Does the owner of a flat have to tell the Right to Manage company who rents his flat

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Does the owner of a flat have to tell the Right to Manage company who rents his flat

    We have started a RTM to help reduce the costs to all our members. One of the owners is a Professional Landlord and has rented out his two flats. He refuses to tell us (the RTM Company) who he has let his flats to. Is he required under the Landlord and Tenant Act to advise us who the Tenants are or is it really a GDPR issue? Is he hiding behind GDPR so he does not have to tell us. We believe that he has a House in Multiple Occupation as there are 6-7 people at this flat.

    #2
    The general answer is no, but many leases require this information to be provided. I don't believe that the GDPR would override a contractual duty.

    Six versus seven is vary important. Flats are exempt from Mandatory HMO licensing, but an HMO with 7 people requires planning consent for change of use, because it fall under the sui generis planning use class. From 3 to 6, it might, if an Article 4 directive is in effect.

    Check for Additional Licensing, which may bring all flats into multiple occupation into play, and Selective Licensing, which may impose occupancy constraints on all privately rented flats.

    Many leases limit use to a single family home.

    Unless the flat is three bedrooms, or has more than one room which is not a bedroom, but is commonly used for sleeping accommodation in the area, more than 5 people is likely to be a criminal offence, under the Housing Act (statutory overcrowding).

    Most leases do not allow the re-partitioning of the interior to create extra bedrooms, and there is usually not enough space to do so without creating rooms that are too small to be counted.

    Comment


      #3
      Originally posted by leaseholder64 View Post
      The general answer is no, but many leases require this information to be provided. I don't believe that the GDPR would override a contractual duty.
      It should.
      You can't contract out of the law.

      But if the landlord has an obligation in his lease to give information to the freeholder or the management company, he has to obtain the necessary consents from his tenants to pass the required data to the freeholder / management committee.

      If he does have that lease covenant, he can't claim that he can't comply with it because of GDPR and expect anyone to care - if he's in breach of his lease he's in breach of his lease, the reason doesn't matter.
      And in this case, it's only a problem because he's failed to do something pretty basic.

      Six versus seven is vary important. Flats are exempt from Mandatory HMO licensing, but an HMO with 7 people requires planning consent for change of use, because it fall under the sui generis planning use class. From 3 to 6, it might, if an Article 4 directive is in effect.
      However, even outside the licensing regulations, the rules for an HMO are broadly the same, and it's hard to imagine that 6/7 people in a flat intended for a family would comply with the regulations.



      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

      Comment


        #4
        Originally posted by jpkeates View Post
        It should.
        You can't contract out of the law.

        But if the landlord has an obligation in his lease to give information to the freeholder or the management company, he has to obtain the necessary consents from his tenants to pass the required data to the freeholder / management committee.

        If he does have that lease covenant, he can't claim that he can't comply with it because of GDPR and expect anyone to care - if he's in breach of his lease he's in breach of his lease, the reason doesn't matter.
        And in this case, it's only a problem because he's failed to do something pretty basic.

        However, even outside the licensing regulations, the rules for an HMO are broadly the same, and it's hard to imagine that 6/7 people in a flat intended for a family would comply with the regulations.


        Actually the information commissioner have looked at this specifically, and used leasehold leases as the very example they chose. They concluded (for example) that if the lease specified that I can be told they my neighbour has not paid their service charge (and it has an impact on me) the lessor cannot hide behind GDPR to conceal information to which I am entitled by contract and which the neighbour is also a part of that contract. So yes, contractual provisions and things that are implicit in contracts can and do override general data protection rules (otherwise you would not be allowed to know the name of the newsreader on TV - but their address is different).

        Tenants of course routinely provide permission to breach what would otherwise be a GDPR issue (otherwise references would never be obtained).

        The problem here is that the tenants may not have been contractually obligated to agree via import of the lease into THEIR agreements (so their landlord may face a problem similar to that where the lease specifies that washing may not be hung on the balcony, but the landlord neglected to tell the tenants that).

        Comment


          #5
          The ICO made exactly my point.

          You can't use the law to make a contract breach ok (or necessary).
          Your obligation is to put necessary things in place so that you can comply with both your contracts and the law.

          Same thing with Agents and reference information.
          The agent can't hide behind GDPR to override their duty to the landlord on who's behalf they're working.
          They should ensure that when they collect the data the obtain the necessary permissions to comply with their duty and the data laws.

