TERMS AND CONDITIONS

 

 

  1. The ‘Client’ means the resident management company, right to manage company, or other landlord named in the cover sheet to this agreement.

 

  1. The ‘Manager’ is the managing agent named in the cover sheet to this agreement.

 

  1. The ‘Property’ is the estate, scheme, or development named in the cover sheet to this agreement and as described at the end of this agreement.

  2. The ‘Management Fee’ is the fee set out in the fee agreement in Appendix I.

 

  1. The ‘Services’ mean the services set out and the frequency specified in Appendix II.

 

  1. ‘Additional Charges’ are the charges listed for additional services in Appendix III.

 

  1. ‘Term’ – this agreement is for a period of 364 days from (insert date).

 

  1. The ‘Parties’ means the Client and the Manager.

 

  1. ‘ARMA’ means the Association of Residential Managing Agents whose website is http://www.arma.org.uk

 

  1. ‘RICS’ means the Royal Institution of Chartered Surveyors whose website is http://www.rics.org

 

2Appointment

 

  1. The Client appoints the Manager to be its managing agent for the Property for the Term.

 

  1. The Client agrees to the terms of this agreement and will be deemed to be bound by them upon either:

 

  1. Signature of the agreement by the Client and the Manager: or

  2. The manager has commenced provision of the Services and the agreement will be deemed to have come into effect from the date of the provision of the first of such Services.

 

  1. Where pursuant to clause 2.2 the terms of the agreement are accepted by the Client after the Manager has commenced provision of the Services, the agreement will be deemed to have come into effect from the date of the provision of the first of such Services.

 

3Services to be provided by the Manager

 

  1. The Manager will perform with reasonable care, skill and diligence the Services set out with the frequency as agreed and specified in Appendix II for the Management Fee as set out in Appendix I.

 

  1. The Manager will provide additional services for the Client for Additional Charges as set out in Appendix III.

 

4Compliance with the Provision of Services Regulations 2009 (as amended) The Manager has provided to the Client the following information:

 

  • Details of its legal status;

  • Its office address for communication including e mail address and telephone numbers;

  • VAT registration number;

  • Its ARMA membership and details of where that membership can be checked;

  • A copy of its complaints handling procedure;

  • Details of the ombudsman scheme that it is required to join as a member of ARMA; and

  • Details of the public indemnity policy that it holds.

 

5Conduct of the Manager

 

  1. The Manager will comply with the terms of the leases of the Property.

 

  1. The Manager will comply with the requirements of ARMA and the Service Charge Residential Management Code of the RICS as appropriate.

 

  1. The Manager will comply with relevant landlord and tenant legislation relating to the management of the Property.

 

 

  1. The Manager will comply with health and safety, fire safety, employment and all other relevant laws and regulations relating to the management of the Property.

 

  1. The Manager will hold professional indemnity insurance including fidelity cover and maintain it during the Term. On request, the Manager must give the Client a copy of the certificate of insurance.

 

  1. The Manager will comply with the rules of the Financial Conduct Authority when carrying out any regulated insurance activities.

 

  1. The Manager will at all reasonable times allow the Client access to all records and accounts appertaining to the management of the Property.

 

6Conduct of the Client

 

  1. The Client will use its best endeavours to ensure the handover of the documents listed in Appendix IV, the Takeover List, to the Manager.

 

  1. The Client will not issue any instructions to the Manager that require it to breach the leases of the Property, legislation, the recognised Codes of Practice or any regulations relating to the management of the Property.

 

  1. The Client will act in a manner that ensures there is no unlawful discrimination in the provision of services, the sales and lettings of units at the Property and the employment of any staff or contractors.

 

  1. The Client will not give instructions to the Manager’s staff working solely at the Property. Any instructions should be given through the Manager’s nominated representative as agreed between the Parties.

 

  1. The Client is not required to arrange and hold directors’ and officers’ liability insurance for the Term but is advised to do so. On request, the Client will give the Manager a copy of any such insurance certificate.

