OMC and Freehold

Clipcloppp

I own a property bought in 2006, in fact, I was the first buyer in the development. It is a freehold property and not one of the apartments. I have explained to the OMC that I never signed up or that it was in my deeds when I bought the property but they are continuing to send me an invoice plus arrears. They are requesting for my solicitor to send something to them. Which will cost me. My point is I know I am not in the OMC and never was never signed anything saw anything to say I was. Shouldn't they have to prove I am? Also, i just checked landirect,ie and my property is freehold. Would this be proof? I just don't want to pay for a solicitor cause someone said so. I don't want to get **** but find it really unprofessional of them.

Caranica

It's not just apartments that are subject to fees in a managed development. We have freehold houses too and they are liable for fees. You need to talk to your solicitor

Mrs OBumble

Has the estate been taken in charge by the council?

Op, you need to read up on the MUD Act, specifically what constitutes a multi unit development, and the legal requirement for unit owners to pay fees (Section 18(10)).

The OMC is as the name suggests, made up of the owners of units in the development, if you own a unit, you are a member irrespective of whether your property is freehold. You still share use of amenities, facilities, services etc with other units in the development. Legal advice would be money well spent, the OMC will have the option to attach a lien to the property mortgage if you have one, which would mean you cannot sell it without paying what you owe.

maestroamado

https://www.irishstatutebook.ie/eli/2011/act/2/section/1/enacted/en/html

The time you bought may be a factor... send them an email with this link...

https://www.boards.ie/discussion/comment/118662088#Comment_118662088

The 2011 Act applies to both new developments built after its enactment, and pre existing developments built before it.

The link you provided does provide the answer though to one of the op’s contentions, that as he/she owns the freehold, he/she is not a member of the OMC. The Act defines “unit owner” as follows:

“unit owner” means a person other than the owners’ management company who holds the highest freehold or leasehold estate or interest in respect of a unit in a multi-unit development.

maestroamado

https://www.boards.ie/discussion/comment/118662114#Comment_118662114

Is this stated in the act..

https://www.boards.ie/discussion/comment/118662134#Comment_118662134

Section 2(5).

“(5) Except where otherwise provided, this Act applies to every multi-unit development.”

https://www.irishstatutebook.ie/eli/2011/act/2/section/2/enacted/en/html

maestroamado

https://www.boards.ie/discussion/comment/118662186#Comment_118662186

I am aware of that as this has always been the cast for shared commercial roofs...

My question is how can an OMC take charge of a property that was bought before this law was passed...

https://www.boards.ie/discussion/comment/118662211#Comment_118662211

Using the MUD Act presumably.

Claw Hammer

There have to be covenants by the o/p for service charges to apply. The MUD act didn't bring units into the purvey of an OMC who were not bond by covenant to pay service charges. If the OMC are trying to levy charges on the O/p they should have a copy of the title deeds and the clauses which make the o/p a member of the company and oblige him to contribute to the maintenance of the development.

https://www.boards.ie/discussion/comment/118663861#Comment_118663861

Why would the contract of sale influence whether a unit is part of a multi unit development for the purposes of the MUD Act?

The terms of the purchase contract may have bound the unit owner contractually to the OMC prior to the MUD Act being enacted, but once enacted, the MUD Act gave legislative clarity to the obligations of unit owners in relation to OMC charges.

maestroamado

https://www.boards.ie/discussion/comment/118663918#Comment_118663918

I agree so it is attached to the deed... if its not i think op ok... i have always thought management fees on freehold properties wrong...

These are not commercial units with shared roofs... these are freehold houses... i wonder if this is part of planning but i expect not...

For me the MUD/OMC were neceessary for apartment development as too complicated to have Commercial development for apartments where no actual turnover... it seems to me developers/property management companies included houses if there were apartments as part of development...

OP are there apartments as part of your development...

https://www.boards.ie/discussion/comment/118664107#Comment_118664107

Freehold properties in the same development still use same amenities, services and facilities as all other units in the development, so whether the unit is freehold or leasehold matters not a jot, the unit is still part of a multi unit development and the MUD Act clearly reflects this. The Act also applies to all MUDs in relation to fees, there is no exemption for pre-2011 builds in relation to those fees listed in the Act that I can see, it just states the Act applies to all except those exempted. There is some leeway in the Act that allows the sale of a property built pre 2011 in which common areas have not transferred to the OMC, but the obligation to transfer those areas remains and must be done so as quickly as possible.

maestroamado

https://www.boards.ie/discussion/comment/118664159#Comment_118664159

So i think you are confirming what i think in a housing only development there are not OMCs in place...

I do not agree freehold properties should be obliged to be part of an OMC but there should be an obligation for residents to look after areas not under the charge of the council...

I have a friend who was secretary of an OMC and we had a few discussions about it...

silver2020

In a mixed development charges are apportioned depending on the type of property.

For apartments there will be internal and external maintenance fees including sinking fund for major works.

For the freehold houses it's a smaller fee. Any I've seen are usually about 35% - 40% of the apartment