PROPERTY CLINIC: QLarge, fast-growing trees from a neighbouring apartment complex are making my back garden darker every year. On one occasion, the management company replied to a query by saying the directors wouldn't be budgeting for cutting them back. All emails, calls and letters since have been ignored. What options are open to me? Presumably given the large number of apartment blocks in existence, this is a common issue.
AThis problem arises on a regular basis not only with properties bounding apartment complexes but between house owners and there is little difference between the two circumstances. Where branches or part of a tree extend into your property you have the right to trim those parts back on the condition that you offer such trimmings to the owner of the tree.
In many title documents for Owners Management Companies (OMCs) for apartment blocks there will be an obligation to maintain the estate (including the grounds) in “good order, substantial repair and condition” or similar wording. This does create an obligation on the management company that is somewhat greater than freehold houses, however it does not normally cover the height of trees and once the trees are healthy and do not create a risk to the apartment block or any adjoining property there is no obligation to reduce the height of the trees.
The most practical solution is probably a monetary one. If the shadowing caused by the trees is reducing the enjoyment of your property it is likely the adjacent apartment block would allow you reduce the height of the trees once you use an insured and competent contractor – or reimburse them the cost of engaging one. In such situations agreement is reached between the parties as to the division of the cost of a tree surgeon between the tree owner and those benefiting from the reduction in height of the trees. I suggest you contact other neighbours who may be experiencing the same problem and approach the management company offering to pay for the tree surgery or make a contribution towards it. Then look to agree the amount to be topped from the trees – and any maintenance in the future.
Paul Mooney is a member of the property and facilities management professional group of the Society of Chartered Surveyors Ireland
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Can we apply for an extension of our PP?
QIn 2008, we got planning permission for four detached houses on the site of our existing home – a 1960s bungalow on approximately one acre. Due to the property crash we never proceeded with the development/sale of site.
As the planning permission is due to expire after five years – in August 2013 – I am wondering if we can apply for an extension of the permission so that it doesn’t lapse if we don’t proceed with the development/sale by August next.
AAn application for an extension of the duration of the life of a planning permission can be made any time within the final year of a life of the permission (in this instance from August 2012). The application of course must be made prior to the expiry of the permission.
Until recently, an application for extension of planning permission could only be made on the grounds that substantial works were completed pursuant to the development. However, the Planning and Development (Amendment) Act 2010 has revised the provisions in relation to applying for extension of time for planning permissions. The new legislation now allows for an application for extension of duration to be made where there were commercial, economic or technical considerations, beyond the control of the applicant, which substantially militated against either the commencement of development or the carrying out of substantial works.
The legislation sets out a range of criteria that must be complied with for such an application to be granted. In particular, it must be demonstrated that there have been no significant changes in the relevant planning policy context, including the Development Plan, Local Area Plan, Regional Planning Guidelines and Guidelines issued by the Government, since the date of the permission such that the development would no longer be consistent with the proper planning and sustainable development of the area. Also, an application for extension of duration will not be granted where an Environmental Impact Statement or a Protected Habitat Impact Statement would now be required, or were required at the time, but were not carried out as part of the original application. It would be advisable to submit a report addressing these issues with the application for extension of duration. The application must also comply with other criteria set out in Section 42 of the Planning and Development Act 2000, as amended, and in the accompanying Regulations. A fee of €62 is payable to the Council in respect of such an application. It is likely that an extension for a further five years would be achievable in the type of circumstances you describe.
John Spain is a member of the planning and development professional group of the SCSI
Apartment co-owners won’t pay charges
QI live in a Victorian house which was converted into five apartments circa 25 years ago. There is an owners' management company which manages the property directly – on a shoestring.
The five apartments are owned by three people: myself; another owner- occupier who owns three units and rents two of them and another investor. We are all directors of the management company. I am the secretary and bookkeeper. I have kept up to date with filing accounts in the companies’ office, having annual meetings accounting for all spending and keeping other owners up to date on finances.
The investor with one apartment has not paid any charges in almost two years. And the owner of the three units has not paid his last two months’ charges.
In other words, it looks like I am the only one paying any charges now. Once I pay the insurance next month there will not be much left in the bank account. What are my options?
AYour two co-owners non-payment means that you are effectively and unfairly subsidising their portion of the day-to-day costs, which is untenable. You should make contact with each of them and simultaneously formally write to each seeking immediate payment. Perhaps the smaller debtor may agree a payment plan but that is less likely with the person who now owes two years' arrears.
In your communications, outline the critical financial position of your Owners Management Company (OMC), the risk of insolvency and warn them of the consequences of non-payment such as the building insurance lapsing, lighting /power failures, uncollected refuse, etc. Also point out that if they wish to sell their property at any time, now or in the future, an insolvent OMC will hinder any sale and their debt will have to be settled as a condition of the sale. If provided for in the head lease, you may charge interest to their account until the debt is settled.
Following this and unless they pay up, you have little option but to continue subsidising the OMC so that it does not run out of funds and/or apply the legal remedy for recovery as set out in your head lease.
You indicate that you run your OMC and operate it compliantly so I am assuming that the service charge budget for the debt owing was agreed at a general meeting in accordance with the Multi-Unit Developments (MUD) Act 2011. This is important as although service charges are a contract debt and fully recoverable, the legal process is very burdened with rules, and it is essential that all your documentation is in order.
The next step would be to pass the documentation and account indebtedness to your OMC’s solicitor, preferably one who specialises in debt collection. For a modest fee, a solicitor will issue a LBA (Letter Before Action) which sets out the debt due with a warning that unless payment is made within seven days legal proceedings will be initiated against the debtor.
Often the formality of this letter motivates payment, however, if not, then legal proceedings should be issued by your solicitor. Unfortunately the process is expensive and slow and it is not uncommon for cases to take more than 15 months to work their way through the legal system. In the meantime, you will need to protect the OMC and continually fund it. Once a judgment is granted, unless the debt is settled, you will then need to discuss the next steps with your solicitor and decide the most appropriate course of action, such as seeking an installment order or obtaining a judgment mortgage.
The MUD Act 2011 introduced many improved arrangements and consumer protections for apartment living but missed an opportunity to tighten and improve the service charge recovery system and further reform is urgently needed in this area. The establishment of a dedicated, fast-track court together with a workable and properly resourced enforcement mechanism where judgements are realised, perhaps by the direct attachment of rental income if appropriate, is long overdue.
In the meantime, you have limited effective options for dealing with your non-paying co- owners.
Siobhan O’Dwyer is chair of the property and facilities management professional group in the SCSI
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