 

  1. The Client will keep the Manager informed of any notices, sales of leaseholds or freehold, possible formation of resident associations, exercise of the right to manage, enfranchisement and any other matter relating to the management of the Property of which the Client becomes aware.

 

  1. When oral instructions are given by the Client to the Manager, these should be confirmed in writing by post or email within 7 days.

 

7Disclosures, Commissions and Associated Companies

 

  1. The Manager has no arrangements with insurance companies/brokers and other contractors that allow the receipt of commissions and confirms it will not do so during the Term of this agreement.

OR

The Manager has disclosed in writing to the Client all commission arrangements that may apply to its management of the Property.

 

  1. The Manager is authorised by the Client to retain/not to retain the commission from the arrangements already declared.

{State arrangements if to be retained}.

 

  1. The Manager will disclose any future commission arrangements that it may wish to enter into during the Term of this agreement before so doing and seek the consent or not of the Client to any such arrangement.

 

  1. The Manager has disclosed to the Client the details of any related companies with whom the Manager has an interest.

 

  1. The Manager will not award any contracts for services or works of any kind to those associated companies without the prior consent of the Client.

 

  1. The Manager has disclosed to the Client any relationship, other managements or interest of any kind it has with the freeholder/ landlord of the Property if the Client is not the freeholder/landlord.

 

8Fees and charges

 

  1. The fees and charges payable by the Client to the Manager are as set out in Appendices I and III and are payable without any right of set-off against any other account with the Client.

 

 

  1. The Client will authorise the payment of the sums due under clause 8.1 within one calendar month of receiving a statement/ invoice setting out the amount claimed and the services performed for which payment is claimed.

 

OR the Client authorises the Manager to deduct the Management Fee and Additional Charges from the designated bank account on the dates set out in the Fee Agreement.

 

  1. The Client will pay the Manager a setting up fee as specified in Appendix I for the work involved in setting up the management arrangements for the Property. The fee must be paid as soon as this agreement is signed.

 

  1. The Client will pay to the Manager interest on any overdue fees and charges payable by the Client to the Manager at the rate of 1% over base rate of Barclays Bank from the date the fee or charge became due until the date of payment.

 

9Handling of Client’s Money

 

  1. The Manager will comply with statutory and ARMA’s rules for banking and holding any funds of the Client in a clearly designated bank account(s). Any such client funds must be held in trust.

 

  1. The Manager will open a designated bank account(s) on behalf of the Client in the name of the Property or name of the Client for the receipt of all money due to the Client and the payment of expenses relating to the Property.

And/or The Manager will open a designated bank account(s) on behalf of the Client in the name of the Property or name of the Client for the receipt of reserve fund(s) contributions made by leaseholders.

 

  1. The Client authorises the Manager to make payments for the benefit of the Property (or within the limits set out in 9.6 below) from the designated bank account(s) held for the Property.

 

  1. The Client authorises the Manager to deduct any outstanding Management Fee and Additional Charges from the designated account after this management agency agreement terminates.

 

  1. It is hereby agreed that any interest earned on the designated account(s) shall be a credit to that account(s) .

 

  1. The expenditure authorisation limit of the Manager without referral to the Client shall be £ inclusive of VAT (per item or per

flat), however this shall be within the overall context of any annual service charge budget.

 

  1. The Manager will notify the Client as soon as possible of any lack of funds to pay for the services. The Client shall put the Manager in funds to pay for services required if there is a deficit for any reason and the Manager may cease to provide services if no funds are available.

 

10Liability

 

  1. No liability shall be attached to the Manager either in contract or in tort or otherwise for any loss, injury, damage or legal or other expenses sustained as a result of:

 

  1. The Manager having reasonably relied upon the Client to provide accurately all relevant information;

 

  1. Any inaccurate forecast by the Manager of future income or expenditure unless done so negligently;

 

  1. Any defect in the Property, or plant and machinery, equipment or materials used for the property, whether or not such defect be latent or apparent upon examination;

 

  1. The act, omission or insolvency of any person other than the Manager.

 

  1. The Client shall indemnify the Manager in respect of any claims made by another or third party for any loss, damage or legal and other expenses incurred as a result of any one or more of those circumstances listed in 10.1 (a) to (d) above.

