RTM Company Formation
Under the Commonhold and Leasehold Reform Act 2002, Right to Manage is only exercisable through an RTM company set up according to statutory regulations. An RTM company must be a private company limited by guarantee and its articles of association states that its object, or one of its objects, is the acquisition and exercise of rtm for the property.
All qualifying tenants are entitled to become members of the RTM company, with individual liability limited to £1. The landlord also has the right to become a member of the RTM company after the Acquisition Date as he retains an interest in the property and his membership is usually limited to a single vote.
Since November 2009 an RTM company only requires a single director, but larger blocks will typically be comprised of a board of three or more. There is no requirement for directors to be leaseholders, however in this event it is usually recommended that a majority of directors are leaseholders and preferably resident leaseholders, so as to avoid disproportionate influence from persons not experiencing day to day living at the property.
The freeholder has no legal right to be a director but is entitled to a single membership of the RTM company.Legally, you do not need a majority to proceed. As long as at least half the leaseholders in the block are in support, the Right to Manage process can proceed. However, it is generally advisable to aim for at least two-thirds to become members of the RTM company. This also avoids any criticism that the procedure is undemocratic.
The exercising of Right to Manage is started by the formation of the RTM company with leaseholders as founding members and at least one leaseholder as a director. Once the RTM company is established it must serve the required legal notices, including a notice on your landlord/freeholder advising that leaseholders will be exercising their statutory Right to Manage. So long as the statutory conditions are met the landlord has no legal grounds to object and Right to Manage is determined a month later with the RTM company taking over the management a further three months later.
Note: The RTMF does not manage properties or recommend specific management companies. We have no agreements with management companies and we do not receive commission from management companies. However we will provide impartial guidance and on occasions we may advise against management companies that are financially unsound or have a poor track record and previously proved unsatisfactory
Do you qualify for Right to Manage
In order to qualify for Right to Manage Legislation the following must apply:-
- The property / block must be a structurally detached building or self-contained part of a building.
- The property / block must have at least two flats.
- At least two-thirds of the flats must be owned by qualifying tenants.
- If part commercial the non-residential part must not exceed 25% of the total floor area.
- At least 50% of the leaseholders in the property / block must be in agreement to proceed.
- If your building is a converted property of four or fewer flats, the property will not qualify if either the landlord or an adult member of the landlord´s family occupies one of the flats as their principal residence.
- The local authority is not the landlord of any qualifying tenant.
The Right to Manage Process
- Founding members instruct RTMF and pays the Right to Manage costs.
- RTMF forms an RTM Company according to statutory memorandum and articles. Liability limited to £1 per member.
- RTMF make Land Registry searches.
- RTM Company serves s.78 Notices Inviting Participation of non-members.
- When 50% or more membership is achieved, after 14 days RTM Company serves s.79 Notice of Claim on Landlord.
- Landlord may serve s.84 Counter Notice within 1 month. Legal grounds should be limited to the procedure not being followed, the qualification of the building or company members.
- If no Counter Notice Right to Manage is determined after 1 month. (Determination Date).
- If a counter notice is served denying Right to Manage the RTM company can make an application to the FTT for determination within two months of the date of the counter notice. The determination date is either the date the landlord withdraws the counter notice or the date of the FTT decision (Allowing 28 days for appeal).
- Following the Determination Date, the Landlord must serve s.92 Contractor and Contract Notices to advise about the pending RTM.
- Leaseholders organise themselves for management, either by selecting or appointing a new managing agent (MA) or by forming their own management structure.
- 3 months after the Determination Date the RTM Company acquires Right to Manage (Acquisition Date). Landlord/Manager hands over control/funds etc to new RTM Company or to leaseholders appointed MA.
The Right to Manage process for retirement blocks
- RTMF give presentation to Leaseholders.
- All Leaseholders invited to become members. 50% required to proceed. Liability limited to £1 per member. Members give good-faith refundable deposit towards the Right to Manage costs.
- RTMF forms the RTM Company according to statutory memorandum and articles.
- RTM Company serves s.78 Notices Inviting Participation of non-members.
- With 50% membership, after 14 days the Right to Manage Company serves s.79 Notice of Claim on Landlord.
- Landlord may serve s.84 Counter Notice within 1 month. Only legal ground is if procedure has not been followed. Minor inaccuracies are discounted.
