Obligations of Mgt Company to perform remedial / repair work

[Luternau]

A survey was performed by the Mgt company (at their cost) which confirmed the existence of one or more deficiencies which impact negatively on my property. However, over one year later, no action has been taken by them to resolve the issues. I dont know how to move this along without incurring substantial expense in Engineers reports and legal fees.
I am now considering advising the Directors that I am with-holding part payment of service charges that deals with sinking fund and ongoing maintenencd works until the issues are addressed and resolved.
I know my lease obliges me to pay all charges in full, and I will expose myself to demands for payment for not doing so. When owners don't pay service charges, management companies have no hesitation in seeking payment through final demand letters up to judgement mortgages plus costs.
What final avenues are open to me to have the issue addressed before I go the non Payment route ?

 

[ontour]

What did the management company do after discovering the deficiencies? Are they pursuing the builder or an insurance claim? When you have requested updates on the action they are taking what has been their response?

Is the remedial work significant / expensive? Are the management company accounts in a healthy state?

 

[onq]

The normal route would be to first of all determine the management structure of the estate management.

• Is it directly by a committee of the Members?
• Is the original contractor/developer holding a lot of units?
• Is there a third party management company which charges you fees?
• If the latter are they giving value for money in terms of their own fees and discharging their duties?

Depending on the answers

(i) you can call a meeting of the management company and take a vote on acting now, or
(ii) alternatively take a vote on instructing the third party management company to act.
​

However other factors may affect your course of action

- Despite their terms of reference however, lack of funds may prevent them acting.
- The severity and extent of the defects may be such that the original contractor and or certifying architect may be involved
- The management company may also have to consider the liability that may attach if they attempt to carry out repairs themselves which should be pursued with said builder and architect.
​

It may not be as simple as you appear to make out.
Determining the best course of action should be your first port of call.

I think you may not be not looking at "final" avenues here Luternau, but at "initial" strategies.


ONQ.

All advice on AAM is remote from the situation and cannot be relied upon as a defence or support - in and of itself - should legal action be taken.
Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

 

[Luternau]

What did the management company do after discovering the deficiencies? Are they pursuing the builder or an insurance claim? When you have requested updates on the action they are taking what has been their response?

Is the remedial work significant / expensive? Are the management company accounts in a healthy state?

Thanks for your reply. The report was given to the Directors (who were developer apointed). Nothing was done and I received no further correspondence. Obviously they did not pursue the builder as that was themselves.

The work would involve replacing a large window unit and also tracing the source of water penetration from the facade of the building and redecorating.

The company accounts are not that healthy, but the company is solvent.

 

[Luternau]

The normal route would be to first of all determine the management structure of the estate management.

• Is it directly by a committee of the Members?
• Is the original contractor/developer holding a lot of units?
• Is there a third party management company which charges you fees?
• If the latter are they giving value for money in terms of their own fees and discharging their duties?

Depending on the answers

(i) you can call a meeting of the management company and take a vote on acting now, or
(ii) alternatively take a vote on instructing the third party management company to act.
​

However other factors may affect your course of action

- Despite their terms of reference however, lack of funds may prevent them acting.
- The severity and extent of the defects may be such that the original contractor and or certifying architect may be involved
- The management company may also have to consider the liability that may attach if they attempt to carry out repairs themselves which should be pursued with said builder and architect.
​

It may not be as simple as you appear to make out.
Determining the best course of action should be your first port of call.
I think you may not be not looking at "final" avenues here Luternau, but at "initial" strategies.

Thanks for your reply. You may recall visiting my apt-you were gob smacked with what you saw. ( being careful what I say as this is a public forum and detailing my problem could remove the anomonity of posting here)

In relation to your q's
-the development is resident controlled, not vested yet
-a receiver holds the assets of the developer
- there is a Mgt Agent and they are managing issues as best can be given the developer left so much hanging-common area snags etc.

I would not see calling a meeting and requesting action etc as being relevant - it's not an issue for the majority, so I doubt they would be interested.

The developer:contractor is hopelessy bust. Whether the architect has liability is a interesting angle. In the boom, lots of development performed without superising architect to reduce cost, and probably increase construction speed. As such, I believe my development was signed off on substantial compliance. However, the developer has not handed over any drawings and it looks like there could be reason for this- the development may not be built as per architects drawings/specification.
With the developer off the horizon, there can be no issue of liability issues if a contractor is engaged. Does you know what the liabilities: obligations of the receiver where deficiencies in materials:workmanship are present?
What are the historic success rates of making a claim against the architects PI cover?
In any event, given that the source if the problems is related to the exterior-should the issue not be pursued relentlessly by the Directors of the Mgt Compny?

