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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25988
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We have bought the freehold of our flat along with the rest

Customer Question

We have bought the freehold of our flat along with the rest of the tenants and have an unsuitable warden who lives in one of the flats ( not an owner it's part of her job spec) but she is being abusive intimidating and very controlling and I am as of 1/4/2015 a director so that I can help to do something about her but complaints has been made to police about her and statements made the management agents have as yet not been made aware as the tenants feel he is very friendly with her and complaints have so far fallen on deaf ears how do I go about getting her removed ?
I've been wondering if we as a freehold could decide to now rent out her flat to bring in revenue and pay for a warden of our own choice and are we tied in to her staying ? I have to do something fairly quickly as this is a big problem but I suspect she has just kept within the boundaries of not enough evidence for police to pounce and I need cast iron way to remove her . Many thanks . Marnie Kirkham
Submitted: 2 years ago.
Category: Law
Expert:  Nicola-mod replied 2 years ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 2 years ago.
Hi yes of course I am happy to wait but today I spoke with the police contact that I was given and she is part of the safeguarding team and she is awaiting the adult services person to make a date for a meeting with trading standards and the management agency (who is at this point unaware of the problem as he is friendly with the warden ) so things have clocked on a bit since yesterday but I am contacting the person from adult services tomorrow morning to chivvy him for a meeting date immediately he has so far been a bit lax about making an appointment ! But I will see how far I get in the morning and will let you know the outcome ASAP . I am very grateful for any help as this needs to be sorted as quickly as possible I'm hoping he will be forth coming and I will insist on a date set . Many thanks . Marnie Kirkham
Expert:  Nicola-mod replied 2 years ago.
Hello,
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Customer: replied 2 years ago.
Thank you very much
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

May I assist you with this?

May I clarify if this is a retirement development please or something else? What role does the warden perform?

You mention you have bought a share of the freehold. From what you say a limited company?

Does the freehold company employ the warden or is the warden employed by a third party?
Customer: replied 2 years ago.
Good morning ,
the block of flats I am speaking about are warden assisted flats that are managed by Bourne Estates and they employ the warden she is a live on site warden but finishes her duties at 5 each day and does not appear to work weekends either . I am a newly appointed director of these flats along with two others one lives in ( we are all freehold flat owners in this block ) and is friendly with the warden the other director lives off as I do too but she is friendly with the management person of flats so it's all very complicated . The residents seem although I'm new to this director role to trust me completely and I think it's because I have run a care home and they know I know how they should be treated ! I have implemented several changes already as there is far too much control over the residents by this warden and in some part the management aswell and the control needs to be redressed back to the residents as technically we are the employer !! So firstly the cleaning which the warden has also been paid to do but no cleaning is really to any degree being done so I have insisted on i dependant cleaners and a thorough spring clean to be done immediately . Secondly a box put up on the wall for suggestions by residents ( I am only key holder ) will be put up this week as I'm hoping this will also give those who feel they have no voice to speak freely without being intimidated !
Expert:  Joshua replied 2 years ago.
Thank you. Bourne Estates arefor the avoidance of doubt presumably the managing agents you refer to?

How many directors of the freehold company are there?
Customer: replied 2 years ago.
The freehold of the property is now owned by flat owners but it's still known as Leasehold ( not sure why this is ) we also bought the free holds of 6 flats as a ltd company of people that didn't buy them so entire building of 35 flats is now freehold ltd company and only managed by Bourne Estates .
Expert:  Joshua replied 2 years ago.

Thank you. Lastly how many directors are there presently including you?

Customer: replied 2 years ago.
There are three directors
One being myself one a live in resident freeholder and another one who like myself owns a flat but resides elsewhere both of these are friendly one with the warden one with the management agents wife
He not on.y is company secretary but also trustee and management agent is this normal practice or does it smack of conflict of interest ? Many thanks . Marnie
Expert:  Joshua replied 2 years ago.
thank you. The decision based on what you say is that the freehold company has retained managing agents in order to provide services to it to include the provision of a warden. The managing agent based upon what you say is likely to be the employer of that warden.

The freehold company's issue is therefore must be pursued with the managing agent.

the first step would be to look at the terms of retainer the company has with the managing agent - in particular the length of the managing agents contract with the company and what services it must provide. using this information, you can be best prepared for contacting the managing agent. For example, if you find that the contract with the managing agent is shortly due for renewal, in the event of any issues you experience with the managing agent, you could refer to this fact and mentioned for example that it would be unfortunate if failing to deal with this matter quickly would impact upon whether or not to renew the managing agents contract to manage.

