Question:
I was Director & Chairman for 6 years. (private residential estate). Over that time I formed about 15 personal files on various matters -contractors, correspondence, items to/from residents, contracts etc. I voluntarily stood down in May 2014.
Within a month or so a neighbour took the files and handed them to my successor, to help him in his duties. At no time was ownership surrendered, either spoken or implied. At no time to date have I been formally consulted on them. I have several times asked for their return but have been wilfully refused without explanation. Likewise I have asked many times to examine any files kept by our managing agents. Only this week have I been granted permission.
This permission has resulted from my lawyer taking action on both 2 & 7 ie re bailment and service charge law about 6 weeks ago, and at some expense to me. I am awaiting an answer on the files, on which the Board says it is itself awaiting advice. I would much appreciate an opinion on both the above issues -ie on my property return, at any time, and likewise my right to see/copy files held by the agents.
Response:
One of the hardest parts of my job is managing the expectations of leaseholders’ split personalities. As a leaseholder, you have certain rights and obligations, including (I presume) the right to be a member of (“the Company”). As a member of the Company, you were able to be a director and in that capacity, you had certain rights and obligations too. However, the rights and obligations of leaseholders, shareholders and directors are not identical.
I do not accept that the files you created were personal files because they were created in the course of you carrying out your duties as a director of the Company and they contain information that is proprietary to the Company, including contractors and / or members’ personal data that the Company is obligated to protect. As a director, you were entitled to hold those files but now that you have resigned your office, that entitlement has ceased.
Similarly, as a director, you were entitled to examine files kept by your managing agent but the Company is the agent’s client and the agent’s primary duty is to the Company and its directors for the time being and as a shareholder, you do not have any right of inspection save pursuant to any company law provision. As a leaseholder, in certain circumstances, you may have a right of inspection but your managing agent will advise you if this applies (e.g., in the course of a consultation for major works).
Shmuli Simon is Director of Legal Services at Integrity Property Management, a firm of solicitors and managing agents authorised and regulated by the SRA and regulated by ARMA-Q.
