# Apartment Management Cos.- who is responsible for managing terms of lease.



## mercman (18 Feb 2008)

I own an apartment where the new owner of the property above mine placed a wooden floor and two very noisy water pumps above mine, both of which made so much noise that my tenant left. For the first eight months the management co. did little to act on these matters, which were in direct breach of the terms of the lease. The MC were given a choice of becoming a joint plaintiff with me or a co defendant with the owner above. They chose to join me. Case went to Court, and I and the MC won. However the final settlement left me short on my unrecoverable costs and short on the loss of rent for 10 months, plus service charges. I thought one of the main purposes of the Management Co. was to ensure the terms of the lease were adhered to.  Anybody have any comments as I reckon I am out of pocket over €10k.


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## mf1 (19 Feb 2008)

"Anybody have any comments as I reckon I am out of pocket over €10k."

Property ownership brings responsibilities and costs - some/not all of which are recoverable from third parties. If you sought and got an order for compensation, you can pursue the defendant although they may prove difficult to collect from. 

"I thought one of the main purposes of the Management Co. was to ensure the terms of the lease were adhered to."

One of its functions. Every Management Company is only as good as its collective membership. A lot of apartment owners opt out of being involved in the Management Company in the hope that someone else will take up the reins. 

I call it the "shurely shomebody elshe should be doing shomething about thish" syndrome. 

mf


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## mercman (19 Feb 2008)

mf1 - points noted. Therefore, if the points you have made are placed into reality,there is little point for a lease at all.  It took eight months in this case for the MC to act and that was only after an EGM. Surely as a leaseholder, the rules are set. So what you are saying in your opinion, is that all leaseholders can go off and do what they like.


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## mf1 (19 Feb 2008)

When you rule the world.................everything will be done at your pace, s**t will never hit the fan and we will all live happily ever after. 

Like I said, property ownership brings responsibilities and liabilities. Sometimes things go wrong and sometimes its going to cost you money to fix them and sometimes you're not going to recover that from anyone. 

There is an element of risk in property dealings- you've found that out and in the future you may decide to avoid that risk by not investing in the property market. 

mf


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## mercman (19 Feb 2008)

My business is commercial property. One of the purposes of a Residential Management Company is to ensure that the terms of the lease are complied with. There are enough test cases in Irish Law to evidence this.  So what you are saying to protect one's rights should cost more that those that  cause the  breach in the first instance. I'd say you're good at what you do.


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## mf1 (19 Feb 2008)

Now , now, tcch, tcch. You're posting here long enough to know the rules and to know better than to make this personal. 

mf


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## mercman (19 Feb 2008)

_"When you rule the world.................everything will be done at your pace, s**t will never hit the fan and we will all live happily ever after.

you've found that out and in the future you may decide to avoid that risk by not investing in the property market." 

_You started the personality matter not me. I only asked a simple question as to who is responsible for invoking the terms of a lease.


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## Madangan (19 Feb 2008)

mercman said:


> mf1 - points noted. Therefore, if the points you have made are placed into reality,there is little point for a lease at all. It took eight months in this case for the MC to act and that was only after an EGM. Surely as a leaseholder, the rules are set. So what you are saying in your opinion, is that all leaseholders can go off and do what they like.


 

So you think because it took you 8 months to sort out the problem (which ultimately was sorted out because of the protection offered to you under the Lease ) then you would in fact have been better off or as well off without a Lease at all .i.e without any protection!!!! Hmm I wonder how long it would take you to sort out the problem if there was no lease at all?

IMHO very warped logic,Mercman


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## mercman (19 Feb 2008)

Yep point noted. But surely that is the whole purpose of the lease in the first instance, for which the MC have the ultimately responsible. The point I was making  is that  the entire was left  to me to issue the proceedings instead of the  MC. My property was not lettable whilst there was so much noise ahead.


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## shesells (20 Feb 2008)

Can I ask who the directors of the MC at the time were? Builder or company members? I think our MC is now better at trying to deal with issues and lease breaches since company members took over the directorships.

