Property Management Company - what are my rights / legal position?

O

oceanfrog

Guest
Like so many other people I'm having problems with my Management Agent (I'm aware of the distinction between management company and management agent btw). I've been doing a lot of research on this, and the whole thing seems like a big mess to me. I'm living in a development of 20 townhouses and 2 commercial units in Co. Kildare. Management fee is about €800 pa (there was about 25% increase for 2008).

I have a few questions you guys might know the answer to;

1. Are the management company/agents allowed to take over management of an "unfinished" development? All houses are completed, but there are unfinished portions of tarmac in the car park of the development and unpainted common areas (as well as a few other things left unfinished by the builder). If the management company/agents take over the unfinished development who is responsible for finishing all unfinished work?

2. What happens if the residents are NOT informed of any AGM (none of us have been to date and some people are living there since Summer 2006 ... I've been there since Christmas 2006)? We have also received NO annual accounts ... the only correspondence has been invoices for service charges.

3. Can we as residents collectively request that our local county council take over the estate if we are not happy with the "management company". Are they are legally obliged to take it over if we request.



I dont want this thread to turn into a pro v con management company debate please. I just want to find out as much info as possible before we the residents (aka the "management company" !!!) get our asses organised and kick the management agents to the kerb.
 
3. Can we as residents collectively request that our local county council take over the estate if we are not happy with the "management company". Are they are legally obliged to take it over if we request.
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Cant answer 1 & 2, but Councils generally will not take over unfinished estates. It is a condition of planning that the developer finishes in accordance with the planning permission. If it is the case that the development has not been finished to the required standard, the appropriate place to complain is the planning enforcement office. Councils generally refuse (or should according to planning law) future planning permissions to developers who have not finished previous developments.
 
oceanfrog said:
1. Are the management company/agents allowed to take over management of an "unfinished" development? All houses are completed, but there are unfinished portions of tarmac in the car park of the development and unpainted common areas (as well as a few other things left unfinished by the builder). If the management company/agents take over the unfinished development who is responsible for finishing all unfinished work?
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Our management company and agent were operating before out place was completely finished so I presume that it is possible. In our case the development was completed in stages with road surfaces, common area landscaping done by the developer before they left. I don't think that this is uncommon. If I recall correctly there may also have been a problem with some of the sewerage/drainage infrastructure which may have been put right by the local authority and which was funded from whatever bonds the developer had to lodge in advance in relation to the development.
2. What happens if the residents are NOT informed of any AGM (none of us have been to date and some people are living there since Summer 2006 ... I've been there since Christmas 2006)? We have also received NO annual accounts ... the only correspondence has been invoices for service charges.
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You can check if the company is in breach of company law easily enough. If they are then it's up to you as to how you want to deal with it. But obviously if you take an adversarial approach to dealing with your management company then you may be cutting off your nose to spite your face.
3. Can we as residents collectively request that our local county council take over the estate if we are not happy with the "management company". Are they are legally obliged to take it over if we request.
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You can request it but I very much doubt that the LA can do anything even if they wanted to - at least as long as the management company remains the legal guardian (not sure of the correct term) of the development. As far as I know the LA can only take the development in charge (in part or full) with the agreement of the management company. The residents on their own have no authority in this respect.
 
OP, you’ve set off on the right foot in so far as you say you have done a lot of research. Follow Clubman’s advice and read the info on the website as suggested. Next, read your lease in order to understand the specific terms and conditions. You will receive an endless stream of advice from ‘informed sources’ but the advice will be of little use if it does not specifically apply to your lease and your estate. You will also receive advice which involves the High Court and the expense involved with such action. Ignore it.

With regard to the AGM, there are specific Company Law requirements that must be met by a Company in relation to holding an AGM. You will find the answers on the Director of Corporate Enforcement website, a very good source of company legislation. I have found from personal experience that informing parties of their short comings in relation to Company Law and the consequences of same, tends to illicit a quicker and positive response. Again, information on this is contained on the ODCE website.

Regarding the taking in charge of an estate by the council, don’t count on it. Your Management Company has been established because there are ‘common areas’ and (one would suspect) leasehold units. Your local county council will not be interested in taking these in charge. As a result, there will always be a requirement for a management company to ‘safeguard’ the assets of the company, i.e. the common areas. There is legislation which requires the county council to take an estate in charge within 7 years from the end of the life span of the planning under which the estates were built. However, this does not cover estates controlled by a Management Company.

Now, in relation to the first question you have raised, this is where the specifics of your lease come in to play. You will possibly find that
- the developer has voting control of the management company by way of an excessive number of votes
- the developer still owns the ‘common areas’ and these have not been signed over to the Management Company
- the agent has been appointed by the developer and is carrying out his instructions

All this and more needs to be ascertained.

