# Management Co. posting defaulters list, how legal?



## Mers1

If anyone can help from a legal perspective here please.  

Can a management company publish the apartment numbers of those who have not paid their management fees?  I think not, that surely leaves themselves open to defamation of character/libel?

Can anyone confirm please.  Many thanks


----------



## jrewing

Is it defamation/libel if the list they publish is correct ?

You could probably get some information from your local Citizens Information office.


----------



## mf1

I can't see any problem. If they have not paid, its a simple question of fact. 

mf


----------



## CCOVICH

And in any case-if you sue your own management company, surely you will be partly liable for the costs as a member of that company?


----------



## ClubMan

Mers1 said:


> Can a management company publish the apartment numbers of those who have not paid their management fees?


Publish them where? If in the circulars sent to management company shareholders/members (i.e. housholders) then I can't see anything wrong with that. My own management company does that. In fact the management company may even be obliged to publish such details in order to keep members apprised of the situation with regard to management fee arrears.


----------



## Thrifty1

Ours are also publishing a list of apartments who havent paid the fee (being given to other apartment owners), this was requested at last AGM.

As another poster said a defense for libel is truth of the statement.


----------



## Mers1

Thanks all for your input, 

Just felt that regardless whether it is true that they owe money,  everyone had the right not to have thier good character assasinated??


----------



## BlueSpud

Mers1 said:


> Thanks all for your input,
> 
> Just felt that regardless whether it is true that they owe money, everyone had the right not to have thier good character assasinated??


 
Is that not an oxymoron?


----------



## CCOVICH

I don't see how statement of fact = character assassination.


----------



## csirl

> Just felt that regardless whether it is true that they owe money, everyone had the right not to have thier good character assasinated??


 
Someone who hasn't paid isn't off good character.


----------



## Thrifty1

Exactly, they are in breach of a legally binding agreement and are depriving other owners/members of funds required for the upkeep of the complex. Name and shame i say.


----------



## Mers1

Ok point taken, thanks all.


----------



## BlueSpud

Mers1 said:


> Ok point taken, thanks all.


 
Fair dues.  It is not often that someone accepts medicine they don't like.


----------



## RainyDay

There could be issues with data protection legislation - check with the Data Protection Commissioner.


----------



## ClubMan

RainyDay said:


> There could be issues with data protection legislation - check with the Data Protection Commissioner.


Even if they just publish the address of the household in arrears and the amount of the arrears but no names? That's what our management company do anyway.


----------



## Towger

ClubMan said:


> Even if they just publish the address of the household in arrears and the amount of the arrears but no names? That's what our management company do anyway.



I don't see how circulating a list of company debtors to the owners/shareholders of the company is a breach of the Data Protection Act.

Towger.


----------



## beldin

I suppose they can always post the names of those who have paid along with a little thank you note. That way they won't be mentioning the people who haven't paid.


----------



## Mers1

Morning all, 

Just spoke to Data Comm's office who confirmed that Mangagement Companies are not enititled to publish this type of information; be it the name and address of the default apartments or just the address.  

Thanks for all the posts appreciate it.


----------



## CCOVICH

If the management agreement says otherwise (i.e the document signed by all owners at purchase), I wonder does the DPC's opinion still stand?


----------



## KalEl

CCOVICH said:


> If the management agreement says otherwise (i.e the document signed by all owners at purchase), I wonder does the DPC's opinion still stand?


 
Is a contract or agreement permitting an illegal practice not redundant?


----------



## ubiquitous

It would hardly be illegal if those involved sign away some or all of their rights under data protection legislation - which is a regular feature of bank loan agreements, for instance.


----------



## money man

If as a shareholder in a management company you have paid your service charge and certain work cannot be completed due to lack of funds (because others have not paid) are you entitled to see who has paid and who has not contributed by requesting a copy of the debtors list from the managing company?

I would imagine that you would be entitled to have such information?


----------



## KalEl

ubiquitous said:


> It would hardly be illegal if those involved sign away some or all of their rights under data protection legislation - which is a regular feature of bank loan agreements, for instance.


 
I could be wrong but surely your solicitor would point this out when you were purchasing the property. Signing away any right is significant and would be mentioned.
I met our management agent some months back in my capacity as treasurer of our committee and she actually had the list of defaulters but would not under any circumstances show it to me even after we had a few drinks.
My own opinion is the names should be published. Essentially all owners are shareholders in the management company. In any company the "partners" are entitled to know if one of them has not inputted their share or is taking the company for a ride so as such this is not private information.


