Dealing with persons other than the leaseholder
19th November 2021
19th November 2021
The topic of this week’s Legal Update comes at the request of one of our subscribers; namely what are the considerations when dealing with (or accepting payments from) a third party who is not the actual leaseholder or tenant of the property. This is not uncommon, and generally not problematic, but there are considerations for landlords, RMCs and RTM companies, to ensure they are not caught out.
The scenario is this. A property is subject to service or rent charges. The leasehold owner might be in residence or they may not. However, there is another party, not the owner, who appears to deal with the property, often another family member of the owner or perhaps an agent appointed to let the property on the owner’s behalf. They may reside at the property or they may not, but they are the only person whom you seem to have contact with. They also appear to be the one making payment of charges due in respect of the property, notwithstanding that they are not an owner.
Can you deal with them, and to what extent?
There are a number of things to consider in this scenario :-
1. Can you disclose information to this person?
This question comes down to the authority you have from the actual owner, and the extent of that authority. It follows that you can only disclose information to the third party to the extent that you have been given authority from the actual owner.
You should therefore insist that any request from the actual owner to release information to a third party, specifically authorises that disclosure in writing (preferably a signed letter, unless sent from an email address known to belong to the actual owner), setting out the extent of the authority (what you can disclose) and to whom. The authority may be wide ranging in the sense that you can discuss and disclose all information relating to the property, or it may be limited (for example, to service charge matters only). This needs to be clearly set out and, if there is any uncertainty over the extent of the authority provided, you need to question this so there is no doubt in the event of you being asked for information by that third party.
Discussing matters regarding the property or the owner without authority from the owner may otherwise cause you as managing agents, landlords, RMCs or RTM companies, problems or complaints in the sense of any breach of confidentiality or data protection.
2. Who should your demands and other documents be served upon and who should they be addressed to?
(i) On whom should you serve demands, notices and correspondence?
A secondary but related point to the one above, but this one also all comes down to authority.
In the absence of any authority or instruction from the actual owner to the contrary, all demands must still be served on the actual owner at their nominated address for service, which may either be set out in the notice of assignment when the owner purchased the flat, or some other subsequent written notification setting out where demands and correspondence should be sent to the owner.
It may be that the authority given under point 1 above includes a request that all demands and correspondence regarding the flat are sent to the third party, in which case the address for service can be adjusted accordingly.
The only exception to the above being if the lease prescribes where notices and documents relating to the lease must be served, for example in accordance with Section 196 of the Law of Property Act 1925 (e.g. the last known abode or place of business for the lessee), in which case, the demands must be served to that address. It is, however, most uncommon for leases to say that demands and notices must be served in that way. Where Section 196 is incorporated into the lease, this is usually permissive, e.g. service may be effected in that way or even deemed served if served in that way (in other words, at the election of the landlord). In most cases this will not apply, but it is worth checking if the lease does make provision for how demands should be served. Where Section 196 is not incorporated, it is necessary in the event of later dispute, to prove that the demand or correspondence has come to the attention of the owner (or person they nominate to receive demands on their behalf), hence why you will need to keep clear records of the requested address for service and the address where the relevant demand, notice or correspondence was sent.
Insofar as you have been asked to served demands, notices or correspondence by email please see here our previous Legal Update as to whether that will amount to good service.
(ii) To whom should the demand, notice or correspondence be addressed?
It is most important that, irrespective of where the demand or correspondence is being sent, the name on the demand, notice (including section 20 notices) or correspondence, remains the actual owner’s name, and not that of the third party. Although the third party may be instructed to deal with the property, receive documents and make payments in respect of the property (for which, see below), the actual owner remains the liable party under the lease or transfer deed, and as such the demands must be properly addressed to them. The covering letter can always be addressed to the actual owner ‘care of’ the third party, at their nominated address.
You should never change the address for service to the third party address (or any other address) without the express written authority of the owner (preferably a signed letter, unless sent from an email address known to belong to the actual owner).
(iii) Address for service of proceedings
Note that, in the event of Court proceedings being necessary, the actual owner will need to be served at their actual residential address notwithstanding where service charge demands have been sent. Therefore it is sensible, in cases where you know demands and correspondence are being sent to an alternative third party address, to request the owner’s residential address for your records, to avoid any additional costs or delays in the event of proceedings.
3. Can you accept payment from a third party in any circumstances?
If the demands have been validly served at a correct address and in a valid form, then it really matters not who pays the demand, whether that be a third party or the actual owner of the property.
The fact that a third party is paying the service or rent charges does not change the contractual relationship between you as the landlord, RMC or RTM company, and the actual owner liable to pay the charges (there are exceptions that apply here such as court order, insolvency, death etc). Therefore, in practice this should not be cause for concern, particularly where you are aware that a third party manages or deals with the property for the owner, for whatever reason.
The only, and rarely considered, point to make under this heading is that of concerns as to money laundering, but in the main course of business you will have little or no concerns regarding monies received in response to a demand.
Generally speaking a request to deal with a third party and receipt of payments from a third party should be little cause for concern, provided you are satisfied that you have the full and clear authority to disclose information to that third party from the actual owner of the property.
If in doubt, always double check the legitimacy of any request for information or change of address with the actual owner liable to pay the charges and always:-
Require any such request to be provided by the actual owner in writing (preferably a signed letter, unless sent from an email address known to belong to the actual owner); and
Retain all such notices and relevant correspondence in such a manner as they are easy to locate, should any questions as to the validity of an address or name be raised at a later date (for more on this, see our previous Legal Update on ‘avoiding excuses for late payment’ here).
If you have any queries whatsoever, please get in touch with a member of the team on 01435 897297 or email@example.com.
This legal update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.
If you have received this update in error or wish to unsubscribe from future updates then please email us at firstname.lastname@example.org.
Sign up to receive FREE regular Legal Updates by email