If the contract is not about to come up for renewal then you will need to look at the terms of service managing agent must provide under the terms of the contract with the freehold company and identify areas where you consider that the managing agent is failing to provide satisfactory service - e.g. if the wardens performance is not up to your reasonable requirements. From, you can identify a breach of contract on the part of the managing agent and in the first instance ask the managing agent to address the issue and if it is not addressed to your reasonable satisfaction, the company has the option to issue proceedings in the County Court for breach of contract and claim damages as well as decide not to renew the managing agents contract in the future.

the above steps can cause be taken in tandem with pursuing matters with the police if the warden's behaviour is of so serious in nature is to warrant their involvement.

you ask a specific question about whether the company can print out the's flat in order to bring in income. Whether or not the company can do this will be determined upon the terms of the contract the company has with the managing agent. I would expect the terms of that contract to include a requirement for the freehold company to supply a flat for occupation by the warden. If this is the case, then the company cannot simply remove the flat as this could be a breach of contract with the managing agent. If there is no such requirement in the contract with the managing agent then the real company could elect to give the warden 28 days notice to vacate, being the minimum term of notice that is required if no rent is paid - and then seek possession of the property.

Based on what you say, it would seem appropriate for the directors to summon the managing agent to a directors meeting in order that can discuss the matter and the directors can then make a decision. As above, it would be helpful it directors have the opportunity to review the terms of the contract with the managing agent so the best armed in advance of any such meeting. You will be aware that unless the freehold companies alter the standard provisions, a majority vote is required by the directors nodded carry decision.

Has the above answered your questions satisfactorily or is there anything else I can assist you with?
Joshua, Lawyer
Category: Law
Satisfied Customers: 25988
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 2 other Law Specialists are ready to help you
Customer: replied 2 years ago.
Thank you very much for giving me all this information I really appreciate it ! I have phoned the senior practioner at adult services to contact me as it seems he is only able to speak to me via a resident who has made the complaint and is being possibly a bit evasive so may have to get police officer concerned to try again to get him to set a date for meeting !
We think that the contract is yearly but no one appears to have seen it ????? And they think it's up for renewal in August . There are currently 8 flats empty as people have passed on and not as yet sold and 3 people renting 14 people want her removed I'm hoping this is a majority as im excluding the 13 already as I've said to vote them or at least her out !
I also note that managing agent is also trustee and company secretary is this normal ? And at meetings there is no one taking minutes I asked why this was and he became bit agitated ! I am making arrangements in future to find our own independent person to take minutes !
Expert:  Joshua replied 2 years ago.
A pleasure. It would be best practice for the managing agent to not be company secretary as this has the potential for conflict of interest though I imagine it arose for convenience and there is no legal reason it cannot continue if this is the wish of the company.

If no one has a copy of the contract with the managing agent, then a director can ask for a copy of the contract. It is fairly important that the directors have the opportunity to read it because without it they have one arm tied behind their backs with regard to any negotiation with the managing agent. Minutes should be recorded at director and other company meetings or there is no record of what decisions are made. Someone should volunteer to do this. It isn't a huge job but it should be done.

In order to take a decision the freehold company must either decide at a directors meeting by majority vote or a full meeting of all the shareholder/members of the company (this is likely to be everyone that participated in the freehold purchase) by majority vote unless the company articles have decided to alter the requirement for a majority vote which is not overly likely.

I suspect this is a case where the managing agent has embedded himself in the day to day running of the estate and providing he is doing a good job there is nothing necessarily wrong with this. After all as residents you want to get on with living rather than running a freehold company. However if you are dissatisfied with the agents performance (in this case due to a warden service he is providing) it is important ultimately to be able to ensure the managing agent knows that you as directors are in charge and he answers to you not the other way around. Hence it is a very good idea to ensure you are familiar with the terms of his contract with the company so you can negotiate from a position of power (which is what you have).