 

  1. The Manager shall not be liable to indemnify the Client in respect of any claims made by another or third party for any loss, injury, damage or legal or other expenses incurred as a result of any one or more of those circumstances listed in 10.1 (a) to (d) above unless it be as a result of the Manager’s negligence.

 

  1. The above shall not be valid insofar as prohibited by statute

 

 

 

  1. In no circumstances shall the Manager be liable for any consequential loss or damage save where loss, death or injury results from negligence on the part of the Manager.

 

11Assignment

 

This agreement may only be assigned by the Client or the Manager with the written consent of the other party to this agreement.

 

12Ending this Agreement

 

  1. This agreement will end at the expiry of the Term as allowed for in 1.7 above, subject to the either Party providing (insert time period agreed) prior written notice.

 

  1. This agreement may be terminated at any time by the mutual consent of the parties in writing.

 

  1. The Client may end this agreement at any time in writing if:

 

  1. The Manager is in breach of this agreement, and the Client has notified the Manager of that breach in writing, and the breach has continued for 30 days after that notice; or

 

  1. The Manager becomes insolvent or makes other arrangements with its creditors; or

 

  1. The leaseholders of the Property exercise the right to manage or enfranchise or a manager is appointed by a Tribunal.

 

  1. The Manager may end this agreement at any time in writing if:

 

  1. The Client fails to pay the Management Fee or other Additional Charges owing to the Manager within one calendar month of notice of the fee and charges; or

  2. The Client acts in a way that prevents the Manager from performing its Services under this agreement and more specifically is in breach of 5.2 or 5.3 above.

 

  1. When this agreement is ended the Manager will handover to the Client the documents itemised in Appendix IV, the Handover List, if they are in its possession.

 

  1. Unless agreed otherwise all documents created by the Manager during the period of this management agreement for the Client shall belong to the Client.

 

13Membership of the Association of Residential Managing Agents

 

If the Manager ceases to be a member of the Association of Residential Managing Agents (ARMA) the Manager will notify the client in writing of membership ceasing within 28 days of the cessation occurring.

 

14Dispute Resolution

 

If any dispute arises over the interpretation of or compliance with the specific clauses in this agreement, the Parties will attempt to settle it by negotiation. Each of the Parties is to be represented by a person who is a director, or of equivalent executive authority, with authority to settle the dispute.

 

If the Parties have not settled the dispute by negotiation within 56 days from when the dispute began (or sooner if the Parties agree) the Client can refer the dispute to the relevant Ombudsman scheme of which the Manager is a member.

 

15Data Protection

 

  1. The Manager confirms its registration with the relevant supervisory body (currently The Information Commissioner’s Office), and its compliance therewith.

 

  1. In its fulfilment of this agreement, the Manager will process data in relation to individuals. The Manager confirms that its processing activities are in compliance with the General Data Protection Regulation (GDPR). The Manager confirms it will only hold and retain information for the purpose of fulfilling this Agreement.

 

 

 

  1. The Manager confirms its adherence to the security principle under the GDPR, in particular that appropriate organisation and technical measures are in place to safeguard such data in relation to individuals.

 

16Communication between the Parties

 

  1. Any communication or instruction from the Client to the Manager shall be made by a director or secretary of the Client or person of equivalent executive authority.

 

  1. Service of written communications shall be by first class post to the address shown on the front cover of this agreement, by fax or email. Notice to end this agreement shall be by registered or recorded delivery post only.

 

  1. Any communication in writing will be deemed to have been served on the third working day after posting, faxing or emailing.

 

17Waiver

 

If either party at any time agrees to waive its rights under this agreement, then that waiver does not prevent the party insisting upon its rights at any other time.

 

18Legal Jurisdiction

 

  1. This agreement shall be governed by the law of England and Wales.

 

  1. Each party agrees to abide by the jurisdiction of the courts of England and Wales over any claim arising from this agreement.