Judge's ruling gives residents of apartments new legal rights

The_Conductor

http://www.herald.ie/national-news/courts/judges-ruling-gives-residents-of-apartments-new-legal-rights-1708975.html

Wednesday April 15 2009

People living in apartments have new rights after a judge made a ruling which may affect thousands of residents.

At present, flat-dwellers have not been able to take their grievances to a watchdog for a cheap resolution to their complaints -- and have had to take expensive legal action.

But a ruling in the Circuit Civil Court by Judge Jacqueline Linnane has changed that.

Apartments are usually bought on very long leases, often over several hundred years, at rents as low as 5c a year.

Many owners regard this as a legal fiction to enable the block to be maintained by the management company in which each apartment owner is a shareholder.

Judge Linnane ruled that such owners are tenants and are therefore not excluded from the provisions of the Residential Tenancies Act 2004.

The upshot of this is that apartment residents will be able to take their appeals to Private Residential Tenancies Board instead of taking costly legal action. The judge refused to accept jurisdiction of a case in which Gary Mallon, owner of an apartment at Elmfield Court, Ninth Lock Road, Clondalkin, Dublin 22 was sued by S & L Management Company Limited for arrears of service charges levied on his apartment.

Barrister Tim Dixon, counsel for Mallon, told the court the relationship of landlord and tenant existed between the management company and Mr Mallon. Accordingly, Mr Mallon should be entitled to avail of the dispute resolution services of the Private Residential Tenancies Board.

Rejected

Mr Dixon said the Court had no jurisdiction to hear the case since the Residential Tenancies Act required all disputes between landlords and tenants to be dealt with by the Board unless the dwelling was of a type excluded from the ambit of the Act. He said Mr Mallon's apartment was not an excluded dwelling.

Niall Fitzgibbon, counsel for S & L Management, submitted that the relationship between the management company and the apartment owners was not, in the true sense of the meaning of the phrase, that of landlord and tenant. He said the lease had been entered into as a matter of expediency.

Mr Fitzgibbon said the Board did not regard Mr Mallon's apartment as a dwelling to which the Residential Tenancies Act of 2004 applied and that if the court had no jurisdiction the company would have no means of pursuing the arrears of service charges.

Una Cassidy, counsel for the Board, said it had never been the intention of the Oireachtas that apartment owners would be included in the Residential Tenancies Act 2004.

Judge Linnane, in a reserved judgment, said the relationship of landlord and tenant did exist between apartment owners and management companies.

An amendment to the Residential Tenancies Act 2004 which would remove apartment owners from the remit of the Act is currently going through the Oireachtas. In the mean time it remains to be seen how many will avail of the dispute resolution services of the PRTB and whether it will cause improvement in the running of apartment blocks.

bobbysands81

smccarrick wrote: »

An amendment to the Residential Tenancies Act 2004 which would remove apartment owners from the remit of the Act is currently going through the Oireachtas. In the mean time it remains to be seen how many will avail of the dispute resolution services of the PRTB and whether it will cause improvement in the running of apartment blocks.

Yesterday I wasn't sure if this statement was actually true... but I think it might be.

The Housing (Misc Provisions) Bill 2008 is currently going through the Houses of the Oireachtas, tucked away in one of the Parts (Page 64) is the following:

http://www.oireachtas.ie/documents/bills28/bills/2008/4108/B41b08s.pdf

1 Section 3(2)

(a) In paragraph (c)(ii), substitute “a household within the
meaning of the Housing (Miscellaneous Provisions) Act
2008 assessed under section 20 of that Act as being qualified
for social housing support” for “ a person referred to
in section 9(2) of the Housing Act 1988”. 20

(b) Substitute the following for paragraph (d):

“(d) a dwelling—

(i) the occupier of which is entitled to acquire,
under Part II of the Landlord and Tenant
(Ground Rents) (No. 2) Act 1978, the fee 25
simple in respect of it, or

(ii) which is one of a number of dwellings comprising
an apartment complex, the occupier of
which would be so entitled to acquire the fee
simple in respect of it but for the fact that it 30
is such a dwelling,”.

PIMPHO

bobbysands81 wrote: »

Yesterday I wasn't sure if this statement was actually true... but I think it might be.

The Housing (Misc Provisions) Bill 2008 is currently going through the Houses of the Oireachtas, tucked away in one of the Parts (Page 64) is the following:

http://www.oireachtas.ie/documents/bills28/bills/2008/4108/B41b08s.pdf

1 Section 3(2)

(a) In paragraph (c)(ii), substitute “a household within the
meaning of the Housing (Miscellaneous Provisions) Act
2008 assessed under section 20 of that Act as being qualified
for social housing support” for “ a person referred to
in section 9(2) of the Housing Act 1988”. 20

(b) Substitute the following for paragraph (d):

“(d) a dwelling—

(i) the occupier of which is entitled to acquire,
under Part II of the Landlord and Tenant
(Ground Rents) (No. 2) Act 1978, the fee 25
simple in respect of it, or

(ii) which is one of a number of dwellings comprising
an apartment complex, the occupier of
which would be so entitled to acquire the fee
simple in respect of it but for the fact that it 30
is such a dwelling,”.

I'm a bit confused. Care to elaborate on your point?

Seanie71

Hi,

Yes a tad bit confused too.

I need to know if Gary Mallon given the judges ruling is now responsilbe to pay his outstanding management fees to the management company?

Seanie

jd

Seanie71 wrote: »

Hi,

Yes a tad bit confused too.

I need to know if Gary Mallon given the judges ruling is now responsilbe to pay his outstanding management fees to the management company?

Seanie

That hasn't been decided- the circuit court decided it comes under the remit of the PRTB

Milk & Honey

The Court ruled it had no jurisdiction in the matter.It could not order him to pay the service charges. It means the management Co will have to register the tenancy with the PRTB and pursue the claim for service charges with the PRTB.

markpb

The important part is highlighted:

bobbysands81 wrote: »

http://www.oireachtas.ie/documents/bills28/bills/2008/4108/B41b08s.pdf
(ii) which is one of a number of dwellings comprising an apartment complex, the occupier of which would be so entitled to acquire the fee simple in respect of it but for the fact that it is such a dwelling,”.

It exempts management companies and apartment owners from having to deal with the PRTB, a strikingly dim mistake to make in the first place.