On 21 March 2013, following the passing of Special Resolutions at a Special Meeting held for Occupiers, a new company limited by guarantee was incorporated. Having taken legal advice, the Garden Committee felt that incorporation into a company limited by guarantee would be in the best interests of the residents and key-holders (fobholders) of Eccleston Square garden for several reasons.
Firstly, incorporation would modernise the legal structure under which the garden is managed. The Directors of the new Company are governed by, and subject to, the regulatory provisions of the Companies Act. This provides many statutory safeguards for residents.
Secondly, incorporation would also provide the opportunity to confirm the legal rights of usage of the garden for many residents whose freehold or leasehold documentation does not reflect this entitlement. Unfortunately, over a period of years, poor conveyancing of the transfer documents has (in some instances) not provided for legal access rights to the gardens attaching to a property, which has led to a number of discrepancies (which have now been rectified).
Finally, it was felt that a corporate entity would be the best vehicle to protect against personal liability of the Garden Committee (and possibly residents too) in an age of increasing litigation. Under past arrangements, members of the Garden Committee (who were unpaid volunteers) were at risk of unlimited financial liability in relation to any successful claims for damages made in connection with the management of the garden. The new arrangements will remove a serious disincentive to board membership by limiting the liability of all individual company members to £1 each.