It sounds like it is indeed a mess. In order to sort it out, you need to arm yourself with as much information as possible and be prepared to harass everyone involved – Developer, Directors, Agents. The whole issue of Management Companies is a minefield but there is plenty of useful information out there to assist you. Just make sure you get it from trust worthy sources (such as consumerconnect and the ODCE) and refrain from relying too much on ‘pub talk’. Don’t be put off by threats from the Management Agents, there is very little they can or will do. You do absolutely need to sort this out as it may well affect your ability to sell your home, if the need should arise.

Quote "But obviously if you take an adversarial approach to dealing with your management company then you may be cutting off your nose to spite your face."
I'm sorry but this is the type of advice I was referring to and quite frankly you would be better off to ignore it. The poster is referring to the scenario whereby the company may be struck off for not complying with company legislation but that is extreme and has nothing to do with taking an 'adversarial approach'. Such an approach, directed at the company's officers, is quite likely to get a positive result. In that regard, it might be useful to know that a Management Agent can, under Company legislation and under certain circumstances, be deemed an officer of the Company and therefore liable to the same penalties as the normal officers. I found it useful to point this out to our agent. This information is on the ODCE website, if I remember correctly.
 
As this issue seems to come up a lot, I have pasted below an excerpt from an advice letter I issued to a committee man on a residents association last year - they have a managed estate and were wondering if they would be better getting it taken in charge. This relates to the roads and services in an estate; There is no equivalent provision for the common areas of actual buildings, so this info is not of relevance to apartment dwellers.

NOTE: I started posting this before Avantarklu's post and would just add a point of clarification to that post: the existence of a management company is not a bar to getting an estate taken in charge, though some local authorities certainly seem to believe otherwise. The law is, however, fairly clear and in fairness to Dick Roche, who was never high on my list of ministerial greats, he laid out the position with succinctness and clarity.

********************************************************
I have set out below some information which may be of interest to you in the context of deciding (with your fellow residents) whether you in fact want to have a management company. The first item is a comment made by Dick Roche in the Dail in February 2006 (when he was Minister for the Environment). Below this I have set out the relevant legislation to which Mr. Roche was referring.

Dick Roche in the Dail in February 2006:

“My Department issued a circular letter on 25 January 2006 reminding local authorities of their obligations under section 180 of the Planning and Development Act 2000 to begin the procedures to take in charge the public services of housing estates once these are completed to a satisfactory standard, where they are requested to do so by the developer or a majority of the residents of the housing development. The circular letter also clearly stated that the existence of a management company to maintain elements of common buildings, carry out landscaping, etc., must not impact upon the decision by the authority to take in charge roads and related infrastructure where a request to do so is made.”

The relevant section of the Planning Act reads as follows:

180.—(1) Where a development for which permission is granted under section 34 or under Part IV of the Act of 1963 includes the construction of 2 or more houses and the provision of new roads, open spaces, car parks, sewers, watermains or drains, and the development has been completed to the satisfaction of the planning authority in accordance with the permission and any conditions to which the permission is subject, the authority shall, where requested by the person carrying out the development, or, subject to subsection (3), by the majority of the qualified electors who are owners or occupiers of the houses involved, as soon as may be, initiate the procedures under section 11 of the Roads Act, 1993.

(2)
(a) Notwithstanding subsection (1), where the development has not been completed to the satisfaction of the planning authority and enforcement proceedings have not been commenced by the planning authority within seven years beginning on the expiration, as respects the permission authorising the development, of the appropriate period, within the meaning of section 40 or the period as extended under section 42, as the case may be, the authority shall, where requested by the majority of qualified electors who own or occupy the houses in question, comply with section 11 of the Roads Act, 1993, except that subsection (1)(b)(ii) of that section shall be disregarded.

(b) In complying with paragraph (a), the authority may apply any security given under section 34(4)(g) for the satisfactory completion of the development in question.

(3)

(a) The planning authority may hold a plebiscite to ascertain the wishes of the qualified electors.

(b) The Minister may make or apply any regulations prescribing the procedure to be followed by the planning authority in ascertaining the wishes of the qualified electors.

(4) Where an order is made under section 11(1) of the Roads Act, 1993, in compliance with this section, the planning authority shall, in addition to the provisions of that section, take in charge any open spaces, car parks, sewers, watermains, or drains within the attendant grounds of the development.

(5) Where a planning authority acts in compliance with this section, references in section 11 of the Roads Act, 1993, to a road authority shall be deemed to include references to a planning authority.

(6) In this section, ‘‘qualified electors’’ means every person who, in relation to the area of the dwelling houses in question, is registered as a local government elector in the register of local government electors for the time being in force.



I hope the foregoing information is in some way useful to you. Basically, what this means is that in the long run, if the residents of an estate want it taken in charge, they can insist upon this and the local authority must bow to their wishes.

