Our estate of eight houses has been taken in charge by the local council. We have retained ownership of the common areas as some of these areas include the back gardens of four of the houses. They are listed in the management company articles as being for the sole use of each property.
We now want to transfer the common areas to each house so that we can dissolve the management company. All members are in agreement.
We would also like to transfer the parking spaces in front of the houses to each property but these are listed on the folio as common roadway. Does this mean that they are now part of the public roadway? It’s a cul-de-sac with no through road and transferring them would not affect access to any other property. The estate was built in 2002 so could easement rules apply or can we transfer them directly to each house so that they become part of the land owned?
Aisling Keenan writes: There are a number of questions that arise from your query. The first is that you say that your "estate of eight houses has been taken in charge by the local council" but that you "have retained ownership of the common areas". As such, which part(s) of the estate did the council take in charge? In retaining ownership of the common areas, does this mean that the common areas of your development have been legally transferred to your owners' management company (OMC)? If the common areas have been legally transferred, then there should be a map outlining these.
Assuming they incorporate the car-parking spaces and the gardens that you mention, and that they have been legally transferred to the OMC, and that all owners in the OMC are in agreement to change, then it should in principle be possible to transfer the car-parking spaces and gardens from the OMC to individual owners. To put this into effect would require the OMC to get legal advice on how best to do this and then to draft the legal agreements to ensure the changes are properly made.
In doing this, you may already have considered the advantages and disadvantages of your planned course of action. For example, you say that you want to dissolve the OMC but you don’t say why. There may be some cost savings in this but I would note that one purpose of this company is to protect the property rights of the eight individual property owners. Interdependency of units is one reason for the establishment of an OMC. What this means is, shared spaces and property that do not belong to any one owner are vested in an independent entity (your OMC) which all owners own collectively.
You mention that there are eight houses with four gardens. Assuming the eight units form part of one building with four overhead four, then the shared space and property amounts to the structure of the building or buildings where the roof of one unit is the floor of another and so on. The Multi-Unit Developments Act 2011 defines such common areas as external walls, foundations, roofs and internal load-bearing walls. It is this interdependency among owners and units that could create a possible risk to individual owners unless there is a robust legal framework in place such as an OMC.
If the owner of an upstairs unit chose to allow their unit to resort to dereliction allowing the roof to collapse and the walls to crumble from lack of maintenance, this would have a detrimental impact on the other units in the building and to protect their interest there must be legal recourse. This is in the form of an OMC as the OMC has a legal responsibility to maintain the buildings for all owners.
Regarding the car-parking spaces that are listed as common roadway, if these are included on the aforementioned map attached to the deed of transfer of the common areas, then normally this would refer to communal parking. When it comes to conveyancing, car-parking spaces are either assigned to particular units or it is communal parking. As such, you would need to verify this with your legal adviser before you proceed further.
Aisling Keenan is a commercial agency surveyor and associate member of the Society of Chartered Surveyors Ireland, scsi.ie.