I live in a small development of seven terraced houses with a grassed common area which is governed by an owners’ management company.
In 2013, one of the houses changed hands. It was bought from a bank after the previous owners defaulted on their loans. After purchasing the house, the new owner applied for planning permission to extend at the front and side of the house and began work.
It soon became clear that the new owner intended to do most of the work himself. Six years later, the site still resembles an untidy building site (steel fence, scaffolding, rubble, etc) and there is no sign of the work coming to an end.
The owner does not live in the house but arrives to the site in a van most weekdays and goes inside. There has been no evidence of any exterior work for more than two years, so there seems no plausible reason why the scaffolding, rubble, etc cannot be removed and the house painted so that it no longer looks such an unsightly mess. The owner does not park in the driveway because it is full of junk but rather parks across two visitor spaces and has verbally abused one resident when she parked there before he arrived in the morning.
At the agm of the management company in August 2016, residents stated their unhappiness at the state of the property, which was seriously detrimental to the overall look of the estate, and asked the owner when the work would be completed. During a heated discussion, the owner stated that it would be finished by Christmas 2017. He has not attended any further agms and has refused to give any further information about when the building work would be completed.
When the five-year planning permission expired in 2018, the secretary of the management company approached the local council, which sent a representative to visit the house. However, our query has been passed between different sections of the council, suggesting that no section wishes to deal with the matter.
Can you advise what can be done to bring this situation to a satisfactory conclusion?
You are right that the owners’ management company (OMC) has a legitimate interest in this matter as it clearly affects the other six properties in the terrace. For a start, other owners are having to look out on the unfinished development and it is also likely that the visual impact is affecting both property and rental values for other owners.
Separately there may be health and safety / insurance implications as the steel fence could potentially blow over, children could use the site as a play area, etc.
It is not clear from your mail if the area on which the scaffolding, steel fence etc are situated forms part of the common areas of the development. To check this, you will need to review the leases for the properties that will set out the “demised area” of each property.
You should also review the deed that transferred the common areas of the development from the developer to the OMC. This deed would normally have a map attached to help delineate the precise boundary between individual properties and the common areas. If you do not have this deed to hand, a solicitor should be able to retrieve this for you.
If there is material or equipment in the common areas, then the owner of the house in question has no right to have them there without the consent of the OMC. In this case, I would recommend that the OMC send a letter (via its solicitor) to the relevant owner giving him a reasonable period of time (for example, 14 days) to remove all materials from the common areas. If this is not done, the OMC would likely be entitled to remove all items and to dispose of them as it sees fit.
Even if the materials are in the demised area of the individual property, the OMC may well be able to move them. The lease signed by each owner when they purchased their property likely contains a clause to the effect that they must keep their property in a good and tenantable state. From the information in your query, this is not happening in this case so it is likely that, on these grounds, the OMC would also have the right to remove the offending materials.
House Rule
To support you in the future, the OMC may also wish to pass a House Rule to the effect that the exterior of all houses must be kept clean and tidy at all times, except for defined periods and by permission of the OMC. Possibly, the OMC could put in place a procedure in this regard.
As the Multi-Unit Developments Act of 2011 allows an OMC to retrieve “the reasonable costs of remedying” a breach of a House Rule, this may also allow the OMC to bill back to the relevant owner the costs of removing the materials. Note that a change to a House Rule would need to be agreed by a general meeting of members of the OMC. Again, your solicitor would be able to advise on this.
Given the attitude of this owner to visitor parking, the OMC may also wish to consider options on this matter. It likely has the right to introduce regulations for the good management of the visitor parking in the interests of all owners and many OMCs have done this (such as limiting the use of the visitor spaces to no more than two stays a week).
The OMC would then need to have a way to enforce any such regulations, for example, through the employment of a clamping company. This will help to ensure that this amenity, which is owned collectively, is available for the benefit of all of the seven properties and is not commandeered by one owner only.
Timeline
As regards the council and the granted planning permission, the timeline for a lapse, assuming the correct commencement notice has been completed, is based on “substantial completion” of the prescribed work as outlined within the planning documentation and not specifically full completion of all work.
A portion of the work could be exempted development and there is, therefore, no defined timeline for completion. Council involvement at this point in the project could potentially lead to further delays and may not be in the OMC’s best interest. However, this would potentially be a further avenue for you to explore, especially if the OMC did not make progress on the issue itself.
It sounds as though this property owner has left his neighbours in an intolerable position for years by behaving in essentially an anti-social way and the OMC has every right to bring this matter to a head. However, in doing so, it needs to ensure that it acts lawfully and does not leave itself open to any future claims by the property owner involved.
Finbar McDonnell, is a Chartered Property Manager and a member of the Society of Chartered Surveyors Ireland, www.scsi.ie