In the meantime, while the estate is not yet in charge, the situation is a whole lot more complex. If the Management Company is not being run in a way which suits you and the other home owners, you may well need to enter into dialogue with the builder about this.
 
avantarklu said:
Quote "But obviously if you take an adversarial approach to dealing with your management company then you may be cutting off your nose to spite your face."
I'm sorry but this is the type of advice I was referring to and quite frankly you would be better off to ignore it.
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Please re-read my comments. :rolleyes:
 
Property Management Company / Agent Forum?

[FONT=&quot]Would it be possible to get a forum set up for management companies / agents?[/FONT]
[FONT=&quot]People are posting on this topic in various forums - Buying and Selling, AskaboutLaw, Homes and Gardens. The consumerconnect forum is inadequate:[/FONT]

[FONT=&quot]http://www.consumerconnect.ie/eng/H..._Management_Forum/Have_your_say_feedback.html[/FONT]
  • [FONT=&quot]disjointed as there is no method for replying to individual posts. [/FONT]
  • [FONT=&quot]posts are selected by emailing haveyoursay@consumerconnect.ie[/FONT]
  • [FONT=&quot]no practical information and advice - just a list of experiences of management companies that aren’t working[/FONT]
[FONT=&quot]Here are some of the topics that could be covered in this new forum:[/FONT]
  • [FONT=&quot]Management companies[/FONT]
[FONT=&quot]o[FONT=&quot]What are the responsibilities of a management company? Who decides this? [/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Memorandum and Articles of Association[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Where to find information (only realising now that there’s a more comprehensive document on consumerconnect.ie, in addition to the simple consumer booklet )[/FONT][/FONT]
  • [FONT=&quot]Agents[/FONT]
[FONT=&quot]o[FONT=&quot]Steps to changing an agent (time frame etc.)[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Listing of agents[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Dealing with inadequate agents
[/FONT][/FONT]
  • [FONT=&quot]Directors[/FONT]
[FONT=&quot]o[FONT=&quot]Removing developer directors[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Assigning resident directors and implications [/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Directors maintaining a share of dwellings[/FONT][/FONT]
  • [FONT=&quot]Fees [/FONT]
[FONT=&quot]o[FONT=&quot]Agreeing proposed budget with agent[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Getting directors to approve it (this doesn’t have to occur at AGM as we found out)[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Ensuring agent carries out approved work within budget and doesn’t just carry out work on a first-come first-served request by residents.[/FONT][/FONT]
  • [FONT=&quot]Getting council to take in charge estate[/FONT]
[FONT=&quot]o[FONT=&quot]Who to contact in the council?[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Full vs. Partial – what can they take over?[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Houses only[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Mixed developments - Houses /Apartments [/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Rural vs. Urban (e.g. Dublin City Council cut grass but Meath Co Co won’t. Res. assoc. must continue to collect fees for this. In one unmanaged estate some residents were claiming that because they didn’t live in front of the green they shouldn’t pay and there was a stand-off)[/FONT][/FONT]
[FONT=&quot]o[/FONT][FONT=&quot]Should developer pass common areas to management company or directly to the council?[/FONT]
[FONT=&quot]o[FONT=&quot]Disbanding the management company[/FONT][/FONT] -[FONT=&quot]houses only and mixed estates of apts / houses
[/FONT]
  • [FONT=&quot]Misc[/FONT]
[FONT=&quot]o[FONT=&quot]AGM[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]EGM[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Voting rights[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]How to change Memorandum and Articles of Association[/FONT][/FONT]
  • [FONT=&quot]Management companies that are struck off[/FONT]
  • [FONT=&quot]Non-paying residents[/FONT]
[FONT=&quot]o[FONT=&quot]Name and shame (web site / leaflet drop)[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Legal action (implications if changing agent)[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Obtaining list of paid residents from agent[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Should res. assoc monitor houses for sale to ensure agent collects payment prior to sale [/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Developer not paying fee for his share [/FONT][/FONT]
  • [FONT=&quot]Buying a house in a managed estate [/FONT]
[FONT=&quot]o[FONT=&quot]What to check [/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Tips[/FONT][/FONT]
  • [FONT=&quot]Changes in legislation[/FONT]
  • [FONT=&quot]Multi-phase estates with multiple developers/builders and management companies[/FONT]
[FONT=&quot]o[FONT=&quot]Two management companies in the same estate[/FONT][/FONT]
[FONT=&quot]o[FONT=&quot]Does next phase of houses / apts get their own management company? i.e. Are our 2 existing management companies closed or do we accept more houses? Does this affect us changing agent?[/FONT][/FONT]
  • [FONT=&quot]Experiences[/FONT]
Does anyone else think this topic warrants a forum?
 
