Irish Times Property Clinic 27th of March 2014
Publishing Date; Thursday the 27th day of March 2014.
Q. On moving into a new build apartment costing €670,000 in the docklands in 2008, i have been besieged by odours and leaks. To date, issues have been dealt with the property developers and the management company, without having to involve third parties. However, one of the leaks continuously reoccurs, and I’ve now hit a brick wall as the property developers are now in receivership.
In short, this reoccurring leak is due to water ingress through the concrete ceiling in my master bedroom, which is also the roof terrace for the apartment above. The estate managers have investigated by making a large hole in the suspended ceiling in my master bedroom, which has been in place for about 6 months now and have submitted a report to the receivers outlining the work necessary. Despite reassurances from the Estate Management company, it will now not be fixed as the receivers, who, in addition to taking over ownership of the development, own the apartment overhead, are taking an action against the builders for all defects in the property.....in the meantime, I'm in my 7th year of a leaking ceiling, and a dehumidifier that’s working around the clock, what can I do? I’m at my wits end!
A. If the source of the leak is coming from a common area, the owner of the common area must remedy the leak. In accordance with Section 13 of the Multi-Unit Developments Act 2011 the owner of the common areas must be given reasonable notice and opportunity to fix the leak. The OMC may then repair the work and recover the costs from the owner of the common areas if they failed to do so. If the leak is coming from the apartment, you may direct your correspondence to the owner and request that they resolve the issue. Should the owner fail to resolve the leak you may wish to revert to a solicitor and take legal action. In many cases a fixed charged receiver has the duty to repair and maintain the property.
Section 103 of the Land and Conveyancing Law Reform Act 2009 places an obligation on the receiver to achieve the best possible price for the asset. If the above apartment has exclusive ownership of the balcony, it would be safe to conclude that the receiver would not want to sell the property without fixing the leak as to do so would logically receipt a smaller sum of money.
Under Section 145 of the National Asset Management Agency Act 2009 a statutory receiver is not obliged to sell the property so it is important to establish the terms of the appointment so as to strategise your plan.
Should the receiver be appointed under the NAMA ACT 2009 the receiver may not be instructed to sell the property but should no doubt be under instruction to let the property so as to generate a return. It would be in the receivers’ commercial interest to remedy the leak so as to avoid unnecessary hardship for affected parties like yourself.
The receiver must observe Section 3, Subsection 2 (b) of the Multi-Unit Developments Act 2011 and as such cannot sell the property until such time as the transfer of the common areas occur. You might bring to the receivers attention Section 3, Subsection 4 of the Multi-Unit Developments Act 2011 where the owner of the common areas shall do all things in their power to ensure that each property owner in the development shall have peaceful enjoyment of their property.
You may wish to review a copy of the pre-contract enquiry or the then Requisition 37 from your solicitor to see if these issues were reported and see if evidence of same existed when you closed on your property. If you choose to do this I would recommend that you seek representation from a solicitor that was not the same as the one who acted for you when you signed for the property. You may wish to also review a copy of your surveyors report. Time is not on your side; depending on when you closed in 2008 you may have drifted past the statute of limitations to take an action against a negligent party.
Depending on the legal action you take there may be litigation against the owner of the common areas or the owner of the property and any subsequent charge will affect the quality of title of the apartment or indeed the common areas. If there is action taken against the latter then the OMC will have a higher block insurance premium to reflect the history even if a claim against the block policy is not made.
It would be important to investigate further with the owners’ management company (OMC) to see if they intend to work with the receiver on addressing the defects should the legal action against the development company not yield any results.
Dealing with receivers is an art not a science. You want the receiver to fix the leak but often this is easier said than done. Given that you are looking for the leak to be fixed it may be quicker and more cost effective to arrange access to the receivers’ property and fix it yourself with their consent.
If you choose to go with this route, you need to establish the cause of the leak, it is likely to be water ingress as a result of one of the following: failure of the roofing membrane overlaid on the concrete deck; defective upstand detailing and possibly faulty or missing counter flashing; defective damp proof course to a patio door sill or lack of adequate sill detail; or a combination of all three.
Have an inspection carried out by a chartered building surveyor and/or a good roofing contractor. If the issue is the balcony’s water proof membrane, have it renewed or overlaid with a new membrane paying particular attention to the upstand and seal to the patio door sill. Check the sealant to the reveals of the patio door and renew as required. Check also the rainwater outlet to the balcony is clear and free of blockage.
Alternatively you could go the expensive legal route to exercise your rights and end up with the moral victory of no results and plenty of fees and still perhaps have a leak.
Paul Huberman is a member of the Property & Facilities Management Professional Group and Pat McGovern is a member of the building surveying professional group of the Society of Chartered Surveyors Ireland
Author: Paul Huberman of H&H Property Management Consultants Ltd
Publish Date: 27/03/2014