My Rules of Modern Communication

Of all the ways available for us to communicate, face to face is clearly outright winner.  There are so many signals sent when you can see someone that there is a whole separate dialogue going on that tells us all instinctively much that we need to know. This is part of being human, and yet we will go a long way to avoid it if there is a quicker, easier way that avoids direct contact.

A telephone call is good. Did you know you can only hear 10% of a person's real voice on the phone? Our brains can fill in the gap in knowledge but it is not competition for face to face and so comes a distant second.

Then there is a letter. Handwritten always used to be the best, care had to be taken with the construction and tidiness - it could not be rushed. A good writer can convey a great deal. Sadly this skill is diminishing. Often a hand written letter these days is an precursor to bad news - no longer simply an effective and enjoyable form of communication.

Then there is email. Where do I start? Email is so immediate, convenient and accesible that it has become nothing more than a shortcut tool for busy people with complex lives. A tool that allows one to avoid real contact and indeed, sometimes, reality. I don't like email, but I always adopt technology and have been emailing for as long as it has been possible. But let's face it, 90% of the real message is lost in emails and, because they are ubiquitous, senders often fail to read them back carefully and consider the message they wish to convey.

In easy last place is texting. I use it, but no one will ever persuade me that it provides anything other than convenience. Most of the time it is used to avoid proper communication.

Sadly, both personally and in business there is no way of avoiding these short form types of communication and both business and customers are worse off for it.

I get a lot of emails, most of them want to sell me a service. Here are my rules to help you succeed:

1. A personalised approach is always best. Follow up a written and interesting letter/email with a call. Do some research first though. Am I really the right person to talk to? For example I don't approve contractors, I don't place orders, I don't buy office supplies etc. etc. Find out who the right person is.

2. Don't send me standard generic emails. I delete them. You got my name off a list. I didn't ask you to contact me.

3. Don't just add my name by way of personalisation. Personalise it properly and there is a chance I will read it.

4. Just because I have LinkedIn with you it does not necessarily mean I want to do business with you. If I do I will almost certainly let you know.

5. Cold calling does not work at all.

6. Pretending I know you does not work. Being extra 'chummy' really gets my goat.

7. Business is a two way street. We are more likely to have a meaningful conversation if you have something I want and vice versa.

8. No, I do not want a table for ten at a sporting event in 8 months time. If I do I will hunt around for the best price. Usually cheaper than yours.

If you don't want to sell me something then pick the phone up to me or email me with a clear summary of the opportunity or the issue. I always read my important emails.

1. However do not expect me to respond within 10 minutes. 4-5 working days is not unrealistic, but it depends on many factors.

2. If it is an emergency - am I the right person at this stage?

3. Be courteous. I am always so.

4. If you have never met me I cannot be your enemy. Step back and tell me why you are frustrated and/or angry. I will always try to help if I can.

5. Don't withhold your number. I am naturally suspicious.

6. Don't ask your assistant to set up a call unless you are a.) Royalty, b.) almost as important.

7. Just because my 'out of hours' is not on, it doesn't mean I am not on holiday. I always keep an eye on things and pass on important stuff to others if I am away.

8. If you email me please spell check your communication. Then sense check it. Then click the correct 'send' button. It happens, it can be embarrassing, or worse.

If you get a glimmer of interest from me, I suggest you buy me coffee somewhere convenient or come to my office. If you want to sell me something then you should come to me.

Call me old fashioned but I like to meet people, assess the cut of their jib, look into their eyes. I've got it wrong once or twice but mostly my instinct is right. The best people to do business with have sometimes been those with the least likely proposition. Indeed, sometimes a problem has been turned into an opportunity for both of us.

The good news is that I think we are starting to relearn communication skills, particularly written. As you will have gleaned, I like blogging and there are many thousands of brilliant writers out there now using this technology to get their views or interests out to a wider audience. Twitter may not add to written quality but it does throw up links to the most interesting and widely varied participants in blogging - across the globe. I am a convert to the way that technology is shrinking the world and outing the fanatics to the ridicule of the majority.

However, those are big themes. I would just like you to pick up the phone and try and get a meeting. Even if it is to complain about my blogging. Old fashioned I know, but it sometimes works!

Will the Daejan outcome affect how we deal with Phillips v Francis? Update 3

I have been asked this question alot in the last few days. I wish I could answer it with some certainty. Agreed, there are more grey areas surrounding intention when dealing with S.20, but we should not mistake this for flexibility in the requirement to undertake the full consulation to the letter of the law. That being the case I cannot see how the Daejan outcome would reduce the impact of Phillips.

Having said that, no one is entirely clear as to what will constitute correct interpretation of Phillips by the LVTs. Early signs still suggest that the expectation is that nothing less than a boiler plate approach will suffice. If you miss a trick your client will be penalised and unable to recover the excess over the £250 limit per flat. Some poor souls are going to have to find out the hard way before we are all clear on what the exact process needs to be. I do not anticipate a 'flexible' approach from the panels.

