QUESTION
My two questions relate to the process leading to a RTM and its ongoing validity.
1. The Notice Inviting Participation - Welsh Statutory Instruments:
2011 No. 2684 (W.287) LANDLORD AND TENANT, WALES The Right to Manage (Prescribed Particulars and Forms) (Wales) Regulations 2011
The following sub paragraphs of the above Instrument were NOT and have still not been complied with.
(g) a statement that the RTM company intends or, as the case may be, does not intend, to appoint a managing agent; and— (i) if it does so intend, a statement—
(a)of the name and address of the proposed managing agent (if known); and (bb)if it is the case, that the person is the landlord's managing agent; or (ii) if it does not so intend, the qualifications or experience (if any) of the existing members of the RTM company in relation to the management of residential property;
No statement, IAW para above, was sent or received by the RTM members.
Question 1: Is the RTM valid?
2. SCHEDULE 1- Regulations 3 and 8(1) (Welsh)
FORM OF NOTICE OF INVITATION TO PARTICIPATE 2002 COMMONHOLD AND LEASEHOLD REFORM ACT 2002.
Notice of invitation to participate in right to manage
The following sub paragraphs of the above Instrument were NOT and have still not been complied with.
3.1 The company's articles of association, accompany this notice.
3.2 The company's articles of association, may be inspected in accordance with the arrangements in the following paragraph
3.2.3 At any time within the period of seven days beginning with the day after this notice is given, a copy of the articles of association may be ordered from …………
4. The names of— (a) the members of the company; (b) the company's directors; and (c) if the company has a secretary, the name of that person are set out in the Schedule below.
The above; 3.1, 3.2 and 3.3 did not accompany the RTM Notice of Intention to RTM members, and has never been referred to or made available in any subsequent time since the RTM took over.
Paragraph 4 (b) and (c) were not complied with as the Claim Notice did not have the relevant names or appointments.
Question 2: Is the RTM Valid?
The RM Directors have been advised of the above shortcomings, but will not reply.
ANSWER
Thank you for your query. You do not state whether you are the Landlord or a Qualifying tenant. However for the purpose of this opinion I will assume that you are a qualifying tenant.
There has been a change of attitude amongst the judiciary in recent years. Nowadays the view is where the notice or the information which is missing is of critical importance in the context of the scheme then non compliance with the statute will generally result in the invalidity of the notice.
In your case dealing with the 2 queries:
1. A member of a Right to Manage Company would not normally receive a notice inviting participation. If you are not a member then even though the information missing is prescribed it is possible that a court or tribunal would not consider it sufficiently material to declare invalidity
2. What is missing from this section of the invitation to participate is, in my opinion. More fundamental. You have to have a facility to inspect the Articles of the Company and to know who are the members, directors and secretary of the company and, as such, the notice of invitation to participate is invalid and this would invalidate a subsequent notice of claim. As with 1 above if you are already a Right to Manage company member then you would not receive a participation notice.
However if you are a qualifying tenant you do not have a legal right to object to a claim notice as this is served only on your Landlord (and management company if there is one) Your landlord or his representatives should have called for copies of the notices inviting participation and spotted the errors before serving a counter notice. If the Landlord did not raise any objection when served with the claim notice then the Right to Manage will still take effect.
Richard Sandler, Lawyer/Manager at PDC Law
