We are a small and very pretty housing development in a village in the southeast of the country. Although the developers completed construction several years ago, they have failed to transfer the ownership of common lands to the owners, as demanded under the Multi-Unit Developments Act, otherwise known as the MUD Act.
Despite several requests and legal actions taken against the developers (who came up with reasons why they were unable to attend the hearings), they have still not transferred the common lands to us, the residents. As a last resort, we jointly agreed to pay the developers a large sum, hoping this could finally be resolved. However, our hard-won olive branch has not been accepted by the developers.
One major outcome of this failure to pass over the common lands is that potential buyers are being strongly advised not to purchase by solicitors and bank officials, rendering our properties only attractive to cash buyers. We would greatly appreciate a solution to our dilemma.
Seeking a prompt, efficient and inexpensive resolution within the construct of the Multi-Unit Developments Act 2011 has proven elusive to many. Whilst the MUD Act initiated a fairer environment for property owners in multi-unit developments, there is much that can be improved.
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Property-service providers are licensed in four categories of competence by the PSRA (Property Services Regulatory Authority). There is no such identification for solicitors’ areas of expertise within the vast expanse of the law.
Ensuring you retain a competent solicitor in matters relating to common-area transfer involving an owners’ management company (OMC) is essential. Your OMC will need to secure a solicitor who can demonstrate experience, knowledge and evidence of their success along with a detailed breakdown of the costs for their services. This will guide transparency for all the OMC members and inform the budget to fund the process.
As the developer has failed to observe Section 5, (1) of the MUD Act 2011, your OMC may make an application to the Circuit Court under Section 24 which reads as follows:
“24.— (1) A person specified in section 25 may make, in respect of a multi-unit development, an application to the court –
“(a) for an order under this section to enforce any rights conferred, or obligation imposed, by this Act or any rule of law, or
“(i) transferring control of an owners’ management company from a developer to the unit owners, where the court is satisfied, the developer has unreasonably refused to effect such transfer, or the unit owners have unreasonably refused to accept such transfer.”
Have your solicitor send one letter notifying the developer of the OMC’s intention to apply to the Circuit Court on the passing of a specific date if they do not transfer the common areas to the OMC. On the passing of the cut-off date, apply to the Circuit Court. This will limit the time and cost of correspondence and debate between both sides. It will also substantiate your case if your application is defended.
Once your OMC has obtained a court order, the developer will face consequences such as fines or imprisonment if they do not comply.
The wheels of justice turn slowly and expensively, so be clear, be funded and be patient.
Paul Huberman is a chartered property and facilities manager and a fellow of the Society of Chartered Surveyors Ireland
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