Access to my own apartment?

athtrasna

djimi wrote: »

There is a wider issue here about whether or not tenants should have protection against getting caught up in a dispute between their landlord and the management company. Personally, while I understand the position of the management company, I think its absolutely ridiculous that a tenant can run the risk of having their car clamped or being locked out of their apartment because of the actions of the landlord, and I think that someone thing needs to be done to protect against such action being taken where a tenant is involved.

If no action can be taken to penalise the owner such as withdrawal of access, parking etc there is no incentive to the landlord to pay the fees. The advice surely should be not to rent in a managed development or ensure that there is a clause in the lease where the landlord commits to paying the management fees.

Marcusm wrote: »

Read my post, the right of passage across the common area will be contained in the lease. To deny those rights is effectively denying use of the apartment. I can't see any solicitors being stupid enough to draft or permit those rights to be abridged administratively by a mgt co/agent. The approrpiate remedy is to seek forfeiture of the lease if the issue is serious enough.

The management company would have had to issue a notice of withdrawal of services prior to blocking the fob so I am presuming they took legal advice on this.

djimi

athtrasna wrote: »

If no action can be taken to penalise the owner such as withdrawal of access, parking etc there is no incentive to the landlord to pay the fees. The advice surely should be not to rent in a managed development or ensure that there is a clause in the lease where the landlord commits to paying the management fees.

I understand that it is hard for the management company to chase fees without having to such potential measures as penalties, however the problem I have is that penaoties such as the one the OP is suffering is not harming the landlord, it's directly harming their tenant who is in no way involved in the dispute and can have no direct influence over it. For the most part the tenant probably does not even know that a dispute is taking place.

It's all well and good saying not to rent in managed complexes, but considering the majority of apartment buildings are managed that would rule out a significant portion of the rental market, and make apartment rental virtually impossible. As for having a clause in the lease, that's all well and good on paper but in reality it means virtually nothing to a landlord who can't/won't pay their fees.

It's about giving protection to parties who are uninvolved and unaware of the dispute. A homeowner in dispute with the management company can be aware of such penalties and be prepared for them. Usually the first time a tenant is aware of such measures is when they come out to find their car clamped, their door fob does work, they can't get in the gate etc. That's not right, and the law needs to be changed to protect against such a situation.

Lantus

Marcusm wrote: »

Read my post, the right of passage across the common area will be contained in the lease. To deny those rights is effectively denying use of the apartment. I can't see any solicitors being stupid enough to draft or permit those rights to be abridged administratively by a mgt co/agent. The approrpiate remedy is to seek forfeiture of the lease if the issue is serious enough.

Unit owners have a right of access at all times to their apartment through comon areas like doors or stairs owned by the management company. These areas are maintained and run and heated and lit and made safe and secure through service fee's/

HOWEVER, such a right of access is CONDITIONAL upon the service fee being paid. So The failure is initially on the side of the unit owner to not pay the service charge. The company then has the option of withdrawing services for the common area services it provides.

The lease documents I have read for our development are extremely clear in tis regard and I doubt they would be wildly different anywhere else.

sharpsuit

The management agent simply does not have the legal authority to deprive the tenant of access to the apartment block simply because of an unpaid debt by the landlord.

OP has two options. One is to avail of the Residential Tenancies Act to make a complaint, through the landlord, to the management company. Given that the landlord does not appear to be responsive in this case, OP might consider the second option - an injunction against the management agent and management company to allow the tenant renewed access.

I took an injunction in a similar case and the management agent handed over the new fob on the morning we were making our application.

I also doubt that the National Property Services Regulatory Authority will approve of the actions of the management agent.

Paulw

sharpsuit wrote: »

OP has two options. One is to avail of the Residential Tenancies Act to make a complaint, through the landlord, to the management company. Given that the landlord does not appear to be responsive in this case, OP might consider the second option - an injunction against the management agent and management company to allow the tenant renewed access.

Or, the OP should simply contact the landlord every time he wants access to the building. The problem is with the landlord. Plain and simple. The OP should hassle the landlord until the situation is resolved.

Qualitymark

All the sea-lawyers here can have their opinions on the legal position of the tenant; if I were the tenant, though, I'd be looking for a sensible, non-confrontational lawyer to represent me and work out a deal with the management company and the landlord. The management company might (this is obviously not legal advice!) be prepared to allow access in exchange for part of the rent being paid to it rather than the landlord, if this was properly and legally set up in a formal agreement with landlord and tenant; this might satisfy the landlord too, who knows?

Any amount of drama-queening isn't going to solve the problem, but negotiation by a lawyer with experience and good sense may.

Lantus

Qualitymark wrote: »

All the sea-lawyers here can have their opinions on the legal position of the tenant; if I were the tenant, though, I'd be looking for a sensible, non-confrontational lawyer to represent me and work out a deal with the management company and the landlord. The management company might (this is obviously not legal advice!) be prepared to allow access in exchange for part of the rent being paid to it rather than the landlord, if this was properly and legally set up in a formal agreement with landlord and tenant; this might satisfy the landlord too, who knows?

