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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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A members property management company wish to terminate a

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A members' property management company wish to terminate a managing agent's contract, who claim they have a contract until March 2015. The members' management company director has asked them 3 times (tracked and recorded letter) to give details of that contract, but it appears that they are ignoring every attempt at communication. If we go ahead and appoint a new managing agent is it possible that the previous managing agent can sue for breach of contract ? (assuming of course that they then produce a valid contract at that time)
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts : Hello my name is ***** ***** I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : Have you seen the contract please?
Customer:

No we have not seen any contract. If we had seen the contract we would know what was in it. Without wishing to go into too much detail, briefly the managing agent had been appointed as director of the members' management company way back in 2006, when the block of flats was built. We recently held a members' meeting wishing to get rid of this managing agent, so appointed one of our members as director, and gave them notice that we would terminate their contyract from 31st May 2014

Customer:

The articles state that a director must be a member of the members' company, and the director (initially the director was the managing agent !) had been changed to an employee of the managing agent in 2010 when the law said that a body corporate cannot be a director of a company. Our solicitor advised us that that appointment was 'ultra vires'.

Customer:

They claim to have a contract until March 2015, but will not respond to our requests for them to provide details of that contract. Nor will they hand over documents and records to the new managing agent. So where do we go from here ?

Alex Watts : Ok but won't they provide a copy, if they are considering making a claim?
Customer:

"Ok but won't they provide a copy, if they are considering making a claim?".. I don't think you have understood. They are NOT considering making a claim. They just won't communicate with us. They say they have a contract until March 2015. We ask for details of it, and can they prove that they have a contract. But they just don't reply at all. So my point is: if we appoint another managing agent, can they later sue us for breach of contract if they then, at that time, produce a (valid) contract ?

Alex Watts : Yes they could.
Alex Watts : However you should write an ask for a copy of the contract and state if they refuse you will seek a court order.
Alex Watts : If they refuse you can apply to the court for disclosure of the contract.
Alex Watts : you would need to apply using form n244
Alex Watts : http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n244eng.pdf
Alex Watts : The court will consider making an order requiring them to disclose it at which point they will have to say whether they have it or not.
Alex Watts : Then you know where you stand.
Alex Watts : But if you terminate without sight and they do have it, yes they could sue.
Alex Watts : Can I clarify anything for you about this today please ?
Customer:

Right, thank you. If we apply to court using form n244, what would be the situation re court costs ? Would we incur any even if it turns out that they do NOT have a valid contract ? Also by refusing to communicate with us, is that not a breach of the assumed contract ? They manage the properties on behalf of the members (management company) - if the members wanted, for example, to discuss or review their performance in managing, then there has to be a communication between the two parties, and if the managing agent just won't communicate, then is that not sufficient grounds to claim that they have breached the (assumed) contract ? [Also : I keep receiving emails "Please rate my service" 14 so far ! I cannot rate your service until it is complete.

Customer:

This link: http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n244eng.pdf - did not work

Alex Watts :

If you in the application you can ask for costs.

Alex Watts :

If they refuse to provide the document then they could be in breach of a Court order - contempt of Court.

Alex Watts :

By refusing communication does not necessarily mean they are in breach - if there was no term saying they needed to reply, then it can't be a breach.

Alex Watts :

But if they are not doing the work or things they say they would that would be a breach - but that does NOT mean it automatically ends.

Alex Watts :

The contract would still be in existence.

Alex Watts :

Does that help?

Customer:

"If you in the application you can ask for costs." meaning: If we ask for costs when we apply for a court order ? But we can't be sure that we would get costs ? I tried the link you sent - see above - but as I said before it does not work. So are the costs on a set scale according to the money involved ? Because if we applied for a court order it would be to get them to produce evidence of the contract, so we cannot be sued for breach. What costs would apply ? (there would not be a sum of money)

Alex Watts :

Yes you can apply for costs when you get the Court order. No, you can't guarantee getting costs, these are always at the discretion at the Court.

Alex Watts :

Costs will be summarily assessed on the day.

Alex Watts :

Therefore if you had Solicitors doing the work, the Court would assess whether those costs are reasonable.

Alex Watts :

If you do it yourself the court allows £18 an hour, but again time spent must be reasonable.

Alex Watts :

A Judge can allow or reduce costs

Alex Watts :

Does that clarify?

Customer:

Yes thank you



Ash, Solicitor
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