Can I help you with anything else or has the above answered your questions for now?
Customer: replied 2 years ago.
You've certainly given me plenty to think about and to now gather right information , I think you are completely right as to managing agent taking control probably for reasons of convenience and things have got to this point because no one has challenged it or when they have its been either weak or they've been fobbed off . the warden has become too familiar all round with him and has also gained far too much control . It's knowing the right time to tell both other directors which could cause problems and the management agent also needs to be told but timing is of the essence and in the right order or it may fall apart ! Failing the meeting of police trading standards and adult services ! I am hoping that will frighten him to death and find his own reason to get rid of her to save himself !!! She has apparently been having men in and was even caught by a resident in the guest suite in bed with one but she's intimidated so many of the residents that they are too afraid to stand up and be listened to . Once the suggestion (or complaints ) box is in position it may well bring other things to light !!! If I can bring harmony and trust back into the block I will be ecstatic !!! Thank you I will keep you updated . Many thanks . Marnie
Expert:  Joshua replied 2 years ago.
A pleasure. I am glad the above was of assistance. In the event that your co directors do not support your view, it is possible to call a full shareholder member meeting and put the issue to a general vote. A vote at a general shareholer/member meeting overrides the directors.

in respect of the warden, the service she is providing on the face of what you say is appalling and I would have little doubt would fall far below the minimum standard that the freehold companies contract with the managing agent provides for - it could not be anything else. Hopefully the above approaches together with a twin approach with the police will prove effective.

If I can assist any further please do not hesitate to revert to me
Customer: replied 2 years ago.
Thank you so much it really has helped me to feel I'm on the right course , I am meeting with the managing agent on friday and am asking for both copy of the contract and warden duties . I think one of the other directors is being got at already as she has been complaining about my suggestion of a tv in the lounge for social evenings to try and bring the residents together instead of dividing them this isn't going to be an easy task and I need to plot my path carefully ! I will be photocopying both contracts for every flat owner to have as their own copy hopefully this will show them I have everyone's best interests at heart and want it to be a happy place with everyone's views catered for as much as is possible. Many thanks will be in contact on Friday . Marnie
Expert:  Joshua replied 2 years ago.

A pleasure. I am glad the above has been of assistance.

