# Seller tried to use an 'old' req 37 for another unit to avoid OMC fee



## lantus (28 Jan 2014)

We have an odd ball situation where a member owns a number of units they are trying to sell. They sold one last year which completed OK and are currently trying to sell another one. 

We only found out about this new one from a third party and the seller just assured us that we would get a telephone call from the new owner to let us know. Obviously we explained that a solicitor would normally be involved and things like req. 36 and pre contract docs would typically always be completed which he claimed to know nothing about. (Never mind the obvious problems of getting calls from strangers claiming they are the new owners of a unit without any legal confirmation!!)

We have been contacted by the potential purchasers solicitor and they admitted that the seller has given them the req. 37 and mud act queries form for the *old unit* they sold last year as way to avoid them having to do it again. These forms contain financial information relating to the now sold unit which the seller no longer owns and we would imagine constitutes quite a severe data protection breach on their part.

In addition although they haven't changed the document in any way they are trying to essentially use a document we wrote for another unit to enable the legal sale of a totally different unit which could be essentially impersonating a director or fraud??

We are going to report this to the data commissioner and the owner of the unit but is there anything else we need to be aware of?


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## Bronte (28 Jan 2014)

Can you clarify what the document is for?  Does it matter if it's for a different unit if it clarifs the same information.


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## lantus (28 Jan 2014)

Bronte said:


> Can you clarify what the document is for? Does it matter if it's for a different unit if it clarifs the same information.


 
the document is the pre contract forms as part of the conveyance. A req.37 and MUD act pre contract form (which are basically very similar.) Some information is the same but much has changed. In particular it contains the financial information relating to the previous units arrears (if any). A third party now has access to this information.

As the questions relate to specific issues regarding how the OMC is run and its accounts and its financial status then obviously using old information and trying to pass it off as recent is in our opinion totally outrageous.


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## Brendan Burgess (28 Jan 2014)

Hi lantus

Given that this member of yours will continue to own properties in the development and that you will continue to have to work with him, I suggest you try to resolve it with him directly. 

Make it quite clear that what he did was incorrect, but I don't think that you should be making formal complaints to the Data Protection Commissioners. 

Is it even covered? Would the accounts of the company not be a public matter? 

It may be fraud if he is pretending that fees have been paid, which have not been paid.

Brendan


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## lantus (28 Jan 2014)

Brendan Burgess said:


> Hi lantus
> 
> Given that this member of yours will continue to own properties in the development and that you will continue to have to work with him, I suggest you try to resolve it with him directly.
> 
> ...


 
the key bit of information is that previous financial information relating to service fees was divulged. This would of been the sellers own information but once the unit sold it was no longer his. He then passed this information onto another person.

The fact is I don't know whether this would be a breach but it is not for me to determine. The data commissioner will answer that. Bear in mind that directors have a duty to report any potential breaches. If they didn't and then another person complained and it was found out you knew about it then it could be detrimental to you as a director. This is always about protecting yourself first and foremost. Any vengeful resident could see an opportunity to hurt you and your family over data protection issues.

Yes we have to work with these people but when they are being so obstinate its hard to be sympathetic. They denied even knowing about req 37 or what it was while at the same time they passed on an old one to make do. How about my feelings for being lied to my face? Good relations work both ways. You don't bend over backwards for practised liars making a profit at your expense, they will just stamp even harder on your face.


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## Padraigb (28 Jan 2014)

Let's say John Doe owned units 13 & 14. He obtained (and paid for) Req. 37 data on unit 13. The information relates to John Doe and to unit 13 at the time John Doe owned it. So what data does he compromise by revealing that information to the intending purchaser of unit 14? I really can't see a data protection issue here.

As Brendan has pointed out, the accounts of the OMC are a matter of public record anyway. I could access them for a trivially-small fee.


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## lantus (28 Jan 2014)

Padraigb said:


> Let's say John Doe owned units 13 & 14. He obtained (and paid for) Req. 37 data on unit 13. The information relates to John Doe and to unit 13 at the time John Doe owned it. So what data does he compromise by revealing that information to the intending purchaser of unit 14? I really can't see a data protection issue here.
> 
> As Brendan has pointed out, the accounts of the OMC are a matter of public record anyway. I could access them for a trivially-small fee.


 
nothing to do with accounts. This is disclosure of arrears amounts. Once a unit is sold then should that information be passed onto another member once you no longer have any right of ownership over the information. If it can be then that is a fairly large loophole in data protection for exposing what is typically considered confidential information.

If the company were to publically disclose that member X who no longer lives here had X amount of debt then is that also OK?

Or if I sell a house which had arrears on it and I am no longer the legal owner and then I passed on the financial arrears information regarding to that property at a later date to another party. Am I still the owner of that information and do I have a right to disclose it to others?


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## Padraigb (28 Jan 2014)

The only arrears that John Doe was in a position to reveal are the arrears for which he was responsible. John Doe (and only John Doe) has the right to disclose that information to anybody.


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## lantus (28 Jan 2014)

Padraigb said:


> The only arrears that John Doe was in a position to reveal are the arrears for which he was responsible. John Doe (and only John Doe) has the right to disclose that information to anybody.


 
So if I no longer legally own a unit I still legally own the financial information relating to it and can disclose that information to anyone else? Does make sense but still can't help feel like that the information should be attached to the current unit owner and not past owners. Your divulging information about another unit that you don't own. Does the fact you once owned it make a difference? I guess the question is whether legally you are the owner of the financial information past the point of legal ownership of the unit. What the data commission refer to as a data controller.


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## Brendan Burgess (28 Jan 2014)

lantus

The purpose of the Data Protection Act is to protect people's private data. 

It sounds as if the seller gave out information on himself and on no one else.  He gave it to one other person, the purchaser of another property from him.  

If he gave out the arrears information on someone else, they might be upset. 

I think that this is a red herring. 

If he was trying to defraud the buyer of the second property, that could be a serious offence with serious implications for the second buyer and for the OMC.  That is what you should be focusing on. Don't get distracted with technical, academic breaches of the Data Protection Act.


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## lantus (28 Jan 2014)

Brendan Burgess said:


> lantus
> 
> The purpose of the Data Protection Act is to protect people's private data.
> 
> ...


 
Just being thorough and I would agree with your assessment, lack of sleep recently isn't doing my sanity any favours it seems, also no desire to get distracted. While a few people have stated that the MUD act pre contract requisition is generic and they are right that one part is providing the most recent accounts that to be honest anyone could do there are in fact quite a few very specific questions. I would say at a quick run through that 14 of the 21 questions can only be answered by a company director and can 'potentially' vary or change in a short period.


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