Metcalfe Court is now the scene of a secret ballot, organised by freeholder Fairhold
Residents at a retirement development in Cheshire are in the midst of carrying out a second – secret – ballot over whether they wish to have a live-in house manager re-appointed.
The vote has been insisted upon by freehold-owner Fairhold, part of the Tchenguiz Family Trust, even though the residents at Metcalfe Court, in Romiley, Stockport, are adamant that their own ballot is a true reflection of their wishes.
But Fairhold, which receives related fees for providing this service, claims it has received complaints concerning undue pressure applied to dissenting residents.
After the live-in manager handed in his notice earlier this year, the residents’ association held its annual general meeting on March 26 and voted overwhelmingly against re-appointment on a “live-in” basis.
It claims the eventual vote was 49 to three, although with some residents house-bound not all attended to vote at the meeting.
A further 14 absent leaseholders were contacted by post: eight supported the residents’ association, but replies from six, who had to be contacted via the house manager, did not reply and were considered abstentions.
The residents took the unusual step of employing local solicitors Chronnell Hibbert, who had no role in the ballot, to record the vote to the freeholder.
But this process has not satisfied Fairhold. It has insisted that the residents hold a secret postal ballot and ballot papers arrived last Friday. They must be returned by June 10.
With suspicions running high, resident Arthur Seaton asked whether a representative could be present at the count, but was informed by Fairhold that this “was not company policy”.
Instead, it is prepared to invite local LibDem MP Andrew Stunell to the count, who has also been briefed on the dispute.
In a statement to Campaign against retirement leasehold exploitation, which is attached in full at the end of this article, Fairhold states that even when residents vote by 100 per cent to vary a service it would still hold its own ballot.
It provides evidence that there were inconsistencies in the residents’ account of their ballot, with one email stating that the initial vote at the residents’ association AGM was only 37 in favour of not re-appointing an in-house manager with four against.
“We felt that we had to act fast on this to stop the re-appointment, but we should not have sent this email,” says Maureen Young, 72, chairman of the residents’ association. “There were four others who could not attend and then eight non-residents who replied by post.”
But the discrepancies in the reported vote are highlighted by Fairhold.
“We would normally conduct our own ballot to vary the provision of a core service, we have good reason for conducting a secret ballot in this instance,” says Fairhold.
Fairhold claims that as far back as October 2010 it has received complaints over the matter, with one resident talking of “bullying” and the daughter of another claiming that the RA was “not speaking for all the residents”.
Yesterday, Fairhold says, a caller claimed many residents are “too scared to stand up to the residents’ association”.
Young, who was not RA chairman in 2010, indignantly dismisses any suggestion that there has been bullying over the issue.
“If there has been any bullying it has been from Fairhold which has been dragging its heels over this,” she claims. “If they were listening to our concerns, why did they arrange for two applicants for the job of in-house manager who were to meet the residents yesterday?”
At short notice, Peverel cancelled this meeting.
“Fairhold showed every sign of just steamrollering through the appointment of a house manager,” says Young.
Last week, Andrew Stunell wrote to Fairhold: “The association [of residents] is therefore asking you to defer the appointment of a new post-holder whilst this matter is given further attention.
“If you feel unable to do so they are currently minded to take the matter to the Leasehold Valuation tribunal for resolution.”
A further consideration is whether there is any requirement for the residents to have a live-in house manager at all.
A letter to the residents from LEASE, the Leasehold Advisory Service, reads:
“Having taken the trouble to read through your lease, it would appear that nowhere is there a requirement for the management company to employ a resident manager …nor for the attendant costs of such residence to be met by the leaseholders.”
A variation of the lease would require a majority of 75 per cent, according to Section 37 of the Landlord and Tenant Act 1987, but the Metcalfe Court residents’ association vote showing 49 in favour amounts to a majority of 84.48 per cent, according to solicitors Chronnell Hibbert.
Even though a ballot is not required in the lease, Fairhold argues that the freeholder “must be certain that it is not withdrawing a service which leaseholders require and expect”.
Changes to employment law mean resident house managers can only work limited hours and there is little need for a live-in service, according to Chronnell Hibbert. Neighbouring leasehold retirement sites to Metcalfe Court have long had “live-out” managers.
