over any debts outstanding from the existing owners, the transfer of the directorship etc, this is totally ignored by solicitors and when new owners move in these arrangements are totally unknown to them. These owners have declined to become directors or involve themselves in the management group. What is the liability for a solicitor advising a buyer about the lease aspects of a property as set out in the deeds, including the financial aspect of the management group, insurance, etc.? What is the requirement for owners to become directors?


Answer: The contract between a solicitor and his client is particular to each of them and the management company cannot claim that the conveyancing solicitor has any duty of care to the company. A new owner may tell you that his solicitor has said nothing about the contents of the deed or lease in regard to these matters, and that may have happened to one or two.


It is most unlikely to have happened in all


cases and most solicitors are quite diligent in telling their clients about such matters.


If the present arrangements work with two directors, why


do you want more? It was Winston Churchill who said that the best committees were those of two people, one of whom was permanently absent.


of an obligation in a deed or lease, the company will have to take enforcement action which costs money, time and effort. If successful you gain a reluctant and possibly rebellious director.


If you want to oblige somebody to become a director because If your concern is


that some people are not contributing their share of the costs, then you take straightforward recovery action, usually through the company’s solicitors.


It is not uncommon for residential management companies


to fail to make their annual or accountancy returns, or to be unable to fill the offices of directors and secretary, resulting in fines from Companies House and eventual striking off of the company. That can have severe consequences in that there is no one responsible for maintaining the common parts and common services, and no one with the power to charge service charge funds for doing so. In such circumstances, it is not uncommon for properties to lose marketability and market value, and opportunities for speculative investors to buy at discounted prices with a view to turning a profit. For so long as you own one of the flats I advise that it is in your best interest to keep this management going, despite apathy from most other people: once you sell and move away it will no longer be your problem and, yes, those who remain may well find themselves in a difficult position.


Question: Two blocks of 32 flats built in 1968 have had a Fire Risk Assessment following The Regulatory Reform (Fire Safety) Order 2005 The risk assessor has advised the provision of Fire alarms and emergency lighting:


a) If the 2005 Order makes it legally binding to have fire alarms and emergency lighting, why do so few other blocks not have it?


b) Estate agents advertise flats in similar blocks with no alarm and emergency item: how is that possible?


c) Are volunteer directors at risk of prosecution by not doing such work in their blocks and by not having Health and Safety checks done?


22 www.flat-living.co.uk


Answer: The 2005 Order requires a Fire Risk Assessment to be carried out and it gives the Fire Authority policing powers. The Fire Risk Assessment is one person’s opinion of the risks at your block of flats. As with all judgements about anything in life, the reasoning for the opinion is important and often more important than the opinion itself. It is then the responsibility of the Board and the managing agent, to consider that assessor’s opinion and decide on what action, if any, to take. If the decision is to take no action, then that decision must be supported by adequate reasoning. As you say, there are many blocks of flats at which, in the particular circumstances of their block, a reasoned decision has been made not to install fire alarms and emergency lighting: possibly because the fire risk assessor was of the opinion that either there was no risk or that any risk did not justify that installation. You are not alone with this problem. In another block of flats I am


aware of, the fire risk assessor advised that the alarms must extend into each individual flat with a ceiling fitting in their hallway; that work has proceeded at considerable cost and there are major issues arising from it.


If an alarm and emergency lighting are installed, it is a legal


requirement to service and maintain the equipment. There is no risk of prosecution for not installing a fire alarm but there is the potential for legal action or prosecution if a fire alarm is installed and is not regularly tested and maintained. Experience indicates that the opinions of fire risk assessors on such points vary enormously. The cost of installing and then maintaining the fire alarms can be a substantial cost and there must then be a procedure for what happens if and when the alarm does go off. Some blocks – eg, concrete floors, masonry walls, high quality fireproof doors, etc – have a stay put policy; others have an evacuation policy. How does your Board/managing agent propose to manage an evacuation policy in the event of an emergency? Suppose the alarm goes off in the middle of the night? Suppose some occupiers are disabled or that it is winter with freezing weather outside? Who is responsible for checking that the building has been evacuated, who is responsible for people who might be exposed to severe weather conditions in the evacuation area, and who is responsible for allowing people back into the building? Has the fire risk assessor considered these and other important points in setting out his reasoning for giving his opinion to install a fire alarm? Your point about the estate agents is interesting.


I doubt that


there are many estate agents (if any) that even ask to see the Fire Risk Assessment of a block of flats (or the action plan which follows the assessment) when taking instructions to sell a flat. By and large, they sell what they see. They do not have any legal obligation to, in effect, carry out their own Fire Risk Assessment on taking instructions. There is a Government project underway to write Fire Safety


Guidance for modern purpose built flats (expected in Summer 2011) which may help. See News, pages 7 – 8 for details.


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