AKA said:

[FONT="][URL="http://www.consumerconnect.ie/eng/Hot_Topics/Campaigns/Property_Management_Forum/Have_your_say_feedback.html"]http://www.consumerconnect.ie/eng/Ho..._feedback.html
Click to expand...
[/FONT][/URL]
  • [FONT="]disjointed as there is no method for replying to individual posts. [/FONT]
  • [FONT="]posts are selected by emailing haveyoursay@consumerconnect.ie[/FONT]
  • [FONT="]no practical information and advice - just a list of experiences of management companies that aren’t working[/FONT]
Click to expand...

To be fair to the NCA, it is probably the only website run by a government body which has such a forum at all.

On Askaboutmoney the moderators get constant abuse for deleting rubbish, offensive and defamatory posts. We are accused of having all sorts of vested interests for trying to maintain standards. I could just imagine the abuse that the NCA would get if it attempted to moderate posts after they were posted.

Brendan
 
Re: Property Management Company / Agent Forum?

ClubMan said:
What about ?
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In theory yes, but in practice this site does not provide the info in an easily searchable form, and some developments have sites with no visitors.

I too would be in favour of creating a special forum/sub forum for property management issues.
 
Re: Property Management Company / Agent Forum?

shesells said:
In theory yes, but in practice this site does not provide the info in an easily searchable form
Click to expand...
Google can do site specific searches - see my signature (if you can't see it then enable this option in your profile (User CP top left of page))
and some developments have sites with no visitors.
Click to expand...
Who says that residents of those developments visit AAM?
I too would be in favour of creating a special forum/sub forum for property management issues.
Click to expand...
Maybe post in the "suggestions" forum so?
 
Re: Property Management Company / Agent Forum?

ClubMan said:
Maybe post in the "suggestions" forum so?
Click to expand...

Will do. Thanks for the feedback. Yes, NCA site is not really a forum as such. Don't know how widely neighbours.ie is used.
 
  • [FONT=&quot]Management companies[/FONT]
[FONT=&quot]o[FONT=&quot]What are the responsibilities of a management company? Who decides this?

First question. Are you a member of the management Company?check your deed of title/ purchase contract to find out.

There is no legislation regulating Management Companys. The role and activities of a management Company are set out in the Companys Memorandum of Association and Articles of Association.You can get a copy of this fairly handy if you are a member of the management Company.The developer is ultimately the one who sets up a management Company so it would have been the developer who decides whats in the memorandum.

Genrally the responsibilties of the company will be to maintain the Common areas and collect service charges. Being a Company it must also comply with Company law and maintain proper books and records , file its annual return, get audited if not audit exempt, etc. etc.

There seems to be a general confusion on how a management Company works.The ODCE explains there are 3 stages to a management Company:

The developer stage:
The developer sets up the management Company and is the sole member.

The owner/ purchaser stage
The developer sells a unit of the development.Now the membership of the company consists of the developer and the purchaser.

The owners only phase
The developer hands the common area over to the Management Company once all units have been sold. The management Company then consists solely of all the purcahsers

A common misconception is that once a management Company is set up, the Management Company automatically has ownership of the Common area and its obligations start immediately.THIS IS NOT THE CASE.

The managemnt Company only has ownerhip of the common areas when the developer transfers it to the Company.Prior to this transfer, the developer holds the common areas on trust for the Purchasers.

Who then has an obligation to maintain these common areas before the developer has transferred the common area to the company. Well that depends.

It may be that the obligation rests with the developer, or with the management company, or the obligations may be held jointly with the developer and the management company. Check your purchase agreements?Ask your solicitors to explain, if they havent already what exactly you signed up for when you bought your apartment.

So ask yourself these questions.
Are you a member of the management Company or is your lanlord a member.
What phase is the development at?
Does the developer still hold ownership over the common areas?
Are you paying your service charges to the management Company or the Developer directly.
Does the developer still have obligations toward the manintenance of the common area or does the obligations solely rest with the management company.
[/FONT][/FONT]
 
Hi Deeds,

Did you cut and paste this from somewhere else? If so please supply an attribution and a link.

Thanks
aj
 
ODCE? = Office of the Director of Corporate Enforcement (ODCE)

Some related links:

[broken link removed] Report by Report by: Evelyn Hanlon, Private Housing Unit, Housing and Residential Services, Dublin City Council.
[broken link removed] The Irish Property and Facility Management Association (IPFMA)
http://newsweaver.ie/williamfry/e_article000717058.cfm (William Fry,: Pressure Mounts on Property Management Companies) Report by William Fry solrs, ..Pressure is mounting on property management companies with the recent publication by the Office of the Director of Corporate Enforcement (ODCE) of a consultation paper on property management companies and publication today (19 December) of a Law Reform Commission consultation paper on multi-unit developments.

[broken link removed]
 
Thanks for sharing the information. It helped a lot in managing my company.
 
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