Just wondering if someone in the legal profession could offer their advice.
We have bought a site and as part of the contract paid the Mgmnt Co to install services to enable us obtain planning permission. We also have a way leave on the land. Some of the services are installed (and were so before we purchased) however no further work has been done. The developer (director of Mgmnt Co) does not seem interested in completing the work on the services.
As fully paid up members of the Mgmnt Co and with the benefit of a way leave would we be entitled to repair existing service procured by Mgmnt Co and install new services?
Or do the exisiting services belong to the Mgmnt Co?
Would we need planning to install further services?
Your rights under the wayleave/easement are set out in the transfer of the property to you and would normally include the right to repair the services on land retained by the Vendor but may not include the right to install new services on that land.
The Management Company would have the right to both repair services and install new services, if the common areas are owned by Mgmt Co. They may in fact still be owned by the developer or the development company. If the Management Company owns the common areas then it owns the services on that land also. As members of the management company you should have meetings and normally, such decisions are made by the votes of all the members. I am not clear as to whether or not you are considering dealing with this by yourself or together with other members of the management company. If, for example, there were ten other members, you would probably not be entitled to unilaterally install services in the common areas without the consent of the other members.
You need to speak to the solicitors who acted for you in the purchase. They will be able to find out if the common areas are transferred to the management company or not.
If not:
- When you purchased, the developer should have given an indemnity in relation to the roads and services. This means that if they have not yet transferred the common areas to the management company, the developer is responsible for any expense that you incur in repairing the services in the meantime. You would have to sue them on foot of this indemnity to recover your expenses, or at least threaten to… - Only the developer would probably then have a right to install services. This depends on the terms of your wayleave.
You should be able to sue under the terms of your contract to either force the developer to complete the work, or to pay you the cost of having it done yourself.
If you were to install further services, you would almost certainly need planning, but until you have clarified the above, dealing with that would be premature.
This is just general advice. Please get advice from the solicitor who acted for you in relation to this before spending anything/digging anything up!
Thanks Mallow for your detailed reply - I don't know how I missed it. We are dealing with the solicitor who handled the purchase of the site but it is quite complicated. We are currently looking into issuing proceedings against the developer/mgmnt co - the original owner/developer is dir. of the mgmgnt co. I'm not sure who owns the common land - most probably the developer. The other members of the mgmnt co. aren't interested in getting involved in resolving this issue but do want to see the services installed and repaired. Nobody is interested in "taking on" the developer but as it stands we have nothing to lose.