Irish Times Property Clinic 27th day of May 2021.
Publishing Date; Thursday the 27th day of May 2021.
Q We own a 2 bedroom apartment on the middle floor of 3 floors. Recently we noticed mould and damp on an internal wall. We informed the Management agent and they sent an assessor. They completed the investigation and reported to us that it was an issue with the upstairs balcony causing water to get into the wall behind the render. They have repaired the outside so as to prevent water coming in but are refusing any responsibility to repair our interior wall which needs to be fixed. According to the lease, the balconies are owned and maintained by the OMC as are the external walls.
A. You are fortunate that the OMC (owners' management company) has received the common areas and has the funds to repair the defective work to mitigate further damage and inconvenience. It is unfortunate that the OMC was not in a position to revert to the contractor who installed the defective balcony to seek that they resolve the defect and ensure that it is fit for purpose without the burden of cost falling on the OMC. The OMC may seek to recover the costs from the contractor subject to the statute of limitations of the construction and or the common area transfer date.
As the water ingress emanated as a result of failure in the building fabric of the common areas of the OMC, being in possession of the common areas, it is required to repair damage including the remediation works in your property. It may be that the OMC does not have the funds to do this or the agent may have advised their client, the OMC, to do the works and they are instructed by the OMC not to.
Damages arising from defects are not insured perils in standard OMC insurance block policies and you will not be in a position to make a claim.
Considering the above it would be appropriate to send a registered letter to the OMC requesting that they reconsider their position and observe the covenants of the lease. Litigation would not be a logical pathway to pursue this matter as the cost to do so would be more than the cost to resolve the redecoration and will not be timely. If you believe the damages warrant litigation you may make an application to the Circuit Court by way of Section 24 of the Multi-Unit Developments Act 2011 to obtain a Court order to have the lease observed or simply litigate for damages if you proceed with the works and have ample records of costs. Whilst the issue can be emotive as it is your property the rational for your action should be; what is going to cost you the least amount of money and time.
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: 27/05/2021