Irish Times Property Clinic 7th day of May 2015.
Publishing Date; Thursday the 7th day of May 2015.
Q My wife and I bought a house in a private development about three years ago. The building company went bust and the houses were sold at a very big discount. A management company runs the development but it is still in the hands of the receiver. We want to convert the attic into a gamesroom/den for our children and have had a quote from a builder to do this. Part of the quote is for two Velux windows on the roof at the back of the house to let in light. We do not want a dormer or box extension. These windows would go flush with the roof.
We took it upon ourselves to write to the management company to see if this was okay before proceeding. The builder had advised us that as long as planning permission was not required, getting permission was often a formality.
However, the management company said we signed a lease prohibiting changes to the outside of the building. We thought this meant the front or back (eg extensions), but didn’t think it meant the roof which is not visible from ground level, the same way an extension would be.
To complicate matters, the management company informed us that it did not own the buildings or common areas but only collected service charges. They referred us to the receiver whom we contacted and who referred us back to the management company.
I am confused and hope you could give some advice on these issues:
1. How valid is the management company lease we signed if they do not own the buildings or common areas? Can they enforce something they don’t have the right to?
2. If I don’t require planning permission, can a management company lease usurp this?
3. Any advice on the best way to resolve this?
A 1. The owners’ management company (OMC) can enforce the lease binding it to the property owners when the legal and beneficial interests stand merged. This will be from when the common areas or reversionary interest of the OMC are transferred from the development company to the OMC; the receiver now assumes responsibility to do this and should have done so already. As the common areas have not been transferred to the OMC, the consent would need to be obtained from the receiver subject to certain qualifying factors.
As you have sought consent from the OMC, I suspect your house has a shared roof with other OMC members and as such, any material alterations would be an issue, not least to the fire certificate granted and the block insurance policy.
The roof is part of the common areas, where relevant, as prescribed in the Multi-Unit Developments Act, 2011 (MUDs Act), section 1 (a): “the external walls, foundations and roofs and internal load bearing walls”.
It is plausible to have a detached house in an OMC development and that roof structure may not form part of the common areas subject to the definitions contained in your corresponding lease.
It is rare for an OMC to have the financial resources to correctly assign the roof to your title if your property is detached. It would be incorrect to assign the roof to one member’s title if the roof was a shared structure enjoyed by other units; examples are roof gardens or roofs of terraced houses in an OMC.
2. You would be unable to sell your property if you proceeded to make alterations without consent, and you could face legal action and costs to rectify the works you undertook as well as assume a concoction of other liabilities.
3. It is possible to transfer a part of common area to one property title under section 10 (B) of the MUDs Act 2011.The costs to ensure that the interests of the OMC are appropriately represented could be significant as qualified third parties should be involved to observe that is done correctly.
Paul Huberman is a member of the Society of Chartered Surveyors Ireland (SCSI) Property and Facilities Management Professional Group
Author: Paul Huberman of H&H Property Management Consultants Ltd
Publish Date: 27/11/2014