Property Clinic

Thu, Nov 8, 2012, 00:00

Your queries answered

We are the OMC (owners management company) for a complex of three apartment blocks built in the 1970s. We do not have a certified fire safety system. To reach the advised minimum standard for certification would require considerable financial outlay.

What are our legal responsibilities in this? We believe that we do not have to do anything except manage these existing buildings to the standards applying in the 1970s.

This is a common situation in older multi unit developments where the buildings pre-date the requirement for a fire safety certificate under the Building Control Act of 1990.

Regardless of the age of a building section 18(2) of the Fire Services Act 1981 places a duty of care on people in control of buildings to take all reasonable measures to prevent fires and to ensure, as far as is reasonably practicable, the safety of the occupants in the event of a fire.

Fire safety measures would deal with preventing an outbreak and spread of fire and smoke, and effective evacuation. So compliance requires the installation and maintenance of fire alarm systems, emergency lighting, ventilation systems and fire blocking to ducts and corridors.

As the owners management company is the owner of the building and its common areas, the directors of the OMC would be considered those in control of their multi-unit development.

The introduction of the annual report in the Multi-Unit Developments Act 2011 and the requirement to issue a statement “setting out, in general terms, the fire safety equipment installed in the development and the arrangements in place for the maintenance of such equipment” - brought a new responsibility to directors of OMCs. So now they must aware of the fire safety arrangements and share this with their co-owners.

If there are none, because the building is old and pre-dates such measures, it should act as an impetus for investigating whether such measures are necessary.

The best way to deal with the anomaly referred to in your question, as with most items of significant expenditure in an apartment scheme, is to employ a professional to deal with the issue.

I would recommend a fire safety consultant, chartered building surveyor or consulting engineer with relevant expertise.

They should be tasked with:

* Identifying the fire risks and deficiencies

* Preparing a specification of works

* Project managing the works

Issuing their professional opinion at the conclusion, confirming that the OMC and its board have taken such reasonable measures to prevent fires

Following the above, the OMC can, for a period of time, rely on this confirmation as satisfying their duty of care and responsibilities to the members of an OMC.

Dublin City Council has a very informative section on apartment living and fire safety on its website: dublincity.ie.

* Paul Mooney is a chartered surveyor and member of the Property and Facilities Management Professional Group of the SCSI ( scsi.ie)

I sold an apartment in 2005 and bought a second-hand house a few months later. I took a mortgage with one bank A. I used the same solicitor to handle both sale and purchase.

In 2008, I switched mortgage to bank B to avail of a better offer. Legal work relating to the switch was carried out by the same solicitor.

I recently got a call from the legal department in bank B outlining that they had not yet got the deeds.

Despite numerous calls from the bank to my solicitor there has been no progress. I am now in the process of following up with my solicitor.

Should I be concerned? What are the implications for me personally regarding this?

In a worst-case scenario, am I covered by the Law Society over the inactions of the solicitor if this is not resolved?

Looking at the bigger picture, should I be concerned with the original purchase; that perhaps the solicitor may not have handled the Stamp Duty payment as required.

How can I confirm that all is in order here and, if there is an issue, am I liable, or is this covered by the Law Society? My original statement from the solicitor for both purchase and sale contains a deduction relating to stamp duty.

You should telephone your solicitor and follow up with a letter to him/her – and copy the letter to the managing partner of the firm – outlining the call which you received from the legal department in bank B and your concerns.

There are four main issues of concern to you and your bank:

(1) That the stamp duty was correctly paid on the purchase deed for your property in 2005 and that your title (evidence of ownership) to the property was registered (along with the bank A mortgage)

(2) That the bank A mortgage was discharged in full by your solicitor from the proceeds of the loan cheque received by your solicitor from bank B in 2008

(3) That written evidence of the released bank B mortgage was registered on your title and that the new bank A mortgage was registered against your title

(4) That the solicitor is in possession of the title deeds to your property.

Before releasing a loan cheque to you through your solicitor, the bank (if it is not engaging its own separate legal representation for the transaction) will have received an undertaking (which is given under your authority) from your solicitor to, in broad terms:

(a) Ensure that you have good marketable title to the property being mortgaged and;

(b) Ensure that the bank obtains a valid first legal mortgage over the property being mortgaged (in your case, this required the discharge of the bank A mortgage).

The solicitor’s undertaking usually includes ensuring that the correct stamp duty is paid and that both the purchase deed and the mortgage are lodged for registration in the Registry of Deeds or the Land Registry.

After registration is completed, the solicitor must usually complete and lodge a report and certificate of title with the bank as soon as practicable together with all the title documents.

Pending compliance with those requirements, the solicitor usually undertakes to hold all the title documents to the secured property in trust for the bank.

If you do not receive a satisfactory response from your solicitor, then you may refer the matter to The Law Society of Ireland which is the regulatory body for solicitors in Ireland.

The Law Society of Ireland has a formal complaints procedure details of which may be found on its website, lawsociety.ie(the Consumer Interest tab).

Breach of an undertaking and failure to communicate to a client are instances of professional misconduct by a solicitor.

In cases where an undertaking is given to a bank and has not been discharged,

both the bank and the client may make a complaint to the Law Society (they may also of course explore the possibility of litigation).

If it transpires that the money which you gave to your solicitor to stamp your deeds was not used to stamp and register your deeds and the money is missing, then a claim may be made for a refund of the stamp duty to the Law Society’s compensation fund.

Any claim must be made within six months of the date when you first become aware that the money was missing.

* Julie Fitzgerald is an associate solicitor with WhitneyMoore.