----------



## mf1

The Data Protection answer given depends on what question was asked.
Can the Management company publish? Depends on where and how. And if it is to other members and shareholders, I say yes, they can publish. Otherwise it makes no sense -how else does the Management  Company function if members cannot be told who has paid and who has not. 

mf


----------



## ubiquitous

KalEl said:


> I could be wrong but surely your solicitor would point this out when you were purchasing the property. Signing away any right is significant and would be mentioned.



I would look at this another way. The householder has certain rights under Data Protection legislation. They also have certain rights to have their interests protected by the management company. If the effect of data protection law was to hamper the management company in doing its job in protecting the members interests, it could surely be argued that the latter rights outweigh the former.


----------



## money man

This is a very interesting discussion. There are many conflicting interests and rights. We only have one conclusive statement so far from the DPC from the original poster. Im not sure what question was asked. I have sent a written query to the office of the DPC and will post both query and answer here when/if i get a response.


----------



## Towger

Mers1 said:


> Morning all,
> 
> Just spoke to Data Comm's office who confirmed that Mangagement Companies are not enititled to publish this type of information; be it the name and address of the default apartments or just the address.
> 
> Thanks for all the posts appreciate it.



What do they mean by publish. We are not talking about putting an advert in the Irish Times. So as a shareholder in a company, am I not entitled to walk into Accounts and ask a list of debtors or publish them in the annual accounts?


----------



## Mers1

All, 

Question put to Data Comm people this morning was:

"Can the Management C'tee send a list by way of letter to all of the apt. owners stating that there are a number of apt owners who still have not paid their fees? This letter would either outline the names and addresses of the defaulters or just the addresses.  It would also outline that the reason some necessary works have not been carried out is partly because of this" 

Answer no, under the Data Protection Act S2(1)d. Which in itself is vague but apparently broad enough that any one of the defaulters would have the right to legally challenge the Management Co. for release of information relating to them.


----------



## ubiquitous

Mers1 said:


> All,
> 
> Question put to Data Comm people this morning was:
> 
> "Can the Management C'tee send a list by way of letter to all of the apt. owners stating that there are a number of apt owners who still have not paid their fees? This letter would either outline the names and addresses of the defaulters or just the addresses.  It would also outline that the reason some necessary works have not been carried out is partly because of this"
> 
> Answer no, under the Data Protection Act S2(1)d. Which in itself is vague but apparently broad enough that any one of the defaulters would have the right to legally challenge the Management Co. for release of information relating to them.


S2(1) of the DATA PROTECTION (AMENDMENT) ACT 2003 reads as follows [broken link removed]  (S2(1)d in bold)



> ‘sensitive personal data’ means personal data as to—
> (a) the racial or ethnic origin, the political
> opinions or the religious or philosophical
> beliefs of the data subject,
> (b) whether the data subject is a member of a
> trade union,
> (c) the physical or mental health or condition
> or sexual life of the data subject,
> *(d) the commission or alleged commission of
> any offence by the data subject, *or...



I don't think that failure to pay a (non-statutory) debt could be interpreted in any way as being "the commission or alleged commission of (an) offence" 

I would therefore question whether the advice you received is correct.


----------



## money man

To say that you have the right to legally challenge ...this is pretty vague!!!! People have the right to legally challenge anything they like ! That doesnt in itself say whether they have any basis under the legislation for a successful case?


----------



## Mers1

Ubiquitous/All, 

Appears maybe conflciting info,this is what I was directed to (step-by-step may I add) on their website: 

[You have certain *key responsibilities* in relation to the information which you keep on computer or in a structured manual file about individuals. These may be summarised in terms of eight "Rules" which you must follow, and which are listed below. Click on the links to see more information

_"appropriate security measures shall be taken against unauthorised access to, or unauthorised alteration, disclosure or destruction of, the data, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing"
- section 2(1)(d) of the Act_

The security of personal information is all-important. It will be more significant in some situations than in others, depending on such matters as confidentiality and sensitivity. High standards of security are, nevertheless, essential for all personal information. Both "data controllers" and "data processors" must meet the requirement to keep data secure.]

??????


----------



## Humpback

ubiquitous said:


> S2(1) of the DATA PROTECTION (AMENDMENT) ACT 2003 reads as follows [broken link removed] (S2(1)d in bold)
> 
> 
> 
> I don't think that failure to pay a (non-statutory) debt could be interpreted in any way as being "the commission or alleged commission of (an) offence"
> 
> I would therefore question whether the advice you received is correct.


 
I have been told that I am contractually obliged to pay my management fee - whether or not the management company are providing the service they are supposed to.