“What is the point of employing a live-in house manager who only works 9 to 5 when we already pay for the 24-hour Careline service?” asks Maureen Beech, the secretary of the residents’ association.
“We feel that we are being forced into having something we do not want and have to pay a lot of money for.”
In retirement leasehold, revenues from the house manager’s flat have long been a source of acrimony.
At Metcalfe Court, a two-bedroom flat comes with the post, for which the residents compensate the freeholder with notional rent. The figures, around £8,300 a year, and how they are arrived at, are disputed owing to an offset with the guest suite at the complex, which is used by residents’ relatives when visiting the site.
Last year, at Oakland Court in Worthing, residents successfully disputed £137,500 of notional rent paid to their freeholder over many years. You can read more here
The Tchenguiz Family Trust owns the freeholds of 53,000 retirement flats through various freehold-owning companies. They are managed by Peverel, the managing agent that it also owned until it was put into administration in March 2011.
“Sadly, the ballot result held by Fairhold will inevitably prove different to ours because two residents have died since March and one has gone into respite care,” says Young.
The full statement from Fairhold is below:
Related posts:
Metcalfe Court: Residents laugh at Fairhold “bullying” accusations
MP tells Metcalfe Court it has won ballot to end live-in house manager
Mere Court residents should vote as they wish, but tell Peverel it cannot sell the house manager’s flat until its ownership is clear
Hand over £100,000 Mere Court house manager’s flat and we will give you £10,000, say Peverel / Tchenguiz
The first point i would like to make concerning the unsubstantiated accusations of “Bullying” made by Fairhold against the Metcalfe Court Residents Association, is that history records that Fairhold (through Estates and Management) have been the subject of a Parliamentary Early Day Motion because of their conduct, whereas Metcalfe Residents Association have not.
The second point i would like to make is that through their “appointed managing agents” they encourage and offer assistance to residents wishing to set up a residents association. The attitude taken by Fairhold is hardly likely to encourage the formation of new residents associations.
I do not know what is in the Metcalfe Court lease. Assuming provision is made for a live in house manager in the lease, then i would agree it does qualify as a variation of lease. It is correct 75% must be in favour.
However, for a variance of lease to be allowed less than 10% must vote against the proposal. i.e, if a development of 100 flats takes a vote 75 must vote in favour, but if 11 vote against the vote is defeated.
The landlord must have one equal vote. Clearly, the holding by the landlord of a secret ballot would be ruled invalid by the LVT and should be seen as a delaying tactic.
Eventually the clear majority will succeed, but it may take time. If Metcalfe Court are forced to continue for a period with a live in manager, the residents should consider changing other service providers, possibly moving away from Cirrus/ Careline.
This is a standard McStone lease and so the proposal for a visiting manager will not go ahead if a “qualifying objection “is received. In other words if more than 25% of leaseholders say no, it is effectively stymied.
I am not sure the threat of an LVT is made as there are perfectly clear rules in the lease about variation of services. The LVT is used where a variation is required and nothing is written in the lease.
I cannot blame Fairhold for insisting on a proper secret ballot. After all they would be liable if a service was withdrawn without the proper procedure being followed.
And bullying? Of course this happens, as it does in the school yard, the work place and in the home. Don’t let us pretend that everything is nice and cosy and clubbable in retirement housing – it ain’t!
Insider,
As a house manager’s flat is essential for having a live in house manager, and as such the flat would have a restriction for use, if a lease had been created on the flat (in order to borrow against the value) would the fact that it is a house manager’s flat have to be declared when registering the created lease at the Land Registry?
Would the restriction that it was a house manager’s flat give it a lower leasehold value than an equivalent flat with no such restriction?
If for any reason a lease has been created that makes no mention of the fact it is a house manager’s flat, could it be argued that the freeholder has varied the lease by taking away the house manager’s flat?
Could it further be argued that if there is no house manager’s flat a live in house manager can’t be?
Do you think it could help those that see no need for a live in manager to come to an amicable agreement with a freeholder, if by some chance the freeholder made an administrative error in registering a lease?