Irish Times Property Clinic 17th day of September 2015.
Publishing Date; Thursday the 17th day of September 2015.
Q Recently our owner management company (OMC) dismantled a wall which had a slight crack without the consent of the residents of the apartment block. It said the wall was unsafe and posed a threat to human life and had to be removed.
It has now furnished us with a price for rebuilding the wall. My questions are: were they entitled to dismantle the wall without our prior consent and is it right that I and the other residents are being asked to cover the cost of rebuilding the wall?
A The subject of essential repair and good condition of common areas is covered in the standard construct of a lease agreement binding the OMC and its members. The section that traditionally outlines the OMC obligations to its members is the fifth schedule of the lease.
Within this schedule you can expect to find verification that the OMC has the obligation and thus the right to effect essential repairs, especially in the circumstances you mention in your question.
Once this risk is known to the OMC the issue of potential litigation which may result from damage or injury must be promptly mitigated as a standard duty of care and as a prerequisite of the insurance policy.
If the risk was not dealt with punctually, you and your fellow OMC members could be facing legal action for negligence in the event of injury or loss.
It would be helpful for all involved if a well presented explanation was included with the communication you received outlining the risk, the action taken, the OMC’s remit and the charge with a minimum of 21 days notice prior to the meeting where the members will vote on the budget.
Provided the development has existed to allow the passing of three years since the first transfer of ownership of a unit in the multi-unit development (MUD), a sinking fund would have been established to address this issue and others in the future.
It is not uncommon for an MUD to have maintenance of a nonrecurring nature and as such the availability of the finances in the sinking fund allow for the works to commence without the need to call a meeting and have the members adopt a budget with the new costs included. Personal injury claims relating to OMCs are a real threat to the cost of cover and to the property agents that serve OMCs whether they are liable or not.
Paul Huberman is a chartered property and facilities management surveyor and a member of the Society of Chartered Surveyors Ireland (SCSI)
Author: Paul Huberman of H&H Property Management Consultants Ltd
Publish Date: 09/07/2015