Customer: replied 2 years ago.
Yes it really has thank you . im sure there are going to be loads more questions I need to ask and guidance but the residents who have approached me so far are very relieved that I've asked for your help and another resident who the warden has bullied mercilessly is leaving tomorrow that's ten flats unoccupied now ! And another 6 ready to move out if I can't sort this ! That's how bad she is ! Many thanks . Marnie
Expert:  Joshua replied 2 years ago.
Oh dear. Good luck!
Customer: replied 2 years ago.
Good morning , things have now escalated to a point I believe of no return the safeguarding team have asked me to make the managing agent aware of the 8 statements which I have done he has now informed her and she is now make nag suggestions that if she finds out who these are they had better watch their backs and you can imagine now they are even more intimidated we had an emergency meeting last Wednesday and he defended the warden although myself and another director made it clear this cannot continue and even with training talking whatever we feel it's gone past the point of no return . We agreed several matters in this meeting one of which was to allow only Drs nurses and ambulances on the forecourt I asked him to make her aware of this matter . On Friday I arrive to find a large double glazing van parked in this space the warden was in her office and I politely asked her ( I had a fire officer with me ) could she please ask for it to be removed I was met with an icy stare and no reply but she completely ignored me so I told her I would return in a few minutes when I did she refused to acknowledge me and I asked her if she was refusing to do her job and she then picked up the phone and said I'm on the phone so I said I would wait , which I did she was clearly speaking to the managing agent saying what I'd asked and I said to her could you please get it removed I've now asked three times and she handed Rhein my direction for him to hear what I was saying and she got up and said excuse me and shut the door on me . I went home and rang the other director and she said she would ring hi she is quite a weak director and as she voiced a fairly unwilling to be one but did it as no one else would and said she would ring me back I told her having witnessed her attitude which was fairly menacing to me let alone elderley I felt he needed to be told that she must go and he's her employer so must deal with it . I later rang him to speak to him myself he clearly had tried to set me up by saying he heard me shouting at her this is not the case and I have a witness who was with me in a professional role not a friend in fact this was the first time I had met hi he came to do my fire extinguishers at my home and when I told him the ones at the flat were not in date in particular one in the residents communal kitchen which along with the blanket are 5 years out of date . The ones in the main halls are also now out of date and should have been serviced last month which I pointed out to him3 times twice in the month they were due plus in our meeting last week . I have now emailed to the facts of fri and also copied in one of the other director involved and adult services and safeguarding who have been involved . This warden is causing a very unpleasant and volatile situation and I pointed this out to the managing agent and passing the information to him and absolving myself plus the other director and the one who lives in the block as she is unaware of the situation mainly as I believe she is in a compromised position living there and also is a under the control of the warden . What should I do next as I feel we are in a position that our flats are a) difficult to rent or sell and that this could possibly put us in a position if we aren't seen to be following the complaints made could be liable to the other residents suing us for not making sure that the flats are run efficiently and any monies that are caused by the price decrease because of her and this dire situation ! The managing agent told me he could not throw her out because I do not like her he is suggesting I'm making this personal but I'm clearly sticking to the residents complaints and he put the phone down on me . I now feel he using bully boy tactics even with me as technically his employer ! HELP !!!!! Kind regards ***** *****
Customer: replied 2 years ago.
Good morning again , I have re read your previous advice and have decided rightly or wrongly ( and please advice if you think this is wrong ) to wait a week to see if a disciplinary is given and then ask for a copy of the contract and then see what that reveals , I asked him the terms that the warden is under employment and he told me that if we sack him she gets passed to new management company but if they wish not to employ her it's up to them is this correct ? If so no management company that we choose would be encouraged to do this from me I suspect that one of the directors and possibly two would agree with me .
I think that the managing agent h as possibly put himself in jeopardy with the warden as he's been seen going into her flat this to me would be a stupid thing to do but it would appear this has happened often !! The flats communal areas are dirty and disorganised in the communal lounge with chairs stacked everywhere a dining room table wedged in one corner and the corresponding chairs in behind the front window with large heavy chairs in front some of the residents have moved them but the warden has moved them back . This I've told him is impossible and needs to be rectified into anything that needs moving like card tables and small chairs need to be easily accessed and for any residents not to have to move anything heavy and hurt themselves . I have taken photographs and a video . The fire extinguisher and blanket are both 5 yrs out of being serviced which I have informed him of 3 times plus the main extinguishers have also not been serviced I told him in the last week of April that this was due and twice since the end of April hence me taking the fire officer as he offered to take a look with me on Friday and witnessed the warden and what happened first hand and is willing to make a statement of it . I feel there is open warfare now and am wishing to tread my path clearly but with obvious caution I will not be intimidated by either of them and am only contacting him via email for there to be clarity and a paper trail . I feel that it is possible to prove he has broken any terms of his contract but need it clearly defined but also wish to give him time to give her a disciplinary which I think is not going to be as it should be done . He will try and discredit me if he gets a chance and believe he has already suggested to the other Director that he witnessed me shouting at the warden . There is also a light in the bathroom that is an ordinary strip light and I believe dangerous I feel I should tell him in an email that no bookings should be made til this is rectified .
Many thanks . Marnie
Expert:  Joshua replied 2 years ago.
Unfortunately I cannot comment on the employment position of the warden without understanding the her contract of employment. I hope you are able to make some progress with the matter using the strategy you outline.
Customer: replied 2 years ago.
Thank you I ask him for a copy of it . Many thanks . Marnie
Expert:  Joshua replied 2 years ago.
A pleasure
Customer: replied 2 years ago.
Will there be insurance for us as Directors if so where do I find it ? Do we have to get our own it says on the information that past present and future directors should be covered by it , should I pay to get it in case something happens to be sure as no idea where this should be kept as no paperwork has been given to me and I think directors historically have just assumed that the managing agent is doing everything he should as his job and assuming no problems will arise , but I'm finding out as I go along that he needs chasing to do things and am now very concerned that this maybe either out of date or if I need it quickly I should know and understand it before hand !
Many thanks
Expert:  Joshua replied 2 years ago.
You should consider directors liability unsurance. Sometime this is provided for under the block policy cover but it should be confirmed.
Customer: replied 2 years ago.
Thank you very much , is this something that would be displayed in the block somewhere ? Many thanks
Expert:  Joshua replied 2 years ago.
If there are employees of the company then the certificate should be displayed where employees can see it.
Customer: replied 2 years ago.
There are no employees . Am I going to have to ask the managing agent for the contract or can I locate it another way ? I am having to rather than speak to him email him as I need to have evidence as he is so decisive . Many thanks . Marnie
Expert:  Joshua replied 2 years ago.
The certificate should be displayed if the company has any employees in a place where the employee(s) can see it
Customer: replied 2 years ago.
Thank you . Many thanks . Marnie
Expert:  Joshua replied 2 years ago.
A pleasure