The management company and agent for out apartment scheme are not addressing issues of concern for which they receive a high service charge and an additional €750 towards the sinking fund which is set aside to deal with major repairs. Since the arrival of Covid-19 in 2020 there has not been an agm but a virtual hearing, where issues are not personally expressed.
In my view, the management company is hiding behind the cover of the agent who reports to them. For this reason, resident owners require an Ombudsman to act on their behalf. What can we do to ensure the managing company and agent address residents’ concerns?
The issues raised in this question of the management company and the agent addressing problems in the company is one that requires clarification, writes Aisling Keenan. The role of the managing agent is to take instruction from the owners’ management company (OMC) and the performance of the managing agent in their duties is the responsibility of the directors of the OMC to address. If it is a case where the managing agent is not carrying out the wishes of the directors of the OMC, then this matter should be addressed with the managing agent. In the event that the OMC is not getting the service that they require from their managing agent, then the OMC can seek to appoint a different managing agent to deal with the problem. If the issue is that the OMC is not providing instructions to the managing agent, then the governance and operation of the OMC should be looked at.
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Members of an OMC can become more involved in the decision-making process and the governance of their management companies by becoming directors themselves. Owners often make the mistake of referring to the OMC in the third person, as if it is a separate entity, but it is not. As the title indicates, the management company is, in essence, the owners collectively becoming involved to effect change. The problem is that there is no regulation of OMCs in Ireland and when they are not run properly it is the function of the Corporate Enforcement Authority (CEA) to enforce the law as it would with any company in the State. This type of enforcement, more often than not, is not compatible with issues that arise in an OMC.
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Virtual agms are provided for in law by an amendment to the Companies Act 2014, Companies (Miscellaneous Provisions (Covid-19) Act 2020. While some apartment owners will have a preference for in-person agms, others will have a preference for virtual. There are advantages and disadvantages of both. If the meeting is held online, then this is a legitimate agm, providing that all requirements are met. For example, the notice period, the agenda and the issuing of the annual report in accordance with the requirements set out at Section 17 of the Multi-Unit Developments Act 2011. At a virtual meeting, owners have a right to be heard in the same way as they would in an in-person meeting. Owners may request to have meetings held in person instead of online.
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An OMC may make a complaint to the Property Services Regulatory Authority (PSRA) for improper conduct against a licensed property services provider for the purpose of ensuring compliance with the law. The regulator for managing agents has recently published a code of practice that agents should adhere to, however, there are no sanctions if they do not adhere to the code.
Aisling Keenan is a property managing agent and consultant and an associate member of the Society of Chartered Surveyors Ireland
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