Property Clinic

Q In July 2009, I bought an additional car space in a multi-unit development from the developer. It now transpires this space, among others, was handed over to the owners' management company effective from 2006 as part of the common-area transfer obligation, but it was not registered to the management company until 2010. My solicitor, as a result, could not have been aware of this potential double ownership.

I believe the developer had no right to sell the car space in 2009, and is it possible a fault attaches to the developer's solicitor who handled the sale? I have raised a complaint with the Law Society but it won't handle the matter unless it is done through a solicitor.

Have you any advice please?

A When a developer transfers the ‘common areas’ of a multi-unit development to the owners’ management company they are usually transferring the entire freehold with the benefit of the long leases granted to each apartment owner.

The title for each apartment is created only when it is sold for the first time and registered. Car-parking spaces can be treated in different ways in order to grant an exclusive right to park and can often be by way of licence agreement or lease.

In a development where car spaces are designated to owners and they have a specific and exclusive right to park in a particular space, it is unusual that the owners’ management company obtains the benefit of any spaces as part of the transfer, unless such spaces were identified as visitor spaces in planning permissions or other documentation. However, it is not unusual in circumstances where there are surplus spaces with little demand for them. A developer may transfer them with the freehold rather than create separate title for them possibly attracting a service-charge liability.

In your situation, it may be that there was a genuine mistake in the original transfer from the developer and that the inclusion of the car space was not intentional and that its beneficial ownership should have been reserved by the developer.

Presumably you have enjoyed the use of the space since 2009 and that the question over title has only just arisen. I would recommend that you engage a solicitor and liaise with the solicitor for the owners’ management company to resolve the matter, examining the title in both transfers before pursuing the matter further.

Paul Mooney is a chartered surveyor and member of the Property & Facilities Management Group of the SCSI

Q I have just joined the owners' management company as a director and am shocked to find that there are some people who haven't paid service charges for two years. When I checked there had only been one invoice issued but no reminder letters etc.

What is the best way of resolving this and what happens if they still won’t pay?

A The lease agreement binding the owners’ management company (OMC) and its members will, in almost every case, express that the service charges are due in full on the first day of the financial year.

In the current economic environment, logic must prevail and allow for a reasonable compromise – one such compromise is to allow members to pay by instalments. You must set out clear and reasonable rules in advance of the financial year that are fair to the members and practical to the OMC in its ability to recover its due monies.

Ensure that a payment plan does not contradict the lease. A payment plan must be specific in identifying how much money will be paid, when it will be paid and the method of payment. If you do not get results I recommend that you liaise with a reputable law firm to engage debt-collection services. Usually, a solicitor’s letter advising that the OMC has instructed them to recover the debt will result in some bad debtors paying.

The next round of correspondence will be a final reminder and after that it goes to court. It can be expensive to use debt-collection services and not all monies are recoverable. A licensed property service provider will assist an OMC in dealing with the bad debtors and the processes.

Take advantage of the honeymoon period you are currently in and speak to the bad debtors first. In the case for good practice, I would recommend negotiating with your property service provider so that they provide for a set number of payment reminders during their appointment.

An effective way to remind members of their existing balance is to issue statements along with memos concerning other matters, for example, window cleaning or the annual fire inspection schedule.

Any demand for monies by the OMC must conform to sections 18 and Section 21 of the Multi-Unit Developments Act 2011 . I highly recommend you also familiarise yourself with the Property Services (Regulation) Act 2011 and the ODCE website.

Paul Huberman is a member of the Property & Facilities Management Professional Group of the SCSI

Q We have just gone sale agreed on a property and are thrilled to have finally found a home we love. The house is in need of some modernisation and was built in the 1950s. We have been advised that we should have a survey carried out. I have heard that we could get either a structural survey or a pre-purchase survey done. What's the difference and what would you advise in our situation? Also what is the average cost?

A Congratulations on finding your new home. You have received good advice about getting a survey done. A UK consumer magazine which recently questioned homeowners who bought a property without having had a survey found 75 per cent of respondents regretted the decision.

In relation to the terminology of “structural survey” or “pre-purchase survey”, these are essentially the same thing and represent a report on the condition of the property.

Another survey is a valuation survey as required by lending institutions, but this is primarily a check on the value of the home. There is also a ‘snag list’, which is basically a list of minor finishing items.

Building surveys are essentially a comprehensive health check on the state of the property. They comprise of a visual survey covering the structural fabric, including: roof structure, finishes, grounds and services. The services would not normally be tested but where there is suspicion, testing is advised.

Further investigation may also be recommended if the cause of a defect is not visually obvious. The inspection will also comment on compliance with building regulations. A building survey may essentially save you money in the long run.

The property in question is about 60 years old, built before the requirement for planning permission and introduction of building regulations. Any changes that affect the external appearance will probably require planning permission, and for such alterations, even where permission is not necessary, building regulations still apply.

With regard to the cost of having a survey done, somewhere in the order of €400 to €600 is a good guide – but this can vary depending on the size, location and age of the property. The actual fee will be determined by any specific terms and conditions agreed beforehand.

Ask for a sample copy report from your building surveyor to give you an understanding of the scope of the services covered in the survey.

James Drew is a chartered building surveyor and vice-chair of the Western Region Committee of the Society of Chartered Surveyors Ireland; scsi.ie

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advice should always be sought.