Can a developer build on common land?

Q I live in a small apartment complex built in 2008 where the common areas have not yet been transferred to the owners' management company (OMC). The management company requested the transfer a while ago but it seems there is always a delay of some sort resulting in the conveyancing still not done after all this time.

Six months ago the developer applied for planning permission to build large houses on adjacent land and build ancillary parts for the houses on the apartment’s common areas, all without any agreement from the OMC.

The council did not consider the ownership of the common areas at all and the matter is now in appeal with An Bord Pleanála.

If An Bord Pleanála also disregards this argument, wouldn’t such a decision provide a green light to developers to delay conveyancing so as to retain the common areas for their own ends? Is there anything an OMC can do to prevent a developer from building on areas they actually do not own?

A Your lease agreement binding you to your owners’ management company (OMC) would traditionally have a provision within it that says that during the construction of the development the developer may alter or vary the development as they see fit provided they have planning permission.

The Multi-Unit Developments Act 2011 (MUD Act 2011) Section 5 was written so as to require that the common areas would be in the ownership of all existing OMCs from the first day of October 2011 where a unit in the development was sold.

This legislation places the onus on the developer to have the common areas transferred to an owners’ management company. As the legislation is civil law and not criminal law, there is no consequence for breaching same and has rarely been observed thus far. The process is onerous and costly for the developer and the OMC also requires legal representation that is independent of the developer to oversee the transfer. Section 5 (2) of the MUD Act 2011 has certain required qualifications so I will assume that your existing development is substantially complete and more than 80 per cent of the units have been sold.

It would seem that a suitable option, should the appeal with An Bord Pleanála fail, is for the OMC to immediately retain legal representation and apply to the Circuit Court under Section 24 of the MUD Act 2011. The OMC would seek the granting of a court order to compel the developer to transfer the common areas. If the developer fails to transfer the common areas following a Circuit Court order they are then in breach of a court order thus falling under criminal law.

Following a successful transfer of the common areas to your OMC it may then protect itself from the development on its land under Irish Tort law. The action of the developer should it begin construction on your land may well constitute private nuisance and the OMC would therefore require legal representation to seek a Quia timet injunction where damage to your land has not yet occurred but is imminent. Paul Huberman is a chartered property and facilities management surveyor and a member of the SCSI

Spot light on safety

QMy wife and I recently purchased a bungalow in Cork. It seems that the previous owners had installed a number of spotlights into the ceilings of every room in the house. Recently I was investigating the loft and I discovered that sections of the loft insulation had been removed, in my opinion, in order to facilitate the insertion of the spotlights.

I am concerned that if I try and put the insulation back over the lights that I could cause a fire. Is this the case and if so what should I do instead?

A The areas around spotlights installed into ceilings are commonly left uninsulated due to the heat generated by the spotlights potentially igniting the rockwool insulation. In leaving the area void of insulation this can cause extensive heat loss through the ceiling which can lead to blackspots forming around the spotlights due to condensation.

It is recommended that you install down light covers on top of each spotlight in the roof void. These downlight covers should be tested to BS EN 60598-1: 2015 Luminaires: General requirements.

These covers will prevent heat transferring to the surrounding insulation but also provide an air space around the down light so that the lights heat build-up can be safely dispersed into the roof void. By installing these covers you will then be able to install the insulation up to and around these covers and prevent any heat loss. Kevin Hollingsworth is a chartered building surveyor and a member of the Society of Chartered Surveyors Ireland, scsi.ie

Hedge minding

QSince 2003, I share a hedge with a neighbouring site, which is 0.6 hectares and which has been subject to multiple unsuccessful planning applications. The developers who own the site have changed over time and do not live on the site. I have never met or spoken to the owners.

Since I moved to this location in 2003, I have maintained the hedge. In order to do so, because of height and width, I needed to cut the hedge from both sides. I have been able to access the other side through a gap in the hedge and have cut both sides of the hedge uninterrupted several times a year since 2003. The owners of the site have never carried out any work on the hedge.

There is a new planning application in for the site, consisting of some 20-25 units. If the application is successful and the site is developed I may have one or multiple owners on the other side and may not be able to access the other side to continue to maintain the hedge. Can you advise if I have any right to continue to access the other side so as to continue to maintain the hedge?

A You are right to be concerned about sharing this 50m hedge with several neighbours who will likely have varying views about its growth, etc.

The Land Conveyancing and Law Reform Act 2009, Sections 43-47, provides for a mechanism to obtain a works order to access adjoining properties, if necessary, for boundary maintenance purposes if permission is refused by the respective landowners.

The Act provides for a wide interpretation of boundary related situations. It may not be feasible however, or practical in the circumstances you describe, in particular when dealing with several properties.

A claim for adverse possession or easement over the space occupied by the hedge or used in its maintenance outside your boundary, because you have exclusively used/maintained it for 12 years, would be a complex process. Legal advice is recommended. An alternative approach is based on the location of your legal boundary line which is likely to run within, or close to what is a very wide hedge.

You should determine it by obtaining your deed map, which should have dimensions. If the line on which the hedge was originally planted, (tree trunks/stems), is on your side of the legal boundary then the hedge is entirely your property.

If it’s planted on or outside the legal boundary, the situation becomes complex. You may then need to discuss boundary proposals with the developers. They may require a more secure physical boundary on their development perimeter and may be open to suggestions.

If the hedge is within your legal boundary you should consider substantially reducing its width but ensure that there is a permanent fence such as a strong post and wire fence defining the legal boundary. This may facilitate ease of maintenance.

If it is a leylandii hedge consider getting rid of it, and replace it with a more manageable species which could be maintained to a 0.5m width within the existing hedge width with space between it and the fence for trimming.

This is initially a costly option but may be worth considering in view of pending developments and for ease of long term maintenance. Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of the Society of Chartered Surveyors Ireland, scsi.ie