.....Letter to Agents re: Health & Safety investigation at Alexandra Tower Liverpool

OPEN LETTER TO LETTING / ESTATE AGENTS
(copy of letter emailed today to City Residential 31/03/2010)


Re: Car Parking at Alexandra Tower


Dear Sirs,

We would like to bring to your attention the difficulties that have been experienced by residents of Alexandra Tower, 19 Princes Parade, Liverpool, L3 1BF, specifically those relating to the car park attached to the building with access via a lift system.

We believe that there is ‘material information’ enclosed in this letter for which a statutory obligation for letting agents exists, in respect of disclosing said ‘material information’ to prospective tenants, enquiring about residing in Alexandra Tower.

It is noted that City Residential has been the principle agent for this building in both the residential lettings and residential sales capacity. However, other agents whom are acting in respect of this building will receive the same correspondence.



Parking not fit for purpose

It is argued by a number of residents with parking spaces and many of the Otis lift engineers whom have attended the building and effected temporary fixes of the lift, that the lift system installed is not fit for purpose. It has routinely been subject to long term mechanical failures owing to poor design, ineffective materials and components installed at the outset, and an incorrect software configuration.

Whilst, for the majority of the time, one lift does remain working, having a single access point in itself is cause for concern, but when combined with the faulty software the overall outcome is one of considerable delay. Sometimes these delays can be up to 45min at peak times to either enter or leave the car park.

At times, the failures result in a total loss of access to the car park, thereby trapping vehicles in the building, and preventing others accessing the car park to store their vehicles. This causes severe disruption, not limited to, loss of earnings and additional travel costs.

We are sure you can appreciate that over the last 18 months, with such prevalent problems, many tenants have decided not to renew their contract upon expiry. We are personally aware of more than a dozen such residents in the last 3 months alone. You will likely be aware of this, owing to some departing via your agency.

The recently formed Residents Committee has consulted with residents and the management company in a bid to solve the parking issue for the benefit of all concerned parties.

For your information, there is also an ongoing dispute between the buildings management agent (Thomson and Moulton), the developers (Millennium Estates) and their subsequent receiver (Zolphur Cooper), the controlling bank (Barclays), the original installer of the lift (Sheridan Lifts Limited ) and Otis, whom are currently attempting to manage the maintenance and ongoing issues of this known problem.

With so many parties to the dispute, and the magnitude of the problem at hand, the last 15 months have seen absolutely no progress to put in place a suitable resolution. At the time of writing the car parking system has seen a total outage to both lifts no less than 5 times in the last few days (3 of which alone were on the evening of Friday 8th) and a further complete outage from approx 7am yesterday the 11th to the afternoon of that same day

However, despite this abundance of information, we feel that despite yours, and other agent’s obligations, many residents whom have moved in over the last 6 months have not been made aware of the ongoing issues in the building, specifically in respect of parking. This is somewhat troubling when it can be argued that the issues have become widespread, well documented and well publicised by current residents and those leaving.

We can only guess that such omissions are an oversight on your part and that of other agents, likely as a result of office miscommunication and we are sure you wish to address this and prevent further omissions.



Statutory Obligations

Whilst we are sure, as such a prominent entity in the Liverpool residential market you value both residents and landlords and wish to offer a good service, we wanted to reiterate to you and all other agents, of your statutory obligations as we appreciate that sometimes there maybe a communication breakdown in an office environment preventing accurate and timely information getting to front line staff who will be handling queries about the properties you act as agents for.

Quite often, residential letting agents do forget about their obligations in respect of disclosures, or are perhaps not aware of them. We are sure that any such omission of any disclosure from City Residential if such an omission has taken place, has been, as indicated, an oversight.

We are also making sure that residential agents are aware that in recent years it is now also a criminal offence for an estate/letting agent to make certain statements about a property which are false or misleading.



Consumer Protection from Unfair Trading Regulations 2008

The new Act, which some agents may not be aware of, prohibits 'agents' (letting or otherwise) omitting material information from consumers, if that omission might cause the consumer to take a different decision. (See section 6 of the Act)

Material information is defined within the act as 'information which the average consumer needs, according to the context, to take an informed transactional decision'.

We would argue that the mechanical failures and the subsequent disputes between the parties mentioned earlier in failing to resolve the matter are material enough to warrant disclosure. However, with many residents having left (including those through your office) and more planning to leave upon tenancy expiry, citing the parking issues as the principle reason, that this would be further grounds for disclosure under ‘material information’ as prescribed by the act.

The possibility of lost earnings, additional travel expenses, damage to motor vehicles on the public highway and employment issues in respect of lateness and/or absence as a direct consequence of the car lift failure is also grounds for disclosure of ‘material information’ as all of the above have been experienced by numerous residents on numerous occasions.

The intention of this letter is to both remind all agents as to their obligations, and ascertain whether they will be disclosing the ‘material information’ to prospective tenants?

It must also be noted that The Health and Safety Executive are currently investigating residents safety concerns highlighted to them on recent admission by the management company, that a lift had been in service for a period of time with safety issues and subsequently taken out of service, which has remained out of service since Feb 10th this year.

If you are in any doubt as to the veracity of this correspondence we would encourage you to contact the buildings management agent (Thomson and Moulton), and speak to Tudor Roberts (0151 482 2567). He can confirm the authenticity of the issues this letter highlights. Failure to do so would not be considered a suitable defence to a breach of the act as the obligation is on the agent to take all reasonable steps to ensure compliance.

