When is a Director not a Director?

by Readers Question

9:17 AM, 23rd September 2016
About 2 years ago

When is a Director not a Director?

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When is a Director not a Director?

I own a flat in a block of 12. Years ago 10 of us got together and purchased the Freehold. I am one Director and there is another Director of the company, however the other Director is one of the two owners who did not contribute to the purchase of the Freehold. regulations

I was surprised that this was allowed, but apparently the articles are worded that any owner may be a director.

I am now trying to get another Tenant down as a Director.  However, the I am told by the Management company that ALL Directors must agree, they have written to him with no reply and from what they tell me he does not respond to any of their requests regarding the flats.

Questions: Do all Directors Have to agree on a new Director?
If there is no response can it be presumed there is no objection?
If not is the only way to call a General meeting to install a new Director
If a Director does not carry out his duty can he be removed and is a General meeting required.

The Management company in question are doing everything they can to prevent this happening within the regulations as they are trying to push through additional charges to cover CDM changes and I will not authorise them.

Any help from anyone would be welcome

Ray



Comments

Neil Patterson

11:04 AM, 23rd September 2016
About 2 years ago

We are going to need help on this one, but in the mean time it is worth consulting the Leasehold Advisory service >> http://www.lease-advice.org/

David Price

18:13 PM, 24th September 2016
About 2 years ago

The management company works for YOU not vice versa, you do not even have to give them audience let alone take heed of what they say. It was presumably the current directors who appointed the management company and equally they have the power to dismiss it, subject of course to any contractual agreement.

The Companies Act 2006 in association with the Articles of Association will determine the situation. I feel it unlikely that a unanimous vote of the directors is required. Directors are normally appointed and removed by a majority vote of shareholders, an ordinary resolution.

168Resolution to remove director

(1)A company may by ordinary resolution at a meeting remove a director before the expiration of his period of office, notwithstanding anything in any agreement between it and him.

(2)Special notice is required of a resolution to remove a director under this section or to appoint somebody instead of a director so removed at the meeting at which he is removed.

(3)A vacancy created by the removal of a director under this section, if not filled at the meeting at which he is removed, may be filled as a casual vacancy.

(4)A person appointed director in place of a person removed under this section is treated, for the purpose of determining the time at which he or any other director is to retire, as if he had become director on the day on which the person in whose place he is appointed was last appointed a director.

(5)This section is not to be taken—

(a)as depriving a person removed under it of compensation or damages payable to him in respect of the termination of his appointment as director or of any appointment terminating with that as director, or

(b)as derogating from any power to remove a director that may exist apart from this section.

Call a general meeting to be sure of dismissing the unwanted director (very easy and as Neil says plenty of advice on the LEASE site).

Ray Doyle

9:44 AM, 25th September 2016
About 2 years ago

HI
Thanks for that, the Articles of Association are the standard of the shelf ones that say Directors must agree on the appointment of a new director, the management read this as being All directors of the company thats me and the other guy who is not responding.
There must be something some where other than the general meeting that allows for when a director doesn't respond for the voting in of another Director?
We are can have as many directors as we want if they are all members.
The Articles seem to contradict themselves as it says a director can only be a dwelling holder which the Director is.
But it also says only company shareholders, and I assume he is not as he did not pay a share?

Puzzler

10:26 AM, 25th September 2016
About 2 years ago

If he has absented himself from board meetings for six months without explanation you can terminate him I believe under Table A as long as the Articles do not contradict it. Obviously you may not have had any meetings but if he is not answering correspondence I would take it as read. Does he have support from other Tenants? You would need another director though as usually one is not enough for older companies.

David Price

10:27 AM, 25th September 2016
About 2 years ago

This gets more complicated as we go along. Is your company an RTM (Right to Manage) company? The Articles may be different to the Standard Company Limited by Shares. When was it formed as this may affect the Articles, I have assumed in my replies that it was a recent incorporation.
If it is an RTM company then it will be limited by Guarantee and members have to make application to join the company - at the same time giving a guarantee just in case the company is wound up. Check the list of members for your fellow leaseholder and director may not be a member.
If it is a company limited by shares then a general meeting is surely the easy way forward, it really is very easy to call a general meeting in such a small company, you need 5% of the members, in your case two, and a simple form which I am sure you can download from the LEASE site.
And what is all this nonsense about you being intimidated by the management company? It's YOUR company not theirs and they cannot dictate terms, the management company should have no influence at all over the running of your company. Like any advisor they are there to advise and you are free to ignore that advice. As one famous Prime Minister said, "Advisors advise, Ministers decide."

David Price

10:59 AM, 25th September 2016
About 2 years ago

Reply to the comment left by "Puzzler " at "25/09/2016 - 10:26":

You have a good point.
Irrespective of what anyone or any documentation says one of your options is to appoint another director and dismiss the errant director, provided of course you have the support of your fellow members. Present it as a fait accompli and leave him to take action if sees fit, my guess is he will not react in any substantive manner.
If the managing agent does not like this then dismiss it.

Puzzler

12:13 PM, 25th September 2016
About 2 years ago

It's not that easy to dismiss a director if he does not want to go, a special resolution at a meeting has to be proposed at which he can make his case. I think the six month rule is your best option. Note you can just terminate him at Companies House without explanation but that does not take into account the rules of so doing.

Ray Doyle

9:48 AM, 28th September 2016
About 2 years ago

Hi

Just had a E Mail from the management company after requesting the leaseholders details telling me this
Me to them

As requested please also send me details of the leaseholders of the management company as I am entitled to as a Director of the company.
Them to me

You have not addressed my valid concerns regarding issuing you with this data, if there is something you wish to communicate to other leaseholders then you can do that through ourselves. I have to be satisfied that you have a legitimate purpose for wanting this information to comply with the Data Protection Act – if I fail to do this then I am committing an illegal act.

HHHHEELLLPP

David Price

11:15 AM, 28th September 2016
About 2 years ago

Reply to the comment left by "Ray Doyle" at "28/09/2016 - 09:48":

I have assumed that you are a director of the management company and that his management company is employing the services of a 'managing agent'. When you refer to the management company I presume you mean 'managing agent'. If this is not the situation then my comments many be inappropriate.

Th Managing Agent works for you not vice versa. As a director of the management company you arguably have more right to the details of all the leaseholders than the managing agent. If the managing agent will not do as you tell it then dismiss it.

In any case you should have a complete list of all the members of your company, which presumably is all the leaseholders. Does the management company hold the freehold? Have you registered with Information Commissioner, not obligatory but desirable?

Ray please drop me an email and I may be able to help you as I have been in this sort of situation. july042012-118@yahoo.co.uk

Puzzler

22:37 PM, 2nd October 2016
About 2 years ago

As a director you are not subject to the Data Protection Act as if you were just another leaseholder. I am a little confused here as to your and their status. You talk about Management Company (of which you are a director?) but do you mean Agent? Can you be more specific as what you say does not make sense? You should be able to get a list of shareholders from beta.companieshouse.gov.uk

My email is rannd@hotmail.co.uk if you wish to discuss in more detail. I see David has made a similar comment. Two directors when one is not participating is actually an impasse as one director has no authority so should be resolved, the management cannot act without the agreement of both, so they cannot legally "push" anything through.


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