Thursday 2 April 2015

So your Landlord sorts out your buildings insurance? And sends you the bill?


You may be wondering what your rights are as the tenant and whether your Landlord can procure any insurance policy he wishes, at any cost and expect you to pay the bill.

I hope today’s blog will clear things up a little for you.

Let’s start with the basics first:

Where is your lease?
If you have a lease make sure you have a copy. Make sure it is a copy of the actual signed lease and not a draft. Print it out so you can annotate it and keep it in a safe place where you can lay your hands on it.

If you don’t have a lease but you are paying money to your Landlord (and there are many NHS occupiers like this at present,) this does not mean you don’t have a lease, it means you have a lease in Common Law.  Believe it or not it is possible to have a lease without having anything on paper. It can make things slightly more tricky and is not ‘best practise’ for Landlords, but is more common then you imagine, particularly in NHS shared premises.


Why have a lease in the first place?
Leases are generally a good thing to have because a lease is a contract that sets out the terms of the arrangement for your occupation of a property - so each party knows where they stand. In the commercial world it also is a document that protects tenants from being ‘thrown out’ on no notice – so affords safety in business continuity.  It also enables Landlords to forecast contractual rental income.  Landlords are agreeable to getting leases in place as it means they can borrow money from the bank against this guaranteed income – or if they have already borrowed the money, they can arrange to pay it back on preferential terms.

 
What sort of occupier are you?
GPs
If you are a GP Practise then I refer you to ‘The National Health Service (General Medical Services – Premises Costs) Directions 2013.  Part 5 covers ‘recurring Premises costs’. At Section 46 you will find the detail of ‘Payments in respect of running costs’.

This section basically provides you with the detail of what you will get reimbursed for under your GMS contract – including insurance. However under Section 47 you will see that you may, depending on the circumstances, only receive part payment of the cost of the service charges for your premises.  Furthermore, there are lots of costs that may be included in your actual service charge bill, that are not re-reimbursable under these Directions.

This means that it is in your Practise’s financial interest to minimise, where possible, these particular payments to your Landlord. This doesn’t mean that you refuse to pay for your insurance and service charges – but it does mean you should be seeking for transparency of these charges, to ensure they are 100% clear, justified and accurately reflect the lease contract.

Clinical Service Provider and charities
If you are providing a service/ charity work from an NHS property, then quite often you will want to know where you stand with using a property for the purposes of business planning.  For charities, under the Charity Commission rules, you will be aware that you must seek value for money when undertaking business and this means you need to be prudent when it comes to dealing with your financial undertakings – and therefor when dealing with your accommodation costs.

So how is your insurance bill arriving?
Some Landlords wrap the rent, insurance and service charge into one single bill. Others split out the invoice completely and send it on an invoice, quite separate from the Rent and service charge invoices.
There is no hard and set rule about how you should receive your insurance bill for your property. However this is what you need to know:
Your lease is key to setting out the basis of the insurance that your Landlord procures on your behalf. So if you have a lease – flick through with a highlighter and mark every single element which refers to insurance.
Most leases will have an insurance schedule located towards the back of the lease document and there will be a clause nearer to the front of the lease which sets out what you, as the tenant, must pay under the lease contract.  Often it will say ‘the tenant will pay for the costs buildings insurance as set out in Schedule X’ – and this will be the respective Insurance schedule at the back of the lease.

Tenants proportion?
In terms of the proportion of the bill that you must pay – this can be quite a complex issue – so I will save that for another day – so watch this space.
FSA Regulation of Insurance
Over recent times, EU Directives have led that most areas of insurance are now regulated by the Financial Services Authority (FSA). You can check here to see if your Landlord / their nominated managing agent should be registered with the FSA


Quite often, commercial Landlords will be deemed as registerable under the FSA if they are ‘acting in the administration and performance of a contract of insurance’.


What does this mean?
Most Landlords need to be registered by the FSA if they are involved with the procurement of insurance products for tenants.  If they are registerable under FSA rules then they fall under the ‘Treating Customers Fairly’ principles.  So even if it does not say explicitly in the lease, it is reasonable for you, as the tenant, to ask for a copy of the insurance that has been procured on your behalf plus details of all the costs involved in its procurement. 
So when you get a bill for insurance – make sure you contact your Landlord and ask for:
Details of their FSA registration. A copy of the insurance policy. Details of all costs being claimed (this includes any brokers fees.)
Once you have a copy of your insurance you need to check that the cover accurately reflects the cover that is set out in the insurance clause of your lease contract.  This is because the landlord must ensure that the insurance they have procured falls squarely within the scope of your lease.  If the policy does not comply with the lease contract, then the Landlord may not seek reimbursement from you, as his tenant.


Can the Landlord use any insurance company he likes?
The short answer for commercial leases is yes. The lease contract must be used as the basis of this arrangement, however, the Landlord is under a Common Law duty to ‘act properly’. Current case law has seen that it is not necessary for the Landlord to go out and get the cheapest deal, but Landlords do have to undertake the exercise of procuring the insurance ‘at arms length’ and the rate charged should be no more than the chosen insurer’s going rate for the policy in question.
Can the Landlord take a commission?
Unless the lease says otherwise, it’s generally accepted that the Landlord or his managing agent should not profit from placing insurance products without the Tenant’s consent. This means the Landlord should really give the Tenants the benefit of any discount they might receive and be transparent about this aspect.
What about broker’s fees?
The issue of broker’s fees has come up with a situation I have been dealing with recently. I have not been able to find much detail on this in terms of legal cases (yet), but where the lease does not mention that the cost of insurance brokers fees is rechargeable to a tenant, then I would be arguing that the broker’s fees are something that the Landlord has to pay and that these specific costs cannot be demanded. Clearly, if I discover information to the contrary, I will update this blog.
 
Supply of Goods & Services Act
What I have established is that there is case law in 1994, the arrangement by insurance by the Landlord is not something that is caught by the Supply of Goods and Services Act 1982.
 
So that’s the end of this blog for now. Will do another soon.
 In the interim if you have any queries about commercial service charges please refer to the property industry best practise - the RICS code practise guidance- which can be purchased here:
I believe it is £20 if you are not an RICS member
 


 

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