For the avoidance of doubt, we will include all residents, whether they have parking or not, within our residents updates and/or meetings. However, for the purpose of the ‘material information’ as prescribed by Consumer Protection from Unfair Trading Regulations 2008, and the intention of this letter for you to disclose such information, we do not currently deem letting agents liable for non disclosure to potential tenants in respect of properties without allocated parking. Furthermore, as prescribed in the act an omission is considered to have taken place upon your prior knowledge of material information, which you subsequently do not pass on to the consumer, whether or not they specifically ask for it.

Taking this point further, it would not be considered reasonable for the consumer to question an agent as to any conceivable issue that may or may not arise and as such, omissions in the context of the act, are limited to known information on your behalf.

We are sure you will be aware of this, however, it maybe prudent to make this point clear to your frontline staff.

As such, we deem this sufficient notice given to you, and other letting agents, of the current issues effecting Alexandra Tower which are deemed ‘material’, to enable you to comply with your statutory duties. Whilst we do not expect any agent to defy their statutory obligations, the Residents Committee will ensure that all new residents to the building will be given access to our findings/correspondence/meetings and in doing so, confirmation sought as to whether the car parking issue was informed to them prior to signing a tenancy agreement.

We would be grateful if you could confirm by return, your receipt of this correspondence and your intentions in respect of disclosing the information to potential tenants of this building.

.....Alexandra Tower and Letting / Estate Agents

Just a little spotlight on the legal aspects of either living in Alexandra Tower, or thinking about living in the building if you are either buying or renting.

If you are buying you are in luck, there are laws and regulations protecting you from misleading statements or omissions from estates agents, such as the Property Misdescriptions Act 1991, and the Estate Agents Act 1979.

However, despite such regulation, one of the most common gripes handled by the Ombudsman for Estate Agents is still "inaccurate sales particulars". In recent years however, it is now also a criminal offence for an estate agent to make certain statements about a property which are false or misleading.

Letting Agents like City Residential who handle the majority of Alexandra Tower sales&lettings, are not bound as tightly in their obligations to tenants, yet they and other letting agents could be falling foul of the law in respect of very recent legislation, namely the Consumer Protection from Unfair Trading Regulations 2008.

The new Act now prohibits 'agents' (letting or otherwise) omitting material information from consumers, if that omission might cause the consumer to take a
different decision. (see section 6 of the Act)

Material information is defined as 'information which the average consumer needs, according to the context, to take an informed transactional decision'.

As such, it would now seem that agents have to disclose the existence of any 'adverse information' on a property, without having to be asked, if that information would affect the consumer's decision.

It could certainly be argued that the car lift issues are 'material' in that if you were duly informed that on numerous occaisons, both lifts at Alexandra Tower fail, thereby denying you use of your vehicle, with related loss of earnings or employment issues as a direct result, that you would likely think twice before completing the transaction?

The old 'if they don't ask don't tell' excuse no longer applies so I would be keen to know if the estate/letting agents with any Alexandra Tower apartments on their books (e.g. City Residential) are in fact disclosing the issues to their clients (namely private landlords) or prospective tenants when they have an obligation to do so.

Sticking to the letter of the law, the car park issue could conceivably be withheld from tenants looking for an apartment to rent in Alexandra Tower without parking, as it could be argued that no material information exists in their case, seeing as they wouldnt be using the car lift.

However, aside from a building report, an argument exists that estate agents cannot omit the car lift issues, or other 'ongoing and persistent' issues from prospective buyers as such information would likely affect the overall 'resale' and rental value and could be argued to be 'material' even if it was not disclosed in a formal managment report.

Car Lift Outage - 27/10/2009

Like clockwork and on time to maintain its weekly outage status, the left hand lift (from street level perspective) is currently down!

Its only been 6 days since the last outage and during those six days both lifts have not exactly been fault free. If you are on any carpark floor other than the 1st you will know how frustating the problem is and how time consuming it is to wait and then use the lifts (or should I say 'lift').

The problem is that if you are on say the 4th level and you call up the lif and its not broken, when you get into it the lift then makes a stop at level 3, level 2, and level 1 on the way down to ground. If you are one of those people waiting to get out at level 3, level 2, and level 1 seeing this, you will (like the person in the lift) be somewhat put out at the wasted time.

Also, has anybody noticed that if the lift is in use, you cannot (like any other lift in the world) maintain your position in a queue. I know we Brits love to queue but its the fact that you have to repeatedly sit there pushing the call button on the fob every other minute or so until the lift has finished and you can call it? Why no queuing system?

Alexandra Tower - Ongoing Problems

Whilst the main issue at present seems to be the car lift, (and please post your comments on that), use this post to notify me of any other issues that you maybe experiencing and I can then post another category on that subject to get everyones response on any other issues.

I have started a dialogue with the management company and should be feel it useful, I have alerted the management company (Thompson Moulton), who are part of Sutton Kersch, about the feelings of many of the residents and the desire to arrange a Residents Meeting with all parties concerned.

At present there are several interested parties with their own agendas and at times it can be very frustrating for the residents in trying to get a) answers, and b) an outcome to the problems. As such, the bank and the reciever's interests may not lie directly with the residents and so in short, they should be made aware of the residents wishes and feelings (hence this forum).

Taking the car lift as an example, there is the original installer, the manufacturer, Otis who now manage the ongoing maintainance, the bank Barclays, the management company, the recievers who handled Millenium Estates liquidation, and the residents.

With the car lift, thats 7 parties with an interest and their own agenda, yet its the residents, and not any other party that has to directly put up with the problems and the fall out from them.