Advice & opinion Q & A
Bruce Maunder Taylor provides answers to your questions
Voting by proxy – what about the rules?
QUESTION: I am a flat owner in a large block of flats where there is a Registered Tenants Association and the landlord, a large public institution, generally adopts the decisions and requests of our committee on management and service charge issues. Many of us see the committee as a self-appointed and self- perpetuating committee. There is an annual meeting and the “dominant” committee members tend to come armed with a bundle of proxy votes and make sure that they get the results they want. The association has a set of rules and constitution which had to be provided to the landlord before it would recognise us, and there is no reference to proxy voting in the rules. Voting is by a show of hands or, if a majority demand it, by ballot. A group of us has been to see a senior person at the landlord organisation and we have been told that there is a Registered Tenants Association and we must sort out our own
problems through the rules and constitution of the association. Do you have any advice?
ANSWER: The first point to make is that you are not a limited liability company (like a Residents Management Company or a Right to Manage Company) which are governed by the Articles of Association and the Companies Act legislation. A Registered Tenant’s Association is an unincorporated association which is governed by its own rules and constitution which have been approved by the landlord prior to recognition.
In 1970 there was an interesting case in the High Court (which is therefore treated as an authority in the lower courts) concerning “The Fulham and Hammersmith Rate Payer’s and Resident’s association”. Two factions had developed in the committee of the association, and no doubt in the association itself. One faction, in the minority on the committee, had been attempting to recruit members to the association, and the other faction had been meeting what it regarded as a threat, by taking various procedural steps. One of the main
issues was about the use of proxy voting. The High Court judge had no difficulty in disposing of the matter holding that it is plain that at common law there is no right to appoint proxies: Harben v Phillips (1883). The judge expressed himself to be quite clear that there was no provision under which proxies might be used.
The main reason for the existence of RTAs is to provide a forum for discussion and a means of developing co-operative community spirit. In my experience it is commonly the case that meetings are held without anybody having the slightest idea what the rules say about the proper conduct of meetings and voting rights, and that applies to both limited liability company meetings as well as unincorporated associations. The people controlling the meeting all too often fly by the seat of their pants, imposing their own sense of fairness, often in a well-intentioned manner, but occasionally quite deliberately trying to guide the members present at the meeting (in person or by proxy) like sheep into the particular pen which the chair person or the committee wishes them to occupy. When voting is manipulated, or pressure tactics used behind the scenes, the risks of disruptive or rowdy meetings increase and can often lead to the direct opposite of a co-operative community spirit being developed.
My advice is this: if you are expecting trouble, read and fully understand the rules governing the conduct of the meeting before you even send out the notice concerning the meeting. Bring a copy of the rules (or Articles of Association) to the meeting and make sure that the meeting is properly conducted in accordance with the rules. If you are not expecting trouble, bring a bottle or two of community spirit and a few glasses!
Building a concensus
Bob Smytherman, chairman of the Federation of Private Resident’s Associations (FPRA) comments: “The importance of any Resident’s Association is the democratic principle and therefore building a consensus for your point of view is essential.
Q&A 28
I suggest your association would hugely benefit from membership of the FPRA which has a number of specialists on hand to provide you with personalised legal advice ahead of your meetings. We are always available to review both the leases and articles of association or constitution of our members to help you plan well in advance of a meeting”. To find out more about the FPRA go to
www.fpra.org.uk
Bruce Maunder Taylor is a chartered surveyor and member of ARMA's Council If you have a question for Bruce, contact him at:
info@flat-living.co.uk Issue 21
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