Management Company Board Directors conflict of interest.

[em_cat]

Joe

Yes that would be preferable, because then we could go through normal proceedings of debt recovery, however at present the 2 Directors are resistant to such as that would make them liable for such in the future. It is strange, because a few years ago, the OMC had to fight the Directors to get them to pay their fees for their own units and that debt was disclosed under the heading Third Party transactions in our financial statements.

Unfortunately we have discovered that it is not just the Leisure Centre w/o a building contract binding them to the OMC. They are a LTD company that is a subsidiary of the Developers JV that developed and sold the residential units and are located in a building that is owned by the local authority, however it is unclear who actually owns the property where the leisure centre is located, I think it may be under dispute between the LA and the Dev. But here is the kicker, also included in that building are 5 privately owned residential units who have the same building contracts as the rest of us and the remaining residential units belong to the local authority for their housing stock. So it is rather messy at best.

The confusion lies at the fact that the 2 Directors are the same for each entity, the OMC, the Leisure Centre, The Developers and the Parent Company to all except for the OMC as we are not a subsidiary.

 

[lantus]

lantus, you raise some very good points about Data Protection and I will be honest, it is very surprising to me to how many OMC and Managing Agents who are unaware of such policies, especially as the managing agent would be considered a data controller.

On that, our most recent AGM was facilitated by our MA, who did not discreetly check in the attendees, but rather checked them in at a table which could be clearly overheard by others in the queue and by the reception staff in the place that we held the AGM. They issued voting cards, only to those who where up to date with their fees, printed with yes/no on either side, the green being yes and the red being no. Not only did this clearly identify the people who where late or did not pay, they also made sure to vocalise whether someone would be allowed to vote at the same time. Anyway, this will be delt with along with the odd accounting and possible conflict of interest.

I recently wrote to the data commissioner to clarify the issue of voting cards and they clearly saw it a breach of data protection and very serious if it was occurring. You would have a very good case to make a complaint if you wanted just on this point.

 

[lantus]

Just to clarify, I am pretty well aware that Developers usually are the Directors of the OMC to start with and generally pull out once all units are sold, but in our case they will always be 2 of the Directors because they have a fairly large financial interest in the development even when the last residential unit is sold.

The reason we are all aware that the Leisure Centre has never paid fees is because it has been orally disclosed to both our Residents Association Committee and at all of our AGM's also it is done in front of the Dev Director that is present at our AGM as well as being included in our minutes.

In relation to the Leisure Centre not being part of the OMC, our MA confirmed such in our committee meetings and they keep proposing different ways to deal with it and one has been to take monies from our sinking fund, which they have been very clearly made aware of the MUD Legislation that covers the sinking fund, but then again so has the DOJ.

For example, in our Report and Financial Statements that is handed out at every AGM, under the heading of Current Assets: Debtors, they include a total of €200,000.00, and at the AGM before anything is signed off/voted, a resident asks "why is that figure so high and getting higher each year?". The ma facilitator who is acting as Chair responds with a breakdown of figures attributable to residential owners who have not paid and then the stakeholder in question who has not paid. That is how we know. This is also why some of us are so confused.

That is shocking that individual names are being read out. If several of you made a complaint they would be hit by a huge fine or possibly worse.

 

[lantus]

Joe

Yes that would be preferable, because then we could go through normal proceedings of debt recovery, however at present the 2 Directors are resistant to such as that would make them liable for such in the future. It is strange, because a few years ago, the OMC had to fight the Directors to get them to pay their fees for their own units and that debt was disclosed under the heading Third Party transactions in our financial statements.

Unfortunately we have discovered that it is not just the Leisure Centre w/o a building contract binding them to the OMC. They are a LTD company that is a subsidiary of the Developers JV that developed and sold the residential units and are located in a building that is owned by the local authority, however it is unclear who actually owns the property where the leisure centre is located, I think it may be under dispute between the LA and the Dev. But here is the kicker, also included in that building are 5 privately owned residential units who have the same building contracts as the rest of us and the remaining residential units belong to the local authority for their housing stock. So it is rather messy at best.

The confusion lies at the fact that the 2 Directors are the same for each entity, the OMC, the Leisure Centre, The Developers and the Parent Company to all except for the OMC as we are not a subsidiary.

Just on one past issue. Why would you move inking funds monies to cover a debt? That just doesn't happen. Something very wrong with everything they are saying. Basically they are saying they have not paid but want to take money as compensation! IF, the directors of the company are doing this then it is theft if they are using the money on anything other than the common grounds or common buildings.

As for the building I don't understand how a 'block' can have separate contracts? Is there a common entrance or do each have their own entrance? How is block insurance paid for? Are these units apartments or houses? A commercial unit may have a variation of a lease on an apartment but both will have largely similar aspects in relation to the common buildings and this would be quite distinct from say a house which will only deal with the common grounds.

Options would seem to be: -

1/ present all your evidence to the ODCE and make a data protection complaint as well if you think it would benefit you.
2/ Get legal advice and take a case (more expensive.)
3/ Try to just oust the directors at an AGM, or propose increasing the number of directors and appoint an extra two giving the residents a majority. Get a resident appointed as chairman and secretary and take all accounts off them and money strings. They will be directors in title only but effectively powerless. In 2014 their 3 years will be up and they have to stand for re-election. You should make your own submissions via recorded post to the company office prior to the AGM and ensure they don't get re-elected.

 

[Joe_90]

I don't understand the data protection comm view that the members are not entitled to that information.

By implication he is saying that the directors and auditors can withhold information from the members who they represent.

Back to the OPs query I still think that you need to ask your legal team of the lease can be amended.

 

[jdwex]

You CANNOT show unpaid fees from a unit which identifies it. This is a data protection breach and if you pass this onto the commissioner they will take it seriously.

Isn't the Data Protection Act concerned with the privacy of individuals? I.e. if the unit is owned by a company it is not an issue?

 

[lantus]

I don't understand the data protection comm view that the members are not entitled to that information.

By implication he is saying that the directors and auditors can withhold information from the members who they represent.

Back to the OPs query I still think that you need to ask your legal team of the lease can be amended.

The OMC process is far from perfect but the law is what it is and the data commissioner has clarified this many times. The total debt can be disclosed as it must be to go into he company accounts but you cannot say that person X at unit X has not paid X years and their personal debt is X amount. Even indicating or disclosing that a person has not paid fee's to another member is a breach of privacy.

In terms of the comment re if a unit is owned by a company and not an individual I don't know how this changes things. If in any doubt get the data commissioners clarification and they are typically quick to respond.