          On a more practical level, you might ask for the tenant's ICO reference number.
          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

          Comment


            #6
            OK I think we are in agreement

            Comment


              #7
              Lots of ASTs have a clause saying that the tenancy is subject to the terms of the head lease. If the head lease requires the sharing of that information, might that constitute consent?
              Assume I know nothing.

              Comment


                #8
                Originally posted by AndrewDod View Post
                OK I think we are in agreement
                Yes, we agree.
                It won't stop me arguing though!

                Originally posted by Hooper View Post
                Lots of ASTs have a clause saying that the tenancy is subject to the terms of the head lease. If the head lease requires the sharing of that information, might that constitute consent?
                Only if the terms of that head lease are part of the agreement.
                You can't agree to be bound by the terms of something you don't know and that could (in theory, however remote) change without your knowledge.

                So the term would be void or unfair.
                ​​​​​​​
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #9
                  Originally posted by Hooper View Post
                  Lots of ASTs have a clause saying that the tenancy is subject to the terms of the head lease. If the head lease requires the sharing of that information, might that constitute consent?
                  Not unless you actually give the tenant the "head lease" stapled to their agreement and can prove they got it.

                  Comment


                    #10
                    Though strictly speaking anyone letting a leasehold flat would be a bit remiss not to append or replicate any conditions in the headlease by which they are bound.
                    Assume I know nothing.

                    Comment


                      #11
                      I think most people letting leasehold flats are a bit remiss!

                      Comment

                      Latest Activity

                      Collapse

                      • Converting front garden into a driveway.
                        by ForumFirstTimer
                        Hello,

                        I purchased my ground floor flat last year, its a converted house with 3 flats in. It has a small front garden which is 100% mine within the lease, but it is large enough that it would fit a car on it.

                        The 'Garden' right now it just patchy weeds.

                        My question...
                        30-03-2020, 15:09 PM
                      • Reply to Converting front garden into a driveway.
                        by Section20z
                        I think paving could be argued to be a normal use of a garden, (bearing in mind it will need to be permeable anyway for building regs) If the other 2 flats aren't going to complain then I'd be inclined to just do it.
                        What's the worst that can happen.......
                        31-03-2020, 21:39 PM
                      • Sole Director
                        by Stacker
                        Hope you are all healthy and safe!....our AOA state that a quorum is required. The sole director has appointed another director, without one shareholder knowing about the meeting my question is would the meeting have been quorate and could the company secretary act ( one they hire not a member) be part...
                        29-03-2020, 10:41 AM
                      • Reply to Sole Director
                        by Stacker
                        The articles clearly sate no decisions to be taken unless the meeting is quorate meaning directors - the board, the same for shareholder meetings. A sole director can impose his sole authority if he is the only shareholder however the company has AOA which clearly state all meetings are to be quorate...otherwise...
                        31-03-2020, 12:55 PM
                      • Reply to Sole Director
                        by Stacker
                        Sorry leaseholder 64 that is wrong...
                        31-03-2020, 12:51 PM
                      • Reply to Converting front garden into a driveway.
                        by Lawcruncher
                        They may not "need" payment. It depends on what the lease says. There are three possibiities:

                        · The lease says nothing about making alterations or additions or. if it does, the changes you propose are not covered. In that case you can go ahead without asking the landlord....
                        31-03-2020, 08:37 AM
                      • Recourse for work we paid out based on freeholder's incorrect advice
                        by eshroom
                        When my mum bought her flat exactly 5 years ago, she discovered an issue with the buildings wast pipe, which was under her basement flat. It had been leaking and caused a foul smell.

                        She informed the freeholder of the urgent drain issue and they said it was not something for them to investigate...
                        30-03-2020, 21:50 PM
                      • Reply to Converting front garden into a driveway.
                        by ForumFirstTimer
                        thanks for your reply.

                        What would they specifically need payment for? The fact that it's going to be used as a driveway or because I am changing the front garden from grass (solid and weeds) to paving?

                        thanks
                        30-03-2020, 21:11 PM
                      • Reply to Converting front garden into a driveway.
                        by nukecad
                        You would need the freeholders permission for a start, and if they allow you then they will probably want payment for that.
                        30-03-2020, 19:50 PM
                      • Pansies before people
                        by D P Dance
                        The managing agents of one of my rental properties, who have been vilified on Trust Pilot, when asked if they are considering relief for landlords whose tenants have defaulted on their rent have refused point blank to consider offer help and have told me I quote

                        .. you need to accept the...
                        24-03-2020, 13:24 PM
                      Working...
                      X