Q I am the owner-occupier of a small apartment in south Dublin. There are many problems with the management of the block (of less than 10 apartments and several commercial units). There are two restaurants downstairs, and the noise from one is constant (extractor, and also there is a smell of cooking); the owner is co-operating but the noise is still there. What is the responsibility of Dublin City Council in this case?
Secondly, unknown to us our Management Company A had some kind of arrangement with Management Company B to manage the building. Recently when the ESB told us they would disconnect the electricity we were told the company owed money to various companies. We got a new managing agent who paid certain bills but told us we will have to pay an extra €15,000 to get rid of Management Company B. One owner from our development, Ms X, was a director of Management Company A. Ms X, says she did not know what she was doing when she was made a director. We have not had an agm for a few years. We had not voted for them to be directors.
What is the responsibility of the directors in this case? Are they liable for the costs involved? And also we believe Management Company B was using our service charge for their benefit.
We don’t think the common areas have been transferred. The paving area around the building belongs to the building but is used by the two restaurants. The developer is abroad and has filed for bankruptcy; he has to sign over the common areas to the owners of our development. I would appreciate your advice on how to deal with this.
A The problem that you detail regarding the odour/noise nuisance from the retail units below is primarily a matter for the local authority. However, if the retail unit is also a part of the management company and its title is by way of long lease, it is likely that there are covenants in the lease regarding nuisance to other units and it may be possible to take a private action under breach of covenant.
Directors' responsibilities for owners' management companies are the same as they are for any limited company under the companies acts. Owners' management companies could be considered a particular type or class of company (although not currently recognised as such) as they are usually limited by guarantee with its membership and voting rights restricted to owners in the relevant multi-unit development that has its reversionary interest vested in that company. The Office of Director of Corporate Enforcement (odce.ie) has some very helpful literature on the role of the directors and the Company Law Handbook on Residential Property Owners' Management Companies is an excellent guide for any owners' management company.
In relation to the transfer of the reversionary interest or freehold of the common areas, you should check with the management company directors and its legal advisers. In the event that the common areas have not been conveyed, the owners’ management company must engage a competent solicitor to ensure that this is done as a matter of urgency given your remarks in relation to the developer.
Paul Mooney is a member of the property management professional group of the SCSI
Q We are considering making an offer on a four-bed house in Dublin. It needs some upgrading and is also oil heated. Typically, what is involved in converting a house from oil to gas heating, and would you have any idea of the costs involved?
A The first thing to establish is as to whether or not there is a gas supply in the area. Most parts of Dublin do have a gas supply; however, there are still a few isolated pockets throughout that do not yet have a gas supply and you will need to ascertain this is available in the area. You can do this by contacting Bord Gais (www.bordgais.ie).
You will need to decommission the old/existing oil-fired heating installation to include the boiler and the oil tank. In this respect, the boiler and oil tank should be drained down and any excess oil properly disposed of. Great care should be taken when doing this in order to avoid any spillages, as this can give rise to contaminating the ground which will not only affect the subject property but may also affect neighbouring properties. The boiler together with the oil tank should also be disposed off as appropriate.
You will then need to consider the position of a boiler. While most oil-fired boilers are located outside the house, it is generally more convenient to locate gas-fired boilers inside as they are quite small and can easily fit within a kitchen or utility cupboard. The cost of this work will be subject to a number of factors, however as an approximate guide we would expect costs in the order of €3,500 to €4,000.
While the above may be all that is required, some consideration may need to be given to the remainder of the installation and the way in which the heat is distributed (pipework and radiators). It is our experience with many of the older oil-fired installations, that much of the pipework will be the original gun barrel metal pipework which will be old and prone to a high risk of corrosion.
Furthermore, often the radiators are the old heavy-duty type and not particularly efficient in terms of heat output. Replacing the radiators and pipework at the same time would cost an additional sum in the order of €6,000/€7,000. Accordingly, it is very important that a full assessment be made of the entire installation prior to making a decision so that you can budget for a complete upgrade or replacement of the heating installation as necessary.
Val O’Brien is a chartered building surveyor
Q I am a member of the owners’ management company (OMC) for a small block of apartments built in 1994. We understand that the MUD act requires developers to transfer ownership of the common areas to the OMC. This was not done for our apartment block.We have looked into having this done now but the developer has long since ceased trading. The solicitors originally acting for the developer have also ceased trading. How do we go about having this common area transferred to the OMC? Our sinking fund while adequate would not be sufficient to cover any expensive legal action. I understand any sales in the future may require this to have taken place ?
A I would refer you to the title document of your property so that you may identify the developer and the solicitor acting on the developers behalf. Your mortgage provider or solicitor would have this if you do not. You may then revert to the Law Society and enquire who has taken over the files of the solicitor who acted for the developer. It will then be possible to locate the developers’ title documents pertaining to your residential development. I would also recommend investigating the status of the development company, noted in your title document, on the CRO website. It will be necessary to seek solicitors’ quotes to establish the outlay for this process so that the OMC members are adequately prepared for the cost.
All common areas of existing developments, where a unit has been sold, must be in the ownership of the OMC by the 1st day of October 2011 as per the Multi-Unit Developments Act 2011. The Act was written in such a way as to assume this would have been done without exception. The vendor of an apartment in a development without the common areas transferred might find themselves in the crack between two paves, the MUDs Act 2011 transfer guillotine date and today’s date. A willing vendor, purchaser and solicitor would argue that they are not in a bind. The Act is an instrument of Civil Law and as I have found has not provided for the active participation of developers to date as there are no repercussions for failing to do this. The only option to compel a developer to transfer the common areas is to seek a court order in the Circuit Court by way of a MUDs Act 2011 Section 24 application. Consequently, many residential developments do not yet have the common areas in their ownership as such an action is costly.
Where an apartment in your development is sold, say today, that new property owner is entitled to the rights, powers and entitlements as well as obligations of the existing members as per part 8 of the MUDs Act 2011.
Paul Huberman is a member of the property and facilities management professional group of the Society of Chartered Surveyors Ireland, scsi.ie