Therefore, by not paying I am apparently in breach of contract - is that not therefore an offence of some kind or other?


----------



## bond-007

All this reminds me of the time a parish priest published a list of people who did not contribute to the church. Shamed a few into paying.


----------



## TreeTiger

Mers1 said:


> ... Data Comm's office who confirmed that Mangagement Companies are not enititled to publish this type of information; be it the name and address of the default apartments or just the address.


Just out of curiosity, are the Management companies allowed to publish the names of those who DID pay?


----------



## ClubMan

bond-007 said:


> All this reminds me of the time a parish priest published a list of people who did not contribute to the church. Shamed a few into paying.


Not really the same thing since the parishioners would not have had a legal contract with the church.


----------



## Towger

bond-007 said:


> All this reminds me of the time a parish priest published a list of people who did not contribute to the church. Shamed a few into paying.



I have seen the COI (in the days before the data protection act, but could still be done) send a list to all parish members of what each family paid during the year. Now that Pope is German, is may only be a length of time before Parish Priest the lecturing his parishioners on the important of donating their 10% of earning each week.


----------



## Bronte

Brillant TigerTree - ask those who did pay to sign that their names can be published plus their house/apartment no.  Those who have paid would be happy to do so particularly as they would be annoyed that work was not done due to defaulters and based on that list everybody would know who did not pay.


----------



## ubiquitous

ronan_d_john said:


> Therefore, by not paying I am apparently in breach of contract - is that not therefore an offence of some kind or other?



No - breach of contract in this instance would surely fall under the remit of civil law. Failure to pay a trade debt for example is not in itself a criminal offence.



> ask those who did pay to sign that their names can be published plus their house/apartment no. Those who have paid would be happy to do so particularly as they would be annoyed that work was not done due to defaulters and based on that list everybody would know who did not pay.


I think this is an excellent solution,


----------



## csirl

> Question put to Data Comm people this morning was:
> 
> "Can the Management C'tee send a list by way of letter to all of the apt. owners stating that there are a number of apt owners who still have not paid their fees? This letter would either outline the names and addresses of the defaulters or just the addresses. It would also outline that the reason some necessary works have not been carried out is partly because of this"
> 
> Answer no, under the Data Protection Act S2(1)d. Which in itself is vague but apparently broad enough that any one of the defaulters would have the right to legally challenge the Management Co. for release of information relating to them.


 
I think that the question to the Data Protection Commissioners was framed incorrectly. According to the information contained in your question, it is not possible for the DPC to know whether or not the apartment owners have any connection with the management company other than as customers. 

The correct way to phrase the question to the DPC might be:

"Can the Management Company (or any company) provide the names and addresses of debtors to its own owners?"

I dare say that the answer will be "yes". Think about it, the Management Company is usually owned by the apartment owners, so they are one in the same thing - the management company by circulating the debtors list to itself (i.e. the owners) is regarded as internal circulation within an organisation. It is not "publishing" or giving the information to third parties outside the organisation.

The impression given by your question is that the management company may be circulating debtors details outside its own ownership (which is technically possible if the management company is not owned by the apartment owners).


----------



## money man

The last post is well written and logical. I would like to see if it holds weight though? Does anyone agree? It sounds incredible that a company could not let its owners/shareholders know who owes them money?


----------



## AKA

mf1 said:


> The Data Protection answer given depends on what question was asked.
> Can the Management company publish? Depends on where and how. And if it is to other members and shareholders, I say yes, they can publish. Otherwise it makes no sense -how else does the Management Company function if members cannot be told who has paid and who has not.
> 
> mf


 

I was thinking along the following lines (if we get the list of non payees from the agent)

1. advise all residents via leaflet drop that we will be publishing all non payees by further leaflet drop

2. possible internet posting on our estate website after subsequent leaflet drop (perhaps with password protection as other estates, companies have done on neighbours.ie) 

Since we cannot even get a non payee list from our agent it's not looking too good.


----------



## shesells

Our accounts list all the units in the development and notes are arrears or excess payments for the management fees. It's there to inform members of the management company of money due to the company yet to be collected. As such it forms an important part of the accounts.


----------



## picene

it was my understading that the Data Protection act only applied to data/files stored electronically.
So the if the Management Company stored the list of those who paid/had not paid in a ledge then they could publish?


----------



## bond-007

The Data Protection act applies to all data whether it be on a computer or in a relevant filing system.


----------



## shesells

Again I say the list of outstanding debtors forms an important part of the accounts and should be published therein.


----------