Any amount of drama-queening isn't going to solve the problem, but negotiation by a lawyer with experience and good sense may.

Its an idea but legally there is no connection between a tenant and the management company so its a messy situation. Ultimatley the landlord needs to agree to some rent going the way of the tenant or company which is unlikley unless he's legally forced to (not possible unless his arrears are in exces of 38k and you enter high court territory.)

The easy recoure for the tenant which hurts the landlord is to hand his notice in due to breach of contract. Prior to this I would call the landlord and give say 48 hours notice that notice will be coming his way unless its resolved. Whats the point of living somewhere you can't get access to?

The entire building including main or common entrances is the property of the company and yes they do have the right to withdraw services which could be interpreted as access where any such access has a an attributable cost associated with service fee payment. Magnetic key fobs are expensive to run and maintain. The landlord wants to enjoy all these services but pay nothing in return. The company under the leas document which is a legally binding document the ower signed allows for service provision to be withdrawn where the owner fails to make service fee payments.

I am sympathetic to the tenant but I feel its better than clamping if applicable.

jd

Lantus wrote: »

Ultimatley the landlord needs to agree to some rent going the way of the tenant or company which is unlikley unless he's legally forced to (not possible unless his arrears are in exces of 38k and you enter high court territory.)
.

AFAIK Management companies have been appointed as equitable receivers in the Circuit Court.

Lantus

jd wrote: »

AFAIK Management companies have been appointed as equitable receivers in the Circuit Court.

Thats excellant news! any references you can point to?

jd

Lantus wrote: »

Thats excellant news! any references you can point to?

http://www.apartmentowners.ie/wp-content/uploads/2012/10/DEBT-COLLECTION-FOR-OMCs-JMurphy.pdf

Temple Gardens v. ‘Mr. Publican’
 Debt in excess of €16,000
 Execution Order obtained - €9,000 paid
 Consistently defaulting in payments
 Director of OMC appointed Receiver over
rents paid by Tenants to Mr. Publican
 Tenants ordered by Court to pay OMC
directly until balance of debt and costs are
discharged

Lantus

jd wrote: »

http://www.apartmentowners.ie/wp-content/uploads/2012/10/DEBT-COLLECTION-FOR-OMCs-JMurphy.pdf

cheers, had that already but must of forgotten!

athtrasna

Lantus is correct, there is no connection whatsoever between the tenant and the management company. There is essentially a flaw in the thread title, the reference to "own apartment". The management company own the apartment but would have a long term lease with the landlord (possibly up to 1000 years). The landlord then sublet to the OP.

Sharpsuit it will have been the management company not the agent who made the decision to revoke access and withdraw services. The agent was probably charged with implementing this decision but it's not their decision.

Qualitymark

athtrasna wrote: »

Lantus is correct, there is no connection whatsoever between the tenant and the management company. There is essentially a flaw in the thread title, the reference to "own apartment". The management company own the apartment but would have a long term lease with the landlord (possibly up to 1000 years). The landlord then sublet to the OP.

Wait, you mean my cousin, who bought an apartment in Dublin, in a building managed by a management company that's supposed to maintain the lifts, keep the common areas clean, etc, actually sublets it from that company, despite her contract of sale being with Dublin Corporation?

jd

Qualitymark wrote: »

Wait, you mean my cousin, who bought an apartment in Dublin, in a building managed by a management company that's supposed to maintain the lifts, keep the common areas clean, etc, actually sublets it from that company, despite her contract of sale being with Dublin Corporation?

I guess she has a long (900+) year lease. The Owner's Management Company would own the building. They may employ a Management Agency to look after the day to day affairs of the complex. Did you ask your cousin?

Qualitymark

My cousin is not available to ask, being dead now. But she bought the apartment in the same way I bought my house, with a normal contract of sale giving her ownership. The management company, as I understood it, owned a couple of apartments in the block, and was contracted with the flat owners to give them various services such as upkeep; they certainly didn't own the block, afaik.

djimi

It may well be different with council/corporation owned buildings. In general, when someone "buys" an apartment they are taking out a 1000 year lease on it or something to that effect; you dont own the building.

foggy_lad

OP you should raise the issue with your landlord one final time in writing and give them 2 weeks to resolve the issue and then you can raise the issue with the PRTB.

http://public.prtb.ie/disputes.htm

dissed doc

I think this is a pretty clear case of the landlord failing to fulfil his side of the tenancy agreement, as there is no reasonable access to the apartment. It's like renting a place but not having a key to the front door. Fobs, management companies etc., doesn't make a difference.

Tenancy agreement broken. The management co. would not have blocked access unless a lot of arrears have accumulated (at least 1 year).

Qualitymark

djimi wrote: »

It may well be different with council/corporation owned buildings. In general, when someone "buys" an apartment they are taking out a 1000 year lease on it or something to that effect; you dont own the building.