One light on the horizon is a change to the threshold - Baroness Gardner of Parkes has proposed, by amendment to the Enterprise and Regulatory Reform Bill, currently in the Lords, a move to £330 before S.20 kicks in (remember the threshold has changed only once in nearly 30 years, the net effect of inflation meaning that leaseholders get to pay for more and more consultations as time goes by). The Baroness has further proposed some exclusions for essential and unforseen fire safety works, urgent repairs and securitry matters. Let us hope that these very sensible suggestions are adopted.

Landlords may take heart from the Daejan outcome but, whilst I believe that the outcome is a just one, it does not in any way change the requirement to undertake all stages of the consultation fully. Save for manifest error I would not be rerlying on it making life any easier for agents or their customers.

Come on - it really is time to revisit the whole process which remains clunky, expensive to administer, confusing for flat owners and vaguer than ever as a result of Phillips. Who exactly is being served here? The LVTs are awash with reasonableness tests and will soon be flooded with S.20 challenges.

As I have always said, the more complex the law, the more loopholes for the unscrupulous...

Pragmatic outcome at last in Daejan v Benson?

I note that decision for Daejan V Benson in the Supreme Court (heard before Phillips v Goddard unfortunately) has now been published.

Their Lordships appear to have decided, at first reading, on a sensible solution that does not allow the leaseholders to benefit entirely from a windfall in terms of the works, but requires the landlord to pay the leaseholders legal costs and a sum reflecting the failure to consult. Not a majority decision but practicality of approach seems to have held sway. Very much at odds with Phillips v  perhaps? 

Lord Neuberger stated: 'This conclusion does not enable a landlord to buy its way out of having failed to comply with the Requirements, because a landlord faces significant disadvantages for non-compliance...[it] achieves a fair balance between ensuring the tenants do not recieve a windfall and that landlords are not cavalier about observing Requirements strictly.'

Wow, how much did it cost the parties to get to that common sense solution in one of the longest running property cases? I will write more about how I think this might impact consultation activities once I have had time to digest the full decision in detail.

Meanwhile News on the Block have published an excellent summary here: 
http://www.newsontheblock.com/news-and-opinion/38057/landlord-as-supreme-court-allows-major-works-appeal.thtml

Phillips and Goddard V Francis Update

For banging your head against

I have been putting this off for some days in the hope that some expert, highly qualified professional will come to my rescue with a simple and elegant solution to the thorny problem that we all find ourselves with. Suffice to say this has not happened ( - yet, for it may do in the course of time and once other cases have revisited the issue).

So, what do we know? Well the case is not to be appealed further and stands as it is. For now there is no ability to separate qualifying works into different activities or timeframes within a service charge year. Additionally the cost of all qualifying works cannot exceed the limit per (any) flat without full consultation.

As I have said before, no one benefits from this judgement. It will involve all agents in significant additional work, head scratching and delays. The costs will be passed on to leaseholders.

I will summarise the suggestion made by ARMA and other experts below before looking at what hope there may be for the future.

In responses to ARMA it is clear that many members are playing a waiting game to see what transpires. This may be a calculated risk but it would appear from one response at least that the LVT may take the view that relevant interim costs are caught by this judgement and must be consulted upon. There is a debate currently as to whether interim costs were supposed to be included. For my part I cannot see that they were excluded, although I cannot accept that this was the intention of the Chancellor.

ARMA's excellent summary can be found here: http://www.arma.org.uk/files/Phillips_v_Francis_public_brief.pdf

Other suggestions include; a detailed published schedule of rates for all repair works - a big undertaking for any agent; a catch all style general consulation at the start of each service charge year; persuading the DCLG to raise the threshold to a level that will reduce the number of consulation excercises significantly and getting predeterminations on everything. 

My own concerns continue to be the relatively low threshold for S.20 consulation (see previous blogs) and the difficulty in making the increasingly complex statutory framework in which we operate understandable to my customers. Jonathan Upton of Tanfield Chambers has summarised the position in a comment to ARMA  most neatly:

“This decision is curious given that neither party argued that a landlord was required to consult on a distinct set of qualifying works if a lessee’s contribution to the cost of those particular works would not exceed £250: the lessees’ case was that the qualifying works were all part of the same set of works. The Chancellor felt able to depart from the Court of Appeal’s decision in Martin v Maryland Estates on the basis that the 1985 Act has since been substantially amended. While this may be correct, the decision has serious and possibly unintended consequences for landlords.

This will be an enormous burden on landlords and managing agents, both in terms of cost and time. If landlords are now required to consult on all qualifying works, however small, the cost of such consultation will ultimately be passed on to lessees. This is not in anybody’s interests. It cannot be what Parliament intended.”

