Q We have a property in a rural area. Our neighbour has a number of trees standing on a small elevated slope that overlooks our property. These pines/scots pines are about 20-25 metres in height. During the storms in January one of the trees fell and is now being supported by another tree.
Both of these trees overlook our property and sway when the wind blows strongly, which is often (this property is located near the sea). They also overlook a public road between both properties which has electricity or telephone lines running beside it.
We fear these trees will fall and potentially cause damage to our property, not to mention potential loss of life. We have suggested (twice) to our neighbour that he might remove these trees but he laughed at the suggestion. We are unsure what our next step should be and would welcome your advice.
Would a county council assessment be worthwhile? The trees, if they fell, would hit the wires (I'm not sure if these are electricity or phone). We could send a solicitor's letter but that will clearly escalate matters. Any advice appreciated.
A The trees you describe present a potentially serious risk to you, which cannot be dismissed by your neighbour. He has a duty of care to you and the road users, irrespective of whether the location is or is not a workplace as defined under Health and Safety legislation. You should immediately write a note to him outlining your concerns and the potential risk to road users, to you and your property.
The note, if written in a friendly tone, may produce a more favourable response, but it should be factual and make reference to the two previous contacts. This creates a formal record of notification, which will be necessary if the situation becomes more serious.
Separately you should write to the utility responsible for the overhead wires and to the local authority and alert both to the potential risk of bringing down the wires and to people travelling on the public road. Precise details of the location should be given as the trees may not be readily identifiable from the road.
You should take photographs, at certain time intervals, especially after high winds, and note details of any further movement of the trees.
There is provision in the Land and Conveyancing Law Reform Act 2009 for a Works Order to deal with boundary-related problems arising from neighbouring properties, but due to the location and tree heights, and the need for competent tree surgeons, this may not be feasible for you. A consultation with your solicitor is advisable.
You should try to maintain a friendly dialogue with your neighbour and advise him, in his interests, of the liability implications and consequences of the trees falling across the road. It is advisable to let him know that you have notified the local authority and utility company. You are obliged to notify them because you would have a duty of care since you are aware of the risk.
Hopefully he will act when he understands the risk. The local authority and utility company will act responsibly but would be obliged to deal with your neighbour as the trees are on his property.
Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of the SCSI.
How can I stand down from our OMC’s board?
Q For my sins I am the chairman of an owners' management company. A number of owners have served on the committee over the years. We have prided ourselves on keeping up the appearance of the property, and have been active in dealing with any maintenance issues, either as they have arisen or on a planned basis. We have always endeavoured to keep our accounts up to date, and have a better-than-modest sinking fund available.
In recent times we commissioned an independent report to assess our planned future expenditure in order to help us decide on the calculation of an adequate management fee. We also had our fire alarm and protection systems evaluated with a view to rectifying any noncompliance that may have arisen since the block was completed. Twelve months ago we succeeded in convincing our fellow owners of the need to employ the services of a professional property-management company, as our agent to manage the day-to-day needs of the property, a huge improvement for us.
Our difficulty on the committee is that some of us would like to stand down now after our voluntary service, but there is no enthusiasm to replace us. Some owners served previously, some are too elderly to be involved, and most of the units are now owned as investment properties and are let out; their owners never really take any interest in the place.
Willing volunteers have now become unwilling. No one signed on for life, but it is starting to feel that way. A mass resignation from the board would cause a crisis as there is no one to replace us. I have in the past, only half in jest, suggested that the only way to get off the board is to sell up and move out, or die in office. What should I do?
Under the deeds we still need to have a properly constituted company and board in place to look after the interests of owners, but this arrangement depends on an adequate supply of engaged and interested individuals to make it work or it will die on its feet.
Is there some other scheme or arrangement that might be put in place to take over from an owners' management company that few have any interest in keeping going? Would this be expensive if adopted? Would it be necessary to close down our present company under any new scheme?
Any advice on how to extricate ourselves from this problem would be much appreciated, and I suspect would be of interest to others in a similar situation.
A It is acceptable for a reputable agent to undertake the day-to-day management of a development without regular involvement of a board. The property managing agent, however, will require instructions from a director as and when matters arise that necessitates direction from the owners’ management company (OMC). Many OMCs in the State would prefer to have the county councils take over the running of the estate for reasons including cost and personal time, but this is not possible.
You might consider standing as a director during a phasing-in basis of new blood to the board to ensure a smooth transition. It would be prudent to prepare for the coming AGM with ample information to be distributed to the members and allow for suitable time to discuss the merits of having the members rotate through the office of director.
If all the members were unanimous in the position that no one wanted to become a director and had no interest in the running of the estate, you might consider approaching an asset management fund or REIT with the aim of selling the entire development and properties included with a long-term lease option for those who wish to remain onsite.
If the figures added up it could work; you say many of the property owners are absent landlords as it is. I would caution that this option would forgo control of the development for those who remained onsite renting the properties. The culture of the development would shift from a home to a business operation.
It is possible to arrange for an individual who is not a member of the company to sit as a director provided the OMCs' articles of association permit it. You can expect to pay a considerable sum of money to such individuals for this service given the complexities and exposure they would be taking on. I draw your attention to the Company Law Handbook on Residential Property Owners' Management Companies as published by the ODCE. Section 21 of this document provides guidance on the issue.
Paul Huberman is a chartered surveyor and sits on the Property & Facilities Management professional group committee of the SCSI.
Send your queries to propertyquestions@irishtimes.com or to Property Clinic, The Irish Times, 24-28 Tara Street, Dublin 2.
This column is a readers’ service. Advice given is general and individual advice should always be sought
