Common Areas/Building built without consent

John Electrician33

Hello All
I will outline my query/problem as briefly as possible.
A block of apartments adjoining a hotel has common areas to the rear of the premises which both parties can access. The hotel built a restaurant on one of these common areas without consent of the apartment owners. He also built an adjoining wall dividing up the common areas. He obtained planning permission even though he dosent own the grounds

The apartment owners want the structure removed or compensation. The hotel does not have legal title to this area but has assured us if this goes to court he will win - he has experience in this type of problems/disputes and is well financed.

We have gone to solicitors and have threaten we will take legal proceedings however he has seen it all before and probably knows we cant afford a high court case.

Any suggestions that would show him we mean business????

Pat Mustard

John Electrician33 wrote: »

Any suggestions that would show him we mean business????

I don't know whether this development has complied with the Multi Unit Developments Act 2011 (the MUDs Act). Generally speaking, the MUDs Act says that the developer of a residential development is supposed to transfer the common areas to a management company (OMC).

Therefore the management company should own the common areas.

If this has happened and if the new building has taken place on property which is owned by the OMC, then the OMC should take legal advice on the necessary action to be taken, rather than the individual apartment owners.

Professional legal advice should be taken before any action, of course.

Mr. Incognito

Speak to a solicitor- they will need to check out the title.

Carawaystick

Get the planning docs. it will usually have something to say the developer has permission form the landowner to develop the land.

Get documentation to show there is no permission from the landowner and get onto the planning enforcement.
Make complaints about noise,fumes etc to the LA also
Mention in each complaint it was built without consent of the landowner.

Try get served late in the hotel. Object when their drinks license is renewed.

John Electrician33

I am on the management company - we have taken legal advice and he dosent own the title - that dose not stop some people though. Looking for some innovative suggestions

Pat Mustard

Does the management company own the ground on which he built?

John Electrician33

Yes - its common area

Pat Mustard

John Electrician33 wrote: »

Yes - its common area

If the common areas have been transferred to the OMC, then the OMC needs to take advice in relation to issuing proceedings.

If the OMC does not have money for proceedings, then it needs to look into raising it or negotiating with the relevant solicitor.

Carawaystick

You could call the cops and claim the restaurant patrons are trespassing/drinking on ye're property.
I'd have an engineers/surveyors report to show it's ye're land though.

John Electrician33

Thanks Carawaysticks looking for innovative suggestions like that.
No point in replying saying seek legal advise, I know that, as I said this guy knows the law and is well used to these situations, I am looking for specific ideas/suggestions that would show him we are not to be messed with. Anyone else some intelligent advice

Victor

Can you have an alcohol licence for land you don't own?

ScottStorm

Has the management company sought legal advice? You have stated that you don't want any but I wouldn't go taking the advice of the hotelier that you are in a disagreement with.

Roger Hassenforder

What documents are in the planning application re title? Are ye sure the land is yours, and the developer hadn't stiffed ye?

Wouldn't hold much hope over getting sorted through planning enforcement.
AFIK it's not unauthorised per se, although how the authorisation was obtained is in question. It could go around in circles for years in planning enforcement.

What is it ye want? Do ye want it knocked? Do ye want compensation? What is the desirable endgame?

If he really has pulled a stroke and is acting the bollix, he needs to be ruined

nuac

Talk to your solicitor about:

1, An objection to any application to extend the licence into the new area

2. Ask Planning Enforcement to apply to CIrcuit COurt under Section 160 of PDA 2000 to remove any structure built in breach of planning

3. If Planning Authority refuses or delays, anybody else can apply to the court. Need an engineers/architects report. Affidavit to ground application based on such a report, Can be got into court fairly quickly ( 10 days notice ) if urgent.

One important difference is that a LA does not have to give an undertaking as to damages e.g if the court on the LA application closes a business, if it is established in later proceeding that that order was wrongly granted,

A private citizen may be ordered to give such an undertaking

4 Judges do not like the conduct you describe. Court will put manners on him.

5 Unless you are experienced in this area, you do need a solicitor

nuac

Carawaystick wrote: »

You could call the cops and claim the restaurant patrons are trespassing/drinking on ye're property.
I'd have an engineers/surveyors report to show it's ye're land though.

Even if such trespass can be proved, it is a civil wrong rather than a crime.
AGS have no function

Roger Hassenforder

nuac wrote: »

Talk to your solicitor about:


2. Ask Planning Enforcement to apply to CIrcuit COurt under Section 160 of PDA 2000 to remove any structure built in breach of planning

until title is established, cant see then touching it.
as far as they're concerned, until proven otherwise, its not unauthorized.

Carawaystick

nuac wrote: »

Even if such trespass can be proved, it is a civil wrong rather than a crime.
AGS have no function

So if strangers started drinking in your front garden, the gards would do nothing? :eek:

nuac

Roger Hassenforder wrote: »

until title is established, cant see then touching it.
as far as they're concerned, until proven otherwise, its not unauthorized.

My experience is that most planning authorities seek some evidence of title even it is just written confirmation from the applicant's solicitor that applicant has title, or consent from the legal owner.

The same planning authority would have authorised the apartments including the common areas, which would put them on notice of a possible conflict, especially in view of MUDA 2011.

Also if this developer has an application to extend the intox liquor act licence pending the title issue will become very relevant.

Judges are not amused by the conduct you describe.

nuac

Carawaystick wrote: »

So if strangers started drinking in your front garden, the gards would do nothing? :eek:

Civil matter, imho

Roger Hassenforder

nuac wrote: »

My experience is that most planning authorities seek some evidence of title even it is just written confirmation from the applicant's solicitor that applicant has title, or consent from the legal owner.

The same planning authority would have authorised the apartments including the common areas, which would put them on notice of a possible conflict, especially in view of MUDA 2011.

Also if this developer has an application to extend the intox liquor act licence pending the title issue will become very relevant.

Judges are not amused by the conduct you describe.

He has already satisfied the planning authority he has proper title. How, we don't know.
This needs to be undone.
In the planning authority's view this development is not unauthorised. It might have been fraudulently obtained, but this needs to be established.

I think you're overestimating the level of detail PAs look into re title!

John Electrician33

Thanks for all replies.

How do we establish if it was fraudulently obtained - can we obtain a full set of documents from planning authority?
Is it possible to be granted planning permission on common areas?

Roger Hassenforder

John Electrician33 wrote: »

Thanks for all replies.

How do we establish if it was fraudulently obtained - can we obtain a full set of documents from planning authority?
Is it possible to be granted planning permission on common areas?

the planning file (application documents will be publicly available, might even be online. (deliberations might not be as easy to obtain, but can be got).
There's be a section on ownership, where the applicant has to satisfy the PA who owns the land or something that the applicant has permission from the owner.

there's a bit of a whiff that the developer prior to transferring the common areas to the management company, might have stiffed you?

you need a solicitor, not the Planning Dept of the council, once you get sight of what was submitted.