Property Clinic

QMy 1960-built house shares a back boundary wall with a house which was erected in the 1930s. The wall has begun to crumble and I would like to know who is responsible for removing and replacing the wall. The other owner knows about this but lives abroad.

A It is first necessary to establish the legal owner of the wall as this determines primary responsibility for repairs. Initial inspection may provide indicators. For example, the wall construction may be bonded or tied in with adjacent dividing walls in the rear garden(s) on the owner’s side. Support piers are also likely to be on the owner’s side. Given that your neighbour’s property was built first, the chances are that the wall is in their ownership.

The formal means of determining ownership is to inspect the deeds and deed maps for both properties in order to establish the position of the legal boundary. If the wall is constructed on your side of the legal boundary it is your responsibility, if it is on the legal boundary it is shared and if on your neighbour’s side of the legal boundary it is their responsibility.

This process may be somewhat complex as, apart from getting your neighbour’s cooperation in sourcing and inspecting their deeds, you may need professional assistance in interpreting the relative positions of the legal boundary and the wall. This process will be necessary if you cannot reach prior agreement on repairs.

If you can establish that the wall is in your neighbour’s ownership, have requested they carry out the necessary repairs to the wall and you find that after a “reasonable time” they have failed to do so, then you may consider applying to the courts under the Land and Conveyancing Law Reform Act 2009 for an order for the repairs to be carried out on the wall. The court may make such an order as it sees fit. You should note however that your neighbour may be entitled to claim contribution towards the repair works on the wall to reflect the benefit that you will gain to your property by virtue of said works being carried out.

An amicable approach and cooperation on repairs without risking potentially contentious ownership questions, if possible, is desirable.

Paddy Shine is a chartered geomatics surveyor and civil engineer

Q I live in a small complex of 13 apartments, of which nine are owner occupied. It’s managed by the management company which reduces costs and which we have found to be, until now, effective.

Recently two apartments have been abandoned by their owners, they are vacant and management charges have not been paid. We have approached the banks that finalised the transactions to have the position regularised and they refuse to reply to correspondence despite the fact that we continue to insure these properties with their interests noted. We are also concerned that there may be water leaks in one of them requiring repair.

We would appreciate any advice you could give on this matter.

A All service charges are deemed collectable. Therefore title to a property should not pass without all service charges due to your owners management company (OMC) being discharged by the vendor.

The service charge is a contractual obligation imposed by the lease, and must be paid by the lessee (the apartment owner), and all successors in title.

It is a charge on the lessee in respect of the ownership of the property, and if it’s not discharged by the lessee in possession, - as is the case in your Management Company - then a breach of covenant exists, and the incoming lessee takes on the breaches of covenant which have to be remedied.

Arguably any new purchaser would be obliged to pay all arrears if they are not discharged by the current owner.

Your OMC should put the bank (or receiver should one be appointed) on notice of the breach of covenant so that, in the event that they proceed to close a sale, the OMC will hold the incoming lessee responsible for any outstanding service charges and the bank (or receiver) should put the incoming lessee on notice accordingly.

It is in the bank’s interest to deal with these issues as they may affect the saleability of the property.

The non-payment of service charges may put an unfortunate strain on the cash flow within your OMC, albeit for the short to medium term, and the board of directors, and members of the OMC, may consider introducing a service charge contingency and bad debt provision to ensure you have sufficient funds to maintain all essential common area services.

The OMC should make the bank aware of the current water ingress problem that may not only affect their property but may also be impacting on other properties, the common area, the insurance policy, etc. After giving the bank reasonable notice to rectify the water ingress issue within their own demise, in the interest of good estate management, the board of directors, exercising its right under the lease agreement, may have no alternative but to undertake the necessary repairs itself.

Furthermore, the solicitor acting for any purchaser should be advised of the service charge arrears and water ingress. It may cause the bank to take action if a sale is to proceed
Pearse McElroy is a member of the Irish Property and Facility Management Association

Q As a director of a multi-unit development (MUD) management company I would like to see the establishment of an association of such directors with a view to liaising on matters of mutual interest.

Can you suggest how one could go about making the necessary connections? Is there a list of MUDs so that one could ascertain identities of directors?

A This is a good idea and I would suggest that meeting and networking with other owners management company (OMC) directors would be a very useful way of sharing knowledge and expertise.

There is no definitive list of every OMC in Ireland. The closest thing to such a list can be found by searching a specific company on a company search website. The company information such as the names and principle place of residence of the directors of a company will be provided for a nominal fee. Contacting the directors of these companies directly could be considered unsolicited correspondence however.

The best way to build and grow your own base of contacts organically in any industry is to tirelessly network. Most professionals that you will meet during the embryonic stages of your association’s growth will be seeking to know your scope of expertise and how useful it will be for them to align themselves with your association.

There are many different existing associations, institutes and representative groups in the property industry but there is an opening for a robust representation of OMC directors. All of the bodies provide continual professional development (CPD) seminars for their members. These seminars would be a great place to meet industry professionals and expand your knowledge. I would imagine that the cornerstone of your association’s ethos will be derived from the Office of the Director of Corporate Enforcement (odce.ie).

You will need to build a website which is easily navigable and updated often with informed content. A message board or discussion forum for participants will lead to greater discussions on relevant matters.

Your local Chamber of Commerce or the Institute of Directors in Ireland might be a good place to start networking.

Paul Huberman is a member of the property and facilities management professional group of the Society of Chartered Surveyors Ireland (scsi.ie)