There are many reasons for forming and registering a limited company. Outlined below are a few reasons, which relate to flat management companies. This list is not exhaustive.
One reason for residents in a block of flats to have a limited company is to own the freehold or head lease. Freehold gives outright ownership of the property to the limited company. A head lease is a lease granted directly to the limited company, which turn grant subleases of the property (or parts of it) to the flat owners. For the purposes of this web-page, the difference between a company that owns a freehold and one that holds a head lease is immaterial.
However, residents often use a limited company for collecting a central pool of cash for carrying out repairs and maintenance to common parts of the property. If a limited company is used in the management of a block of flats it is often a condition of buying a flat that the buyer becomes a member or shareholder of the company. In some cases all flat owners automatically become directors.
Another reason to set up a limited company is so that leaseholders of flats can exercise their right to manage the building they live in. The right to manage must be exercised through a limited company set up for that purpose. This type of company is called a right to manage (RTM) company (please refer to the relevant section of our web-site).
In law, a limited company is seen as an 'individual' in its own right. This means it can own property (such as a freehold or leasehold) and enter into contracts in its own name. It exists independently and separately from the people involved. As the name suggests, many are connected to blocks of flats where an arrangement needs to be made to deal with the running, maintenance and repair of the common parts of the building.
The leaseholders of the flats are the members of the company, some will be appointed to act as directors and one will usually be the company secretary. They may appoint a managing agent to carry out the day-to-day work, or one may be specified in the leases with the freeholder.
The freeholder of the land on which the flats stand may be held by a third party, or it may be held by the management company (so that the leaseholders have the ultimate benefit of the freehold). The simplest form of flat management company is a dormant one which holds the freehold of the land for the members of the company, who are leaseholders of the flats built on that land.
This type of company can also provide a structure for the management of the common parts of private freehold estates of houses, which may include roads, communal gardens, security and other facilities. A corporate body is needed to hold land, unless there are four or fewer lessees concerned, in which case the freehold of the land could be held jointly in the lessees' own names.
However, if the freehold is held directly by the lessees jointly, then each time a flat changes hands, apart from the transfer of the lease on the flat, there would need to be a transfer of the freehold into the new set of names in the Land Registry. Getting all the necessary signatures and consents would take time and add to costs. The use of a flat management to hold the freehold avoids the problem.
A flat management company may be incorporated under the Companies Acts, either as a limited company with shares, or a company limited by guarantee. Either of these forms of incorporation provides limited liability for its members, subject to the usual caveats in the insolvency legislation about trading properly. Each also provides a corporate vehicle that can hold the freehold (or head lease) which underlies the various occupiers' leases.
It can also collect maintenance charges and any ground rents, hold a sinking fund for major repairs, arrange cleaning, decoration, security, insurance, a warden's salary for sheltered schemes and janitorial or concierge services where appropriate.
The company limited by shares was designed for profit-making enterprises, but with properly drafted articles also works well for flat management companies. When the related property interest changes hands, the leaseholders' share also has to be transferred by a stamped stock transfer form (often for a token payment with minimum (5.00) stamp duty paid) and the change recorded in the register of members. Coddan's articles provide a special procedure to facilitate the transfer of the relevant share if a lease has changed hands but the transfer of the share was overlooked.
The company limited by guarantee was intended to provide a form of incorporation with limited liability suitable for a group of members with a mutual interest of a not-for-profit nature. The main advantage of using a guarantee company rather than a company limited by shares is that no stamped transfer is needed on changes of members (on sale of the related lease).