The problem is that they still have to operate through a management agent, on behalf of the management company and I know our management agent is very slow to take serious action even when directed to by the directors.

As for being out of pocket for service charges, as a landlord these are tax deductable and can be claimed retrospectively AFAIK. The rest of the money? If a court has decided that a settlement should be paid to you I'm not sure you can appeal the amount without risk (but I'm no legal expert). What did you sue for?

Incidentally - one of our management agent's methods of tackling certain (more minor) lease breaches was to impose a €50 fine on the the unit - not much use to you!!


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## mercman (20 Feb 2008)

Seashells - thanks for the post.This is a slightly unusual case where the development was built over 20 years ago. The apartment above mine was sold and that is were the problems started. The MC are made up of owners and the managing agent is very upto date. However the MC just sat back and watched this go on without doing anything. The messing cost the defendant over €100,000, but I am unable to see why I should have been at a loss.


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## Cityliving (20 Feb 2008)

MF1 - What was the point of you posting here? All you said was effectively - Ah well hard luck for you taking the risk of investing your money? Thats an absolutely bizarre response. I think the poster had every right to expect that the terms of the lease that was signed by all parties be respected without having to resort to action which leaves them out of pocket. 

By your logic if somebody robbed your home and you didnt get it all back that they took a risk in owning something and you cant expect the world to be fair.

Please dont dive for cover under the dont make it personal protection when you make pointless and unhelpfull comments. If you are goint to waste the original posters time you must expect to be called up on it.


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## mercman (20 Feb 2008)

Madangan - Just reading your post and am unable to understand how you determine this as warped logic. Tell me how would your attitude be if you could hear a constant tap tap from the floor above; or the TV above blasting out constant noise or the noise of very loud water pumps (something like a helicopter landing) at 3 or 4 in the morning when the water system refilled. And if this is what you reckon apartment living is about I suggest you try living in a normal unaffected apartment versus one that has a wooden floor placed over hollow core concrete slabs and 7db water pumps placed on top. 
Then if you find this OK, fair enough.


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## czechmate (21 Feb 2008)

mercman said:


> Yep point noted. But surely that is the whole purpose of the lease in the first instance, for which the MC have the ultimately responsible. The point I was making is that the entire was left to me to issue the proceedings instead of the MC. My property was not lettable whilst there was so much noise ahead.


 
Correct the MC should have issued proceedings for breach of lease. However, the old problem with apartment blocks raises its head again. I think the point is that as an owner you are part of the MC. Whether you realise it or not, you have appointed directors (some of the other owners) to run the MC on your behaf. These directors in turn have hired a managing agent.

If you felt nothing was being done on your behalf then either (i) the directors should be fired or (ii) the managing agent should be fired. The usual problem with the directors is that they are owners like yourself and give their time voluntarily. They are unlikely to want to give their own time and energy (for free) chasing something which only affects you. The managing agent is probably not paid enough, or too lazy, to bother getting into court proceedings. Unfortunately that means if you want things done, you are going to have to do them yourself. This is what you ended up doing. This is what happens with any house owner. Apartments are no different.


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## Madangan (21 Feb 2008)

mercman said:


> Madangan - Just reading your post and am unable to understand how you determine this as warped logic. Tell me how would your attitude be if you could hear a constant tap tap from the floor above; or the TV above blasting out constant noise or the noise of very loud water pumps (something like a helicopter landing) at 3 or 4 in the morning when the water system refilled. And if this is what you reckon apartment living is about I suggest you try living in a normal unaffected apartment versus one that has a wooden floor placed over hollow core concrete slabs and 7db water pumps placed on top.
> Then if you find this OK, fair enough.


 
Mercman,
You have misunderstood my post. I did not at any point suggest to you that that you should grin and bear the noise and in fact, for what its worth, I have huge sympathy with you and indeed anyone who finds himself in a similar situation. Noise pollution is a terrible problem and I was not in any way minimising or trivialising it. I fail to see how you could have interpreted my post as suggesting that.