Amanda Gourlay also of Tanfield Chambers, whose excellent 'Law and Lease' Blog really is well worth a read, suggests this:

One solution may be to issue a Notice of Intention at the beginning of the year, listing works which the landlord anticipates may need doing in the course of the year. The regulations only require a description of the works “in general terms”.

Whilst the tenant must respond to that notice within a specified period, so far as I am aware, the landlord is not obliged to obtain all estimates for the works at the same time, nor within a specific period. Therefore, the landlord can wait until the works need doing before continuing the consultation process by obtaining estimates and so on.

So, what hope do we have for a return to the now, comparatively, good old days of Martin v Maryland? Any change will need to arise through a revisit at Court of Appeal level. This could leave us waiting for 18 months and having changed all our processes and procedures we get to return to the old system. One might hope for a pragmatic approach form LVTs, but I sense from others that this may not be forthcoming.  Agents may decide to put as many budgets through to LVTs for pre approval as necessary and swamp the system into submission. (I dont think this will happen - we are just not militant enough!) The DCLG may decide to review the thresholds which would at least reduce the number of consultations. 

Suffice to say I do not have a practical answer as to how we should be behaving yet, but I urge caution - a comprehensive approach will best serve your clients at this time. Sadly I do not believe that leaseholders are well served by continously revisiting accepted norms in what is already a complex area. Some clarification would be welcomed and I do think that, sooner or later, this case will lead to a revisit of the whole clunky and complex S.20 requirements. That must be a good thing. 

In the meanwhile do let me know if you do have a sensible solution won't you?!

Upper Tribunal slaps LVT repeatedly until it behaves

It has long been a concern of mine that the LVT does, from time to time, overstep its authority and is occasionally inconsistent in its approach. In particular my concerns have related to hearings where the panel have included matters not raised by either party. The LVT has no mandate to exceed its remit but, in my experience and anecdotally from other agents it regularly does, by either raising additional matters (outside of those raised by the parties) or pointing the applicant elsewhere. Of course, most landlords do not have the time or the resources to appeal these decisions and consequently the LVT has acted with a degree of impunity.


I am pleased to report however that time has been called on some of these practices and a series of Upper Tribunal (UT) decisions have clarified, in no uncertain terms, the limitation in the scope of what can be dealt with without both parties having the opportunity to comment, defend or put right.

There is an important principal at stake here. All parties have the opportunity to seek advice in advance of any action. It is not for the LVT to steer the applicant nor to assist their position - although I accept that the panel may direct them. In my view there is some bias, but no one should be surprised here. Landlords can turn up armed with barristers and deep pockets, but this is principally a forum for leaseholders to object to the activities of landlords and/or their agents and rightly they should be given direction if required. However courts and tribunals are limited to dealing with the matters in hand and should not feel free to open other avenues of investigation.

I have also recently seen a case where the manager had negotiated a new contract with a reduced management fee on the previous year. We might regard this as a normal commercial activity given the competitiveness of the market but an LVT panel has subsequently taken that to mean that previous year's fees must have been too high and reduced those to the same level. This is an absurd notion that puts all agents at risk of being penalised simply for negotiating in an effort to retain work. In the one-year contract environment in which we operate, who is to say that the fee wasn't correct in year one but reduced in later years due to familiarity and countless other commercial factors? The LVT should not be interfering in the market.

In another instance the LVT has decided that it would hear a case, despite there already being a county court judgement in the matter. In another the managing agent was made the respondent despite it clearly being the landlord. The list goes on, and all agents have stories of inconsistency, unfairness and of downright stupidity when it comes to dealing with this tribunal.

I expect more slappings to follow but I am also heartened by some of the cases I have read very recently. These included a recent case where the Chairman was at pains to point out the limitations of the LVTs jurisdiction and that, whilst the Act allows for discretion to be used, this is only where it is just and equitable to do so in all circumstances. In this instance the Applicants were reminded that the LVT could only deal with matters of payability and reasonableness under S.27A.

If you are interested in reading the pertinent UT cases (there are some good analyses online) they are as follows:

Redrow Regeneration (Barking) Ltd v Edwards - Lease terms are law, plain and simple, it is not for the developer to have to prove their right to collect charges.

Wales and West Housing Association v Paine - LVT reduced management fees. Landlord appealed, the UT held that this was not the matter raised.

Birmingham City Council V Keddie and Hill - LVT decided windows should not have been replaced at all. Again on appeal this was not deemed the matter that was raised.

Crosspite v Sachdev - LVT questioned payability of subletting fees. Overruled by UT who stated that payability was not the question, it was the amount that was disputed.



An excellent blog here:

http://nearlylegal.co.uk/blog/2012/10/how-many-times-to-i-have-to-tell-you/

And here:

http://www.lawandlease.co.uk/2012/10/28/1-redrow-regeneration-barking-ltd-2-barking-central-management-company-no2-ltd-v-1-ryan-edwards-2-adewale-anibaba-3-planimir-kostov-petkov-4-david-gill-2012-ukut-373-lc/