Agents won't return RMC Company books

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    Agents won't return RMC Company books

    Our RMC removed our managing agents as Company Secretary on 1st April and in the notification letter we requested the return of the Company register/minute book etc by a signed-for service.

    Over three weeks later… no sign of the documents. The agent says they'll attend to it and then they don't.

    I'm sure I've read on here that this is a matter that can be reported to the police, but I'm not sure if that was a serious suggestion.

    Is there any other way of getting our documents? They aren't local to the building (4 hrs away).

    #2
    If the books belong to your company and the managing agent refuses to handover , you have a right to report to your local police station that they are stolen.

    It will push them to handover quickly or face charges by the Police.

    Comment


      #3
      I assume that the former agent has been paid in full and it is not exercising a lien over the books.

      In that case, it seems to be saying that it is not giving priority to you and I would reply by saying that you will turn up at the agent’s premises to collect the books and call the police if they are not handed over to you.

      Comment


        #4
        Make a report at the Police Station will save you 4 hours traveling there and 4 hours traveling back.

        Comment


          #5
          Originally posted by eagle2 View Post
          I assume that the former agent has been paid in full and it is not exercising a lien over the books.

          They are still our agent (for the time being), just not company secretary.

          Comment


            #6
            Perhaps the statutory books need to be written up to date. I suggest again that you say that you will call at their office and collect them. I am not suggesting that you travel 8 hours round trip, it is just more likely to receive a response, Sending a courier once the books are available makes more sense. The company secretary has a reasonable time to comply with a request but it does not appear that you are being given any priority.

            Comment


              #7
              Thanks to all for the advice. We have now retrieved the books. Now the fun begins…

              There appear to be numerous problems:

              1. The register of members is incomplete and out of date
              2. The charges register is blank for the first 15 years of the company. (Isn't it supposed to list all the mortgagees?)
              3. No residential addresses listed for directors
              4. No conflicts of interest recorded for directors (I know of at least one significant one)
              5. No minutes of directors' meetings
              6. No record of a company meeting ever taking place (we are supposed to have AGMs, according to our articles)
              7. Directors were allowed to continue in position long after ceasing to be leaseholders
              8. One director (the same one with the conflict of interest) was never a leaseholder

              What can/should we do about this? I don't want to turn this mess over to the forthcoming secretary.

              Should I inform Companies House?

              Would the RMC be justified in demanding a refund of some of the money we have paid for company secretary fees (£500 per year)?

              As I mentioned, the former company secretary is still our agent for the time being, so we still have some modicum of control over them.

              Comment


                #8
                2) The charges register for an RMC or RTM would normally be empty! Details of charges on leases might be relevant, confidential, operating information, but is not something required by company law. The main reason you might want to keep details of charges against leaseholders is because the lender is likely to want to pay service charges and enforce covenants in order to avoid the risk of forfeiture of the asset that is protecting their money, whereas the purpose of the charges register is to show assets that at risk from the lenders.

                (5) and (6) are the fault of the directors, although, with (5) I think there is a problem that few people now belong to the sorts of clubs and societies where this sort of record keeping was standard, so untrained directors fail to realise that minute are important, or know what an AGM should look like

                (7) This depends on the articles, e.g. for an RTM it would be perfectly legal. Also any other directors are as least as responsible as the company secretary. The company secretary doesn't even have to attend a directors' meeting.

                (8) Again perfectly legal for RTMs and many RMCs

                Comment


                  #9
                  Thanks.

                  Re (2), So the charges that are currently listed should be erased, from the sound of it.

                  Re (7) and (8), The company articles state that all members and directors must be leaseholders. The non-eligible director was signing contracts for the RTM with a company that he runs commercially, so surely he should have stated the conflict of interest.

                  Comment


                    #10
                    RTM Articles are set by statute. I don't think it is possible to modify them to restrict directors to be leaseholders.

                    Normally such contracts would be valid, but, in this case, assuming the directorship was invalid, he would have known that he was not authorised, so I'd say the contracts were not enforceable.

                    Comment


                      #11
                      Companies House won't be interested in the failure to hold AGMs.

                      As you refer to an RTM, the RTM articles were changed to remove the requirement for AGMs and it is one of the issues in the Law Commission's consultation on RTMs (closing soon) that AGMs are not required, so corporate democracy is inhibited. However, in any case, it is a civil matter between the company and its directors.

                      I suppose they might be interested in the lack of minutes, but you had better be sure you can document your attempts to get the meetings minuted as the directors, as much as the company secretary, will be responsible for the default. I suspect, though, that this is something used when throwing the book, rather than on its own.

                      Comment


                        #12
                        Sorry, the company is an RMC, not an RTM.

                        I'm wondering if we even need to bother with a Company Register then if no-one is accountable when it is not kept properly…

                        Comment


                          #13
                          The company and every officer in default, i.e. any of the company secretary and the directors that failed to take all reasonable steps to avoid the offence, are accountable, but Companies House generally works on the basis of trying for compliance, rather than prosecution, and simply does not have the resources to take enforcement action against small companies. I imagine most RMCs would be at risk of enforcement if they did that.

                          The risk in your position is that, if you were a director, you could have resolved the problem by maintaining many of the records yourself, so you are a candidate for prosecution.

                          It's unfortunately the case with a lot of law, and particularly leasehold law, that it relies on most people complying without the threat of enforcement, but it seems to me that more and more people treat the lack of effective enforcement of law as permission to break it.

                          Comment


                            #14
                            Thanks. The transgressions took place before I became a director so I wouldn't personally be worried about prosecution.
                            I do resent being left a mess to clear up, especially when we paid the agents £500 annually extra for company secretary duties! Surely the state of the books is justification to recoup some of that money?

                            Comment


                              #15
                              The statutory books should be kept up to date, the register of directors’ interests should be maintained and an AGM should be arranged if one is required.

                              Therefore the Company Secretary has not been carrying out his duties and the RMC appears to have a valid claim against the agent.

                              The RMC would not normally hold any charges but that is a matter of fact.

                              It is not unusual for directors to give an address for notices which is different to their home address.

                              Minutes of Directors’ meetings should be kept. It will be a matter of fact, who is responsible for taking minutes at the meetings. The Company Secretary would be expected to advise the directors of the need to take minutes if he was not instructed to do so.

                              The Company Secretary should advise directors if they are required to resign in accordance with the Articles.

                              Companies House is unlikely to wish to become involved, at best, it is likely to send a reminder to the RMC of its duties.

                              £500 per annum for acting as a Company Secretary of a RMC is unreasonable and a leaseholder would have grounds to challenge that amount before the FTT. The problem is that the agent will probably say that the fee was agreed with the RMC. The RMC should be able to recover some of the cost due to the agent’s failure to carry out the duties to a satisfactory standard.

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