 

[onq]

Hi Luternau

You posted

"A survey was performed by the Mgt company (at their cost) which confirmed the existence of one or more deficiencies which impact negatively on my property"

The trouble may be that many of the items may be snag items, not matters you could parley into "Major Items" or "Items of Building Regulation Non-Compliance".
Taking these to court might founder on the "De Minimis" rule - "the Law does not concern itself with trifles" and perhaps more legally minded people could comment on this.

There is also the fact that not all remedies are deemed appropriate by the courts - the remedial work may be required to be proportionate to the level of defect observed and a financial remedy may be invoked.
For example, if there was a minor but generic deficiency in insulation, it is unlikely that the court would act to force the developer or builder to replace all the insulation in all the apartments. If there was a significant increase in heating costs there might be a financial figure arrived at and ordered paid to the affected owners, who could then take the money and offset it against future bills or use it to upgrade their apartment in some manner.
However unless full costs were awarded, you could see a significant erosion of the financial settlement award, and if the developer and builder are both in difficulty, you would be chasing straw men to no good purpose.

In relation to the architect, the standard cert usually specifically excludes issues like "...snag items that would in the opinion of the architect not give rise to enforcement action by the local authority...", and, in addition, the cert is offered "...in the matter of titles and consents and may not be taken as a report on the condition of the building..." or words to that effect.
I'm not certain on how to proceed on foot of such a cert, but you might have to show that the design drawings were defective in the details and insulation they specified and these are difficult to get from either architect, developer or contractor without a court order.

If you consider that the architect was grossly negligent you could refer the matter to the RIAI, the governing body which is now on a statutory footing.
They may end up saying what I have sad above, and then you might be back to looking at a potentially significant outlay just to get sight of documents on which to build your case.

That may not be what you want to hear, but the truth is that since self-certification there seems to be only two routes apart from chasing the developer/contractor-

(i) the local authority building control officer decides the matter is serious enough to take a case or
(ii) you take a case yourself.
​

In the former, most local authorities are too strapped for cash to proceed and you seem to think this matter would not concern people beyond yourself so they might not proceed anyway.
In the latter you simply may not have enough information to pin down any of the parties, which unfortunately seems to be the position.

The statute of limitations applies generally and there may be time limits within which either cases can be brought within specific legislation.


ONQ.

All advice on AAM is remote from the situation and cannot be relied upon as a defence or support - in and of itself - should legal action be taken.
Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

 

[Luternau]

Again, thank you.
It seems there are more cul de sacs than avenues. This is all very disapointing. It seems more rights affix when buying a kettle than property. If so, it's a truly damning inditment of regulators, government and Law makers.
Does anyone know;
1. Is this matter not rightly for the Mgt Co to pursue, rather than a company member?
2. If documents to base a case are with-held, and the subsequent delay arising from this, invokes (?) the statute of limitations, does the law not offer an extension to allow for the delaying tactics? You cannot take action about what you cannot get full facts.
3. Architects can sign off on buildings and include a disclaimer designed to minimise their liability and then refuse to hand over documentation that might show they were negligent? Seems wrong to me. In this case there seems to be strong evidence to indicate materials supplied/fitted do not conform to the building regulations. However, technical information is not forthcoming from dev/receiver. Therefore one cannot be sure. Again, seems unfair. Law supports Goliath, not David. Surely not equitable access to justice?
4. What liability/obligations has the receiver to perform works? Remember this is work that may fall under the responsibility of the company he is acting for. Can he just ignore or avoid responsibility?

 

[onq]

Hi Luternau

You're very welcome and I only wish I had more useful comments to make in this case.

I cannot comment competently on all those questions but I'll note that most busy offices tend not to return calls unless its new work, seldom indeed for what they might understand as snagging items being dealt with by the contractor over time. Nowadays it'll be fear of claims that will prevent them returning calls.

If there doesn't appear to be a significant number of concerns from different occupants they may view this as a once-off snag. If there actually are no defects in multiple units then it IS a once off snag item and its probably not going to be dealt with by the management company, but I have only limited experience with same - most of it not very re-assuring. I have been called to inspect on a couple of occasions, and following my comments the matter was raised. Usually the management company didn't take action, citing the expense or other prioritized work and in no case was the developer or contractor pursued - usually they had kept units in the development and as you pointed out, it would be like going after themselves.

In relation to the statute of limitations and statutory time limits within which action can be taken, its seldom seen that anyone will self-incriminate - you might need to be going in armed with a court order. I don't think we have the "5th Amendment" here and in fact I think a court can infer from an accused silence in certain cases, but you have to take legal action first.