What my post referred to(and all it referred to )was your comment that "there is little point in having a lease at all". My post took you up on that remark and suggested to you that you would/or at least may have been worse off if the lease had been silent as it might have taken you longer than the 8 months you referred to to sort out the problem indeed you may not have been able to sort out the problem at all. If there was no covenant in the lease about wooden floors for example what could you have done i.e on what basis could you have gone to court without a lease prohibiting this? After all I am not aware of there being a prohibition on wooden floors in the law generally unless thereis a prohibition contained in an actual lease as appears to have been the case with your lease.


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## mercman (22 Feb 2008)

Madangan, the latter part of your post of last evening summarised the situation correctly. Not only did I have the hasstle of dealing with the owner above, I also had the hasstle of persuading of trying to get the MC to join with me in the proceedings. Hindsight being the best thing in the world, only after the event , but I would have been better off suing the both of them and I would not of been out of pocket, Although I would have ended paying 1/14 of the  part the MC would have had to pay. (I own one of fourteen apartments). The Managing Agent was superb , but can only take instruction from the MC.

As a word of note to apartment owners that might face a similar problem in the future. If a term of the lease has been broken and the MC sit idly by and do nothing, then use the law to protect your rights. It is a simple issue that if a lease term has been broken and you are the effected party, no matter what the outcome of a vote, you are entitled to justice. And this is the law.


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## mercman (17 Jul 2011)

As a follow up to the original post, after near 18 months of trying to have an inspection in the apartment above mine, it was found that the Court Order had been ignored and basically the owner is in breach of the Court Order. But the MC simply refuse to take action against this owner, allowing for the case that the said person is four years without paying his fees.

Maddening to say the least.


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## onq (17 Jul 2011)

More and more in public life we see the irrelevancy of the courts system.

That's not knocking the judges or the officers of the Courts.

Some people just seem to laugh and the law.

And get away with it.

ONQ.


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## shesells (18 Jul 2011)

The MC should already be taking legal action against the owner for non payment of fees? 

If you are 1/14 of the MC, can you not raise the issue at an AGM? The MC is being negligent, the directors are surely leaving themselves open to action if they don't pursue the problem unit for fees and also for non-compliance with the terms of their lease.

Technically the MC could seek repossession of the property as an ultimate sanction depending on the wording of the lease and the articles of association of the MC. It's worth reading up on these.


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## mercman (18 Jul 2011)

Thank you shesells for your post. The MC now want to have sound tests in my apartment rather than working on the breach of the Court order of covering the floors and bathrooms and kitchen. There is a very clear term in the lease which states no weooden floors to be allowed. 

Your last point of repossession of the property is well noted, thanks,


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## shesells (18 Jul 2011)

I would be looking at sending a solictors letter to the directors of the MC for neglect of duty..might light a match under them! More money I know but they are supposed to be acting in the best interests of ALL owners and ensuring that lease conditions are complied with.


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## zenga (19 Jul 2011)

Just reading this

Every owner has an equal share in the management company so what you are requesting the management company to do is split itself in half and then have one half take the other half to court....doesnt make much sense.

Also noise issues can be very subjective. These can be caused by bad structural design, or someone being just a light sleeper. If you live in an apartment you have got to be prepared for noise. People cannot expect to have peace and quiet when they are living in such tight quarters with their neighbour.

However seeing as there was a change in the apartment above the management company should have acted swifter and insisted on an inspection and removal of wooden floors etc (if they contravene the lease that is!!) you really shouldnt have taken this to court...who did you think 
was going to pay your legal fee's??

This is just one of the many catch 22 situations the management company faces every day. 

Would the other 13 owners be happy to pay €700+ each (10k /14 owners) so that you could pay your solicitor to take a case to court that only affected your property??? I know I wouldnt.


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## mercman (19 Jul 2011)

Sorry Zenga but you have missed the point. It has been to Court in 2007. The MC won the case after a vote with all the owners and the defendant has rubbished the Court Order. Full costs went against the defendant. 