- If no Counter Notice Right to Manage is determined after 1 month. (Determination Date).
- If Counter Notice is served the RTM Company can take matter to LVT (within 2 months). Determination date is either date the Landlord withdraws Counter Notice or date the Counter Notice is decided by the LVT (allowing 21 days for appeal).
- Following Determination Date, Landlord must serve s.92 Contractor and Contract Notices to advise of RTM.
- Following Determination Date RTMF invites members to join a Manager Selection Committee.
- Manager Selection Committee selects a short list of three potential Managing Agents.
- RTMF prepares tender documentation and invites tenders from three nominated agents.
- Two Managing Agents invited to give presentations to all leaseholders.
- Manager Selection Committee makes final recommendation of Managing Agent.
- Arranges generel meeting of RTM company members (GM) to vote on Selection Committee recommendation.
- If appointment approved at GM, RTM Company completes agreement with nominated agent. New Managing Agent pays the Right to Manage costs and RTMF refunds leaseholders deposits.
- Three months after the Determination Date the RTM Company acquires Right to Manage (Acquisition Date). Landlord/Manager hands over control/funds to new Managing Agent.
Management Selection Process
The appointment of the new Managing Agent is democratically determined by a Members’ Selection Committee. The invitation to join this committee is open to all RTM company members, although we only advise participation by those capable of reviewing detailed information and willing to attend all meetings. There is no limit on committee size although it will typically comprise your founding directors and an equal number of members.
The first meeting of the Selection Committee takes place shortly after Determination Date. The principal objective of this meeting is to determine a checklist of priorities and arrive at a shortlist of three potential management companies that will be invited to tender for the management contract.
Very often leaseholders have recommendations from other estates that are well-managed or they may have made contact with local property management companies or found potential candidates on the internet. If requested the RTMF can supply lists of management companies with Right to Manage experience.
The selection committee will also be asked to review a draft schedule of services and a management questionnaire, which will form the basis of the tender documentation.
The RTMF does not recommend specific management companies. We have no pre-existing agreements with management companies and we do not receive commission from management companies. We do provide impartial guidance and on occasions we may advise against management companies that are financially unsound or have a poor track record and previously proved unsatisfactory.
Management Company Qualification
We would usually advise against the appointment of a company that is neither a member of the ARHM (The Association of Retirement Housing Managers) nor ARMA (The Association of Residential Managing Agents). ARHM members are bound by a code of practice approved by the Secretary of State for the management of retirement housing and ARMA members operate to a similar residential management code produced by the Royal Institute of Chartered Surveyors (RICS).
Invitations to tender
Following the first selection committee meeting the RTMF collates all the appropriate information into one package, which is then sent to each of the shortlisted management companies in the form of an invitation to tender for the management contract. This information will typically include a questionaire, a copy of your property lease, a copy of your current service charge budget and a draft contract for approval. Each company will be asked to submit their own draft budget using the same format for easy comparison.
Leasehold is almost unique to the UK. Most other countries in the world have adopted a form of common hold whereby apartment leaseholders own the freehold between them and collectively manage the building. In America and other countries of Western Europe these are called condominiums.
Under the UK leasehold system purchasers do not actually own their flats or apartments but rent them for a long period typically 99 years, 125 years or sometimes 999 years. Instead of paying monthly rent leaseholders pay a larger sum up front, which guarantees their exclusive use of the property for the whole period of the lease.
The landlord retains the common parts, such as the lobby, stairs, corridors, office, and house manager's accommodation, lounge, laundry and guest room where applicable. But these have very limited value because they cannot be sold as they have been contracted to leaseholders' use and benefit under the lease. As a consequence the value of the freehold is effectively the discounted value of properties at the end of the lease plus the value of the income stream the freehold can yield by way of rent such as ground rent.
The value of the freehold is determined by a calculation that translates the future property value plus income the lease will yield into a present day sum of money. The income is primarily the monies all lessees are required to pay by way of rent, excluding service charge contributions. In most leases with over 80 years to run the leaseholders' interest far outweighs the freehold interest in the property.
The freeholder and the leaseholder have rights and obligations as set out in the lease. The freeholder's chief obligation is to collect service charges, maintain and insure the structure of the building and ensure individual leaseholders abide by covenants in the lease, such as not creating noise or nuisance to neighbours.