You therefore need to seek discovery to prove your case beyond doubt.
Even then I have heard of cases where the defendants colluded while under oath and withheld evidence not by denial but by simply not producing it - "incomplete discovery"!

Even if the law will purse it, if its not a "trifle" and it is generic and widespread it comes down to what remedies are available set against the legal costs.
This is not an isolated finding - a client of mine has just seen what seemed like a cast-iron case dwindle away to almost nothing.
This was due to a judge taking a particular view and because it had gone on so long and had run up huge legal costs.

As I say, I only wish there were better advice I could offer. Perhaps someone else on AAM can shed more light on this.


ONQ.

All advice on AAM is remote from the situation and cannot be relied upon as a defence or support - in and of itself - should legal action be taken.
Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

 

[Luternau]

Thanks ONQ-I do appreciate the info you are providing me.
There are others with similar problems to mine-some more so, some less so. It's more than just isolated. Again for the substantial and possible non compliance issue affecting me, it also applies to other units, but the impact is not the same due to lower exposure and positioning (not facing prevailing wind or more sheltered aspect). The developer refused to hand over the technical details on this feature. If they complied - why not hand them over? You should not have to litigate to get the detail on a property-these are essential documetation. Their non provision should be treated as a health and safety violation, with appropriate consequences for the non disclosure. You have a right to know what insulation was used, where the services are, what fixings were used, what the service life of sealants are and of course evidence of material and technical compliance with all regulations, for all items covered by same. My property was practically broken from day one, (now 4yrs) and what will it be like in say another 10 years due to corner cutting and profiteering? I believe I can file a motion to initiate proceedings that will stop the clock ticking on the statute-however, it's all about access to info, and being able to pursue an entity that is not going to fold placing me bottom of a very long que for cash.

Unfortunately, the law is an ass when deciding property (construction) related matters. I fear it's very rare for purchasers to get a result in court, that actually puts them back to where they should be, or adequately compensates them for not being where they should be. The fact that a structural guarantee company (which had almost monopoly status) offered a guarantee that was not regulated, and had so many get outs that it could be argue that the only thing it guarantees is that it won't adequately guarantee anything is probably enough evidence in itself to show that the constuction secure enjoyed an exemption from regulation, supervision and liability for the quality of their work, for a substantial minimum period (given the expected life of a building). As it is, they have little or none, or if they do, they can just wind up a SPV as terminate warranties. Simples!!!
IMO a law needs to be enacted to afford purchaser similar rights and remedies to those they would have under Sale of Goods, Supply of Services-preferably without having to go the legal route, which just cannot adjudicate on these matters quickly, or cost effectively.

 

[onq]

There is a wider situation to look at here Luternau.

We have experience in assessing and carrying out remedial works to dwellings and commercial buildings, including apartments, but where anything meaningful gets done there is usually a willing developer involved.
I do not mean he is a philanthropist, but that he understands the concerns and the threat of legal action and is therefore willing to work with the appointed building professionals to achieve compliance/remedy the defect.

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Unless a degree of investigation has occurred already IMO you may be wasting your time taking legal action because unless the defect is well defined and the remedial works clearly laid out, with a start date, end date and programme, even a judge cannot order the contractor to carry out something "vague".
Any order sought from a Court must be precise, because the nature of the law is to make an order for a specific action or works, not merely to "have a look and remedy whatever defects you find".
I have seen four cases be dismissed from a Circuit Court because the order didn't give enough particulars including start and end dates, programme details and specific works to be carried out.

Many courts are simply not equipped in terms of their experience or technical knowledge to assess such matters, so there are usually two routes.

1. Engage with the Building Control Officer who has powers to inspect and issue BUilding Defects Sheets to which your design team responds proposing detailed remedies for agreement - these can be used as the basis for seeking agreement with the developer/contractor or moving forward to court if this isn't possible.

2. Seek an order yourself on foot of legal action taken buy you following a detailed inspection and report - the difficulty here is that where the building is in sale, it isn't yours to inspect yet, or in your case when its part of a developmetn you need permission to carry out opening up works.
​

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An alternative route which I have seen prove effective is to move matters to Arbitration.
Investigations can then occur leading to reports and sworn statements by competent professionals.
Normally Arbitration is invoked by the arbitration clause in a contract which is a fail safe where a dispute cannot be resolved.

The arbitrator can also be invoked and agreed in a dispute with significant technical issue arise - like this one.
Both sides may have to agree in principle to bear the arbitrators cost and this is not a "trifle" - it can be serious money.

