Irish Times Property Clinic 25th day of September 2014
Publishing Date; Thursday the 25th day of September 2014.
QThe directors of my owners’ management committee have made a number of transgressions, the most serious of which include the termination of our management agent’s contract, failing to provide proper notice prior to an AGM and amending the memorandum and articles of the OMC to include paragraphs relating to their remunerations and expenses.
I have reported the directors to numerous authorities. However, I felt that my complaints fell on deaf ears. I am considering reporting them to the PSRA next.
Is this a good idea? I am anxious to see that the directors do not get away with what they have done. Is there anything else I should do next?
A. The PSRA has jurisdiction over licensed property service providers only. An individual providing a property service to a third party must be licensed. If the PSRA is aware of individual(s) providing a property service without a licence, they can only instruct the individual(s) to cease doing so.
You say that remuneration was paid to the directors and, as such, they would require a licence to provide a property service. If they do not hold a licence, the contract is void and the monies should be recoverable. I would bring your attention to theultra viresrule in seeking damages from the directors in their activity.
You may wish to apply to the court with regard to Section 8 of the Companies Act 1963 and seek to have the monies recovered. This process will require a solicitor to guide you. I would recommend that before you appoint a solicitor they should provide you with references and client testimonials to prove their ability. I also note in your question that the directors provided you with only 10 days’ notice prior to the general meeting. Section 17(3) of the MUD Act 2011 requires that at least 21 days notice must be given to the members to hold a general meeting each year.
In the past, the movement was made by OMCs to take as much control away from the management agent as possible. With the new licensing and the available compensation fund as provided by the PSRA, I anticipate that OMCs will migrate back to granting more control over the OMC to the management agent. The office of director is a very complex position to hold and one should only consider it after fully informing oneself of the responsibilities. An agent can only do so much for a company, ultimately the directors of the OMC are responsible for the OMC.
Paul Huberman is a chartered surveyor and member of the SCSI’s Property and Facilities Professional Group
Author: Paul Huberman of H&H Property Management Consultants Ltd
Publish Date: 25/11/2014