As with many multi-unit developments, I am sure, we have a number of owners who have for many years not paid their service charge or management fees.
Over the years at agms there have been calls to “name and shame” those owners in the hope it may instigate payment. Our owners’ management company (OMC) has always quoted good old GDPR as the reason why non-paying owners cannot be named. However, OMC members are allowed to access the names and apartments owned by all members, so we are already allowed access to personally identifiable information by virtue of being a member of the OMC.
It has also been noted that in other European countries, notably Italy and Spain, names of non-paying OMC members are published. If GDPR is a European directive, why would it be treated differently by each country?
Can you advise as to whether a management company is allowed to share names of non-payers, what right owners have to see the names of non-payers and whether naming them is an advisable route to take?
You are correct that this is a live issue for many OMCs.
In my experience, most property owners in a multi-unit development pay their service charges on time and in full each year. This is crucial to the smooth running of a development. There will be some owners who have genuine issues in a given year as regards payment, normally they set up a payment plan with regular payments to ensure charges are paid. And then there may be a small minority who decide that they will not pay the charges, for whatever reason.
These owners effectively engage in antisocial behaviour against their neighbours and fellow owners. They expect to benefit from OMC services, such as refuse collection, cleaning of common areas and insurance of the building, while the bills are paid by others. The unfairness of this generates huge frustration for owners who pay their charges.
The frustration is compounded by the limited steps an OMC can take in these circumstances and the reality that remedies available (including legal ones) are cumbersome and weak. As well as sending reminders, an OMC may be able to restrict the right to park and will likely add interest to the amount owing. This will assist in some cases, but the property owner may not have a car and may ignore the interest just as they ignore the underlying debt.
As regards the legal route, OMCs routinely engage solicitors to serve proceedings on these owners. However, going down this route takes time, means the OMC incurs extra costs upfront and involves extra work. The process is also not straightforward. For example, it can be hard to serve proceedings on owners who do not co-operate and court appearances may need to be held where the debtor lives rather than where the OMC is based. Even if a court judgment is obtained, that may not lead to payment and ways to enforce court judgments (such as use of a sheriff) can be unsatisfactory. The situation for property owners who live outside the State is more complex still.
That said, the above steps do work in some cases and are worth pursuing. And if a court judgment is obtained, it allows for the further step to be taken of entering the judgment on the register of judgments maintained by the High Court, which can lead to the name of the person entering the public domain.
In relation to your query as to whether those property owners in arrears can be “named and shamed” to other company members, for example at the agm or in communications to members, the advice in Ireland is that this cannot be done.
The body responsible for this matter is the Data Protection Commission (DPC), which is responsible for upholding the right of individuals to have their personal data protected and is the Irish supervisory authority for GDPR.
As part of its work, the DPC issues case studies to illustrate how it believes data protection law should be applied. In 2023, it marked the fifth anniversary of GDPR by issuing a document containing 126 case studies (available from the DPC website).
The current situation is outdated and not fit for purpose
Case study 72 in this document addresses the issue you raise. It involves an OMC that had a specific clause in its constitution that allowed disclosure of payment or non-payment information to other unit owners. Having first engaged with their OMC, a property owner complained to the DPC that their rights under GDPR had been breached and they had not agreed to any such policy. The DPC provided guidance to the parties including a copy of its document entitled Data Protection Considerations Relating to Multi-Unit Developments and Owners’ Management Companies. It also noted that, under data protection law, a disclosure must be necessary and proportionate to achieve a specific, explicit and legitimate purpose. The OMC stated its belief that publication of the names was necessary to support the OMC in obtaining payment of service charges.
Following consideration of the matter under section 109(c) of the 2018 Data Protection Act, the DPC advised that the OMC had not provided an adequate lawful basis for the processing of the personal data of property owners and asked the OMC to review its constitution to ensure compliance with the DPC guidance.
As such, it does appear that the current position in Ireland, as per the DPC, is that the names of property owners in arrears on their charges cannot be shared with other OMC members.
In relation to your point on the situation in other EU member states, I am not familiar with this but DPC decisions are subject to appeal to the courts if you feel the DPC is misinterpreting or “over-interpreting” the GDPR.
The wider context is a need for an urgent overhaul of legal remedies for collection of service charges by MUDs. The current situation is outdated and not fit for purpose. It generates ongoing problems for OMCs and considerable extra work for managing agents. The matter falls into the wider context of a need to reform the 2011 MUD Act. A commitment to do this was contained in the 2020 Programme for Government although this has not progressed up to now.
Finbar McDonnell is a chartered property manager and a member of the Society of Chartered Surveyors Ireland
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