The freeholder may decide to manage these tasks itself or it may appoint a managing agent to look after these matters on its behalf. In return for meeting these obligations the freeholder is entitled to charge a management fee and leaseholders will usually pay this fee and all the other expenses of maintaining the building by way of an annual service charge as set out in the lease. Usually all leases for a block will be substantially the same.
In recent years many profit-seeking freeholders have seized the opportunity to extract more monies from leaseholders, often by unethical means. By managing the building themselves, or via management companies they own, some freeholders are taking generous commissions and handling fees for many of the services provided, such as insurances, lift maintenance, security and fire alarm maintenance etc.
On retirement estates some freeholders have found ways to start charging leaseholders an annual rent for the use of facilities previously provided free of charge, such as the use of the scheme manager's accommodation and office. Some have even started charging a rent for the use of the guest suites; others require lessees to pay the freeholder a transfer fee every time a lease is assigned.
It is against this background and after considerable consultation in the industry that Parliament introduced further legislation to address the imbalance in leaseholder rights. In view of the fact that leaseholders' collective investment in a block of flats far outweighs the freeholder's interest Parliament properly decided that leaseholders should have the absolute right to acquire the right to manage the block or appoint a managing agent of their own choosing.
These measures were introduced in The Commonhold and Leasehold Reform Act 2002 and became effective in 2003. If you are a long leaseholder in a qualifying block of flats it is your statutory right to benefit from this legislation.
Common Leasehold Issues
By far the most common leasehold issue is the level of service charges. By law service charges must represent the actual expenditure incurred in providing the services stipulated in the lease and the cost must be reasonable.
The lease may also require that leaseholders contribute towards a sinking or reserve fund to provide for the future maintenance of the property. These contributions must be reasonable and would usually be based on a professional survey of the property. Service charge monies and reserve funds are held by the landlord on automatic statutory trusts and must be retained in separate bank accounts designated for the benefit of the relevant leaseholders.
Leaseholders have statutory rights in relation to service charge demands. These include the right to obtain a summary of all the costs and the right to look at the accounts, receipts and other documents on which they are based. Leaseholders have a right to be consulted on all major works that exceed £250 per leaseholder and on any long-term agreements exceeding £100 per leaseholder per year.
A landlord can only recover costs that are notified to leaseholders within 18 months from the time the costs were incurred.
The usual remedy to leaseholders subjected to unreasonable service charges is an application to the local Leasehold Valuation Tribunal (LVT) which has jurisdiction to determine such claims. LVT´s are not unfriendly places and are used to dealing with leaseholders in person. An application to the LVT incurs a flat fee of two or three hundred pounds and unlike the civil courts leaseholders would not generally be liable for the landlord´ legal costs.
Rent For Managers Accommodation
It is commonplace for landlords and managing agents to charge leaseholders rent for the use of the caretaker´s or house manager´s accommodation and office. Whether or not such a charge is justified depends upon the precise wording of the lease. This issue has already come before the LVT, the Upper Tribunal and the Court of Appeal and the guiding principles are now well defined.
Unless a specific rental charge is spelled out in clear and unambiguous terms in the lease, using words an average man in the street would readily understand, the charge is not justified and cannot be applied.
Some leases allow 'the cost of the warden's accommodation' to be included under service charge expenditure. Although this is intended to refer to the cost of upkeep and maintenance, profit-seeking landlords have argued that this also entitles them to charge a rent. They argue that in providing a flat for the warden or manager they gave up income that would otherwise be derived and they seek to recover this 'income foregone' as a cost. The Court of Appeal has rejected this argument and determined that whereas income foregone may well be a 'cost' it is not 'expenditure' of the type to be included in the service charge.
It is also relevant to point out that in most blocks of retirement flats the developer of the estate would usually have already obtained compensation for the provision of facilities such as house manager´s accommodation, guest suite, lounge and laundry etc. Insofar as the provision of these facilities is usually essential in order to obtain planning consent, the compensation to the developer is the increased value of the land due to planning consent, without which the development could not proceed. These requirements are often incorporated into section 106 planning agreements (previously known as section 52 agreements) otherwise known as planning benefits for that reason.
Some recently drafted leases state clearly and specifically that a rent is payable for some or all of the above facilities. A developer may give up a certain amount of space to provide these facilities but as stated that is usually compensated at the planning stage and in the opinion of this website it is unethical and unfair to make an additional recovery from leaseholders, especially retired pensioners.