Its amazing the noise never bothered me prior to the wooden floor and power showers, and I have lived in an apartment before in Central London. The whole purpose of a lease document is to ensure that people conform.


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## zenga (19 Jul 2011)

mercman said:


> Sorry Zenga but you have missed the point. It has been to Court in 2007. The MC won the case after a vote with all the owners and the defendant has rubbished the Court Order. Full costs went against the defendant.
> 
> Its amazing the noise never bothered me prior to the wooden floor and power showers, and I have lived in an apartment before in Central London. The whole purpose of a lease document is to ensure that people conform.


 
Im just trying to provide some background inforamation as to why the management company would not like to take action in this instance. 

I understand you won the case, but the case was taken in your name by your solicitor at your cost. If full costs went against the defendant surely he/she should be liable for the costs and that is where your anger should be directed.

However when you state full costs...generally you never get full costs in a legal case such as this, you generally will get scale costs which will be 50% at best of the actual costs. Im afraid the management company have no real liability towards you for these legal costs...they really only testified on your behalf. Have you spoken with your solicitor regarding the costs and if there would be a possibility of imposing half the costs on the managment company??


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## mercman (20 Jul 2011)

zenga said:


> I understand you won the case, but the case was taken in your name by your solicitor at your cost.



No it was a joint case with self and the Management Co. I personally was full sure that this would happen again but in the hearing they resisted in forcing the wooden floor to be uplifted. The defendant simply refuses to  abide by the terms of the lease or in fact respect the other apartment owners.


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## zenga (20 Jul 2011)

You stated that the management company consented to being added to the case...was there no discussion of costs at this stage??!! I cant understand why you left it until after the case to decide who was going to pay the legal fees!!


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## mercman (20 Jul 2011)

In the main the defendant had to cough up as costs went against him. The same thing will happen again for sure, but next time I will not be as easy going. The courts do not like a situation where an Order has been ignored. Next time, when reapplied to the Courts, I will go for full costs.


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## zenga (20 Jul 2011)

well if you have applied for judgement, then you can then seek for a judgement mortage and then finally get the judgement applied to his property....all of this might get you €0. Be very careful about spending more money as you may be throwing good money after bad!


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## mercman (20 Jul 2011)

Thanks for the advice. I do not think the person concerned would wish to go down this route as in essence, he is a member of a very high profile family, and the entire happenings could damahe his family's reputation and business.


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## ontour (20 Jul 2011)

If the owner of the apartment has not paid fees and is not compliant with the lease, it is possible that the management company could remove the apartment from the block insurance policy.  As mortgages for apartments usually have clauses about insurance cover this may be a cause for concern to the bank if the property is mortgaged.

A route to forcing the sale of the apartment may be a better long term solution.


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## zenga (27 Jul 2011)

ontour said:


> If the owner of the apartment has not paid fees and is not compliant with the lease, it is possible that the management company could remove the apartment from the block insurance policy. As mortgages for apartments usually have clauses about insurance cover this may be a cause for concern to the bank if the property is mortgaged.
> 
> A route to forcing the sale of the apartment may be a better long term solution.


 
This is not possible in apartment living. The apartments will be covered by block insurance which covers the structure and does not cover the individual apartments contained within...therefore to remove insurance from one apartment would mean removing it from the entire block.

It would be possible if the developement contained houses, again however it is very easy for the owner to get around this by arranging their own private home insurance so it doesnt really work there either!


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## ontour (27 Jul 2011)

zenga said:


> This is not possible in apartment living. The apartments will be covered by block insurance which covers the structure and does not cover the individual apartments contained within...therefore to remove insurance from one apartment would mean removing it from the entire block.



You would not change the actual insurance policy, you would inform the delinquent member that their claim would not be paid by the management company.  For example if there was a leak in the block, the management company could claim against the insurance for the damage but not pay the delinquent member for damage to their apartment.  Possibly the monies relating to the claim for that apartment could be offset against outstanding fees.


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