Essential works Needed, other Director will not agree.

[susansussex]

I am one of 2 RTM Directors for a small block of flats. We inherited some electrical lighting problems from the old managing agent, the Rtm has been in existence about 2.5 years.

I have had quotes and estimates to put the worst problems right but 2nd Director will not agree expenditure on any item, aside also from this. I have been advised late last year by a professional electrician that the there are issues with the emergency lighting, only 1/3 of the system works and not well. I want to get this repaired as I feel it compromises my position as Director, the other Director will not agree, arguing that the responsibility for electrics and maintenance lies with him alone and for that he will not pay service charges. He has refused to pay charges for over a year. He is not a professional electrician and I believe cannot handle the repairs needed, he insists that claims the system is not working are spurious but I have had a second electrician's look at it recently and he has advised it needs repair.

We have a professional block management co doing the accounts and issuing service charge bills, attempting to collect charges and generally advising us. They say the Articles of Association are unclear regarding whether or not I can go ahead without the 2nd Directors say so. It asks for consensus and there is none. I am concerned that I am putting myself in a situation whereby I could be liable for prosecution were there an accident and want to resolve the issue asap. The arrears of the 2nd Director are another matter. No Director may do paid work under our Association Articles and it never was it put forward to members that they agree he be paid.

I am looking for clarification regarding what I can do as regards tackle these repairs from monies paid in service charges. There was an element for these in our budget for 2013 and also in our budget for 2014. But because of aforesaid non payer, the funds held are almost down to the contingency fund. Any help gratefully received.

[leaseholdanswers]

The agent is clueless- any director unless limited by the articles, a limited set of responsibility, or restricted by resolution of the board or company, is required, as well as free , to act in the best interests of the company and get on instructing the work.

The company has a statutory HASAWA 74 etc and contractual ( under the leases) obligation to make sure the system works and is safe, and directors a personal and criminal liability if a person falls or is harmed in any way eg a fall if the lights are out.

Anyone carrying out work must be competent and insured, the cap is likely neither.

Email this to the agent and ask them to ask their boss or counsel to confirm. It will be.

You may even have to expand that advice to write to all members for a written resolution to agree or force the issue, ask the electrician for a periodic test of the system with recommendations first.

http://arma.org.uk/leasehold-library...-safety/page/1

[susansussex]

Dear leaseholdanswers,

Perfect, I will do as you say. I have had a professional electrical safety check carried out recently and this is what brought the issue to light. The electrical system is not unsafe but on repairing the testing box, the problem with the emergency lighting was found. The second electrician has found the same problem and both advise the same solution.

[leaseholdanswers]

Then as long as the cost is less than £250 for any one flat, or the cost does not exceed a total cost of qualifying works for the year of more than le £250 for any one flat, have the agent get two quotes and proceed. Just make sure that you have cash in the bank to pay for it!

[siva]

Hi Susan,

I was looking at the standard articles for an RTM company and see other potential strategies.

If you go to members you require a special resolution which I'm pretty sure needs to be supported by two thirds of the members (para. 9).

If you call a directors meeting in the proper way (see para. 14) and the other director fails to turn up then you can appoint another director and you will have the required number to form a quorum (see para. 16)

Also, if the other director is proposing to do the work himself (get it in writing) there is a conflict of interest and even if he does attend you can appoint another director (see para.19)

There is no need for a director to be a member of the company.

[leaseholdanswers]

they are nowhere near having to think about
that

[susansussex]

Hello Siva

We are holding a meeting with members soon and have a prospective new Director but at least one flat are unable to attend but have said they support the appointment, do I need some sort of written proof of their vote? I ideally need the new Director on board during the meeting so we can move other matters forward.

[leaseholdanswers]

When you sent out the notice of the meeting it is normal practice to send a proxy form so that a person can exercise their vote at the meeting.

You must check your Articles on the type of meetings and notices that are required to appoint another Director. The standard articles vary from most RMC or RTE residents compliances in that in those cases rotation and reappointed is often annual, and mid year appointments infrequent. As it is common to see RTM arts varied in that way you must check your articles ( companies house have a copy to download) bearing in mind that if these are pre Nov 2009 they should have been changed under the 2009 regulations. http://www.companieshouse.gov.uk/abo...ToManage.shtml, and altered to suit.

If your articles have not been updated then you will have to arrange that they are asap.


Form of Proxy

“Insert Your RTM company in full”

Form of Proxy


I/We "insert full name in BLOCK capitals"

of " insert flat address

being a member/members of “insert Your RTM company in full” hereby appoint "the chairman of the meeting/ or insert name eg you” as my/our proxy to vote for me/us on my/our behalf at the “insert type of meeting” of “ insert Your RTM company in full” to be held on “insert time and place” and at any adjournment thereof.



Signature


Address


Date




Return to “Insert Your RTM company in full” registered office or other address which will accept service.


In addition I hope that you have looked at the links and have written in advance of the meeting setting out the electrical issues, ideally with some idea of cost if not actual estimates, identifying the need for the work to be done and that it must be done by a qualified person (crucially as the common parts are not a home and are non domestic premises, the amount an unqualified person can do is very very limited)so that if needed you can vote on the issue.

[siva]

Hi Susan,

You should do as LHA suggests and check your company articles to see if they are different to the ones I linked to above.

I can only comment in regard to the standard articles and personally would have tried to appoint a new director in a board meeting as suggested above. It's not a guaranteed solution but it is less hassle and if the other director turns up to the board meeting and you can't get something in writing or at least witnessed in regard to him saying he will do the work himself then you can always go to plan B, a members meeting to appoint a director (a straight majority is enough in that case). You have to make sure you get everything spot on legally speaking if you think anything you do will be challenged at a later date. I can't advise on the details because I'd have to see your articles and look into company law myself.

[susansussex]

Thanks for the proxy form, I will send that out to the non attending leaseholders.

I have the Articles and a new Director just needs a majority vote from members or the agreement of the Directors (there is none as other director does not agree). We have sufficient support so that will be fine. Re the proxy vote form, the leaseholder concerned is very poor health and has given POA to a relation. I assume that the relation can complete the Proxy in this case?

Our Articles are the standard post 2009 ones.

Yes I've looked at the links, this is an argument I have put forward to the other Director before, that it is not legal for an unqualified person to undertake repairs on the electrical system in commercial premises.

What I have said to the leaseholders is that we are in need of urgent essential repairs but that because there is no agreement between Directors, it has been very difficult to go ahead. Certainly I can give them all the information needed including the estimates and legal requirements.

[leaseholdanswers]

No the relation can only complete it if they have power of attorney, in its various forms, or a broad enough medical proxy. They can complete and ask them to sign it and you will no doubt accept the signature as valid as you have no reason to distrust them as except in exceptional cases the membe will be able to understand and sign the form that the relative has filled in for them..

With the standard articles it does then require decisions to be taken as a majority, however any Court would in the circusmtances fall back on the directors general powers and duties in this case. I would be prepared to argue at the meeting with the guidance to hand to support you. its a useful tactic to say that this is not an agenda driven exercise nor personal the law puts you in that position of having to press for these works.