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As for health and safety, this does not cover the home environment - they are the "Safety, Health and Welfare AT WORK regulations".
Therefore I don't know that this legislation applies unless you're suggesting that the defect renders the place unsafe to work in.

Again, documentation is referred to in the context of providing information for a safe place of work, clothing, training etc.
The Health and Safety legislation isn't as cover-all a body of law as one might think from the short name.

As for the guarantee companies, I cannot defend their position and it can be a maze.


ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon as a defence or support - in and of itself - should legal action be taken.
Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

 

[ontour]

Write to the directors requesting an update on their resolution of the issue that was identified. Highlight your concern that it is resolved as a matter of urgency as winter approaches. It is best to ascertain whether any activities have been happening behind the scenes or any conclusion was reached before pursuing other costly actions.

 

[Luternau]

Thanks ontour.

ONQ-what I meant about health & safety was not based on current legislation. I meant that essential info re services, materials, installations, guarantees, etc should form as much a part of the conveyance as title documents. This information is crucial to the owner being able to perform maintenance work and upgrades to services etc. It's omission should be regarded as a breach of a health and safety code related expressly to conveyance. As such, the conveyance cannot happen until the missing data is provided. Supply of the guarantees, certifications etc expressly make the developer the primary party responsible/liable for the accuracy and performance of same.
If such a system of control at conveyance stage was in place we may not have had our boom, may not have had our bust and we certainly would have quality homes, designed and built to the intended standards.

 

[onq]

Hi Luternau,

The documentation you refer to is something I might include in my certs for a once off house or if I was undertaking remedial work in an estate.
Its possible that the management company already has access to this information since as you say it would be material to maintaining and repairing the development.
Its standard enough for the developer to be furnished with or to assemble this kind of as-built information, and house-owners or apartment dwellings can request it at time of purchase.
Its more normal to be handed over as a matter of course in terms of commercial lettings or sales.

As regards your comments about the boom, nope, can't see it being a factor one way or the other.
People went crazy at the start of it buying new apartments even before they were completed.
Afterward they bought off the plans, so there was no possibility of them being inspected.
The boom and bust would not have been regulated by the provision of this information.

Collusion between estate agents and negligent unprofessional bankers did it.
Prime time did an exposé on it at the height of the boom.
People who shouldn't have got loans got them.
Loan amounts that were too high were lent.

But that's already in another thread.


ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon as a defence or support - in and of itself - should legal action be taken.
Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

 

[Luternau]

ONQ quotes in bold italics

Its possible that the management company already has access to this information since as you say it would be material to maintaining and repairing the development.

Today was vesting day for possibly 100's of developements. Going forward no apts can be sold without the commeon areas being bvested but its too late for many developements. In our case we have not got the plans, safety files etc, and are not likely to get them soon. MUD provides a remedy-go to the circuit court and get an order for vesting etc. However, it does not state what the penaties are for not vesting or not providing the files and drawings. If all this had to be produced at conveyance it would certainly have impacted on the boom. That Developers knew the regulations and controls allowed them to develop without adequate supervison or fear of not being able to convey finished property (despite having a contract to sell) it would have stopped a lot of the speculation, greed and corner cutting on materials and specification.

Its standard enough for the developer to be furnished with or to assemble this kind of as-built information, and house-owners or apartment dwellings can request it at time of purchase.

In apt complexes its not that automatic that you will get this essential information. You cerainly could not hold up the conveyance if you did not get it. Routine and Emergency rmaintence demands its availability to owner and to Mgt Co's, but if you dont have it you have very little avenues open to you to get it. Even with MUD.

People went crazy at the start of it buying new apartments even before they were completed. Afterward they bought off the plans, so there was no possibility of them being inspected.

Buying off plan or finished would not have made any difference if the controls were in place pre-conveyance to ensure buyer were getting what they contracted to buy and until this was proven, the sale would not go through. As stated earlier, if there was a check and audit of the quality pre conveyance we may not have had so many people trying to make a quick 100million, or if it did not stop that, it would certainly have addressed the quality issues.
Oh, and the lack of regulation allowed one company offer a guarantee that has more cracks in it than the homes with the Pyrite problems. If media reports are to believed-this company had been getting away with under guaranteeing new builds for years. this should not have been allowed. Alas. now that its all crumbling away. who picks up the pieces-only the purchaser. And when you go looking for the data-you cannot get it. Hamester in a cage stuff.
So based on all the above-its quite feasable that we may not be as bad as we are now if the building standard controls were there. Many developments would not be built and therefore the money would not have been borrowed.