This wasn't bought from the Corporation, but the Corpo was the lender.

But from what's described here, it sounds analogous to ground rent. My house's ground rent (if I hadn't bought it out) would have meant I was renting the ground on which my house stood for something like 1,000 years for a peppercorn rent. I'd be pretty damn fazed if my ground landlord decided to put a lock on my gate because I missed payments on the ground rent!

athtrasna

Qualitymark wrote: »

This wasn't bought from the Corporation, but the Corpo was the lender.

But from what's described here, it sounds analogous to ground rent. My house's ground rent (if I hadn't bought it out) would have meant I was renting the ground on which my house stood for something like 1,000 years for a peppercorn rent. I'd be pretty damn fazed if my ground landlord decided to put a lock on my gate because I missed payments on the ground rent!

In an apartment situation your floor can be a neighbour's ceiling. You share a roof and front and rear walls not to mention foundations, drains etc. It is not possible to own such apartments outright.

mdebets

Paulw wrote: »

Or, the OP should simply contact the landlord every time he wants access to the building. The problem is with the landlord. Plain and simple. The OP should hassle the landlord until the situation is resolved.

Unfortunately, that's not good enough. The landlord can quite easily ignore such calls. After all, he is still getting his rent.
The only way to force the landlord to act (not only for cases like the OP, but also for not doing repairs and similar), is to hit him, where it hurts, by reducing the rent.
Unfortunately, you can't do this legally in Ireland at the moment. But in other countries, that's quit common, sometimes even with court defined tables, that contain standard rates of deductions for standard problems.

Paulw

mdebets wrote: »

Unfortunately, that's not good enough. The landlord can quite easily ignore such calls. After all, he is still getting his rent.

The OP should also lodge a complaint with the PRTB.

mdebets

Paulw wrote: »

The OP should also lodge a complaint with the PRTB.

While I agree that the OP should do this as well, it doesn't solve his short term problem (ie. getting into the apartment without having to wait for someone else to come or go, or to ring the bell on other apartments until someone lets him in), if the landlord just doesn't care and the actual case is heard by the PRTB only months later.
The only way, to get such a landlord to do something, is to threaten him with financial losses. I know it from first hand experience in Germany (where you can legally do it), how fast a landlord can change from 'Yea, I called a plumber, but he can't come earlier than next month, you know how busy they are at the moment, you just have to live with cold water until then.' to 'Sure, the plumber is coming tomorrow morning to fix the hot water' after being threaten with withholding a percentage of the rent money .

jd

Lantus wrote: »

Thats excellant news! any references you can point to?

Interesting court case on this to keep an eye on.
http://www.independent.ie/irish-news/courts/evicted-couple-appeal-apartmentfees-order-29123328.html
and
http://www.irishexaminer.com/archives/2013/0312/world/couple-fight-receiveraposs-appointment-over-rent-225158.html

Lantus

jd wrote: »

Interesting court case on this to keep an eye on.
http://www.independent.ie/irish-news/courts/evicted-couple-appeal-apartmentfees-order-29123328.html
and
http://www.irishexaminer.com/archives/2013/0312/world/couple-fight-receiveraposs-appointment-over-rent-225158.html

cheers, an interesting case and these early cases may well set a precedant. In relation to the OP I wonder why they dont just restrict access to the common areas when the debt is so high.

athtrasna

Lantus wrote: »

cheers, an interesting case and these early cases may well set a precedant. In relation to the OP I wonder why they dont just restrict access to the common areas when the debt is so high.

I would imagine those new developments are largely owned by investors so would not have a very active board of directors?

Our AGM voted last night to restrict access to parking to units who are in excess of 12 months in arrears where no payment plan is in place. It's going to be interesting and we are awaiting legal clarification on a couple of issues but we've gone from 95% payment to just over 50% payment in the last four years so needs must. Insurance, refuse and power bills are only going up. Most people have had enough of subsidising their neighbours.

Carawaystick

If I were the tenant, I'd complain to the prtb that the ll has locked you out, and breached the tenancy
I'd complain to an gardaí that the ll is causing a nuisance, preventing you getting into your own home, and also that the management company is preventing you entering your own home and are harassing you by delaying you each and every time you go home

Paulw

Carawaystick wrote: »

I'd complain to an gardaí that the ll is causing a nuisance, preventing you getting into your own home, and also that the management company is preventing you entering your own home and are harassing you by delaying you each and every time you go home

The gardai won't get involved as it is a civil matter.

athtrasna

Carawaystick wrote: »

the management company is preventing you entering your own home and are harassing you by delaying you each and every time you go home

They are not, they are denying service to the non paying member of the management company ie the landlord. There is no relationship legal or otherwise between the management company and the tenant.

fasttalkerchat

I think there is too much legal wrangling in this case.
Out of interest, if this happened in a normal house would you be within your rights to remove the lock?
Eg. I come home from work and the lock is broken, I wait for an hour for the landlord to come and he gets it open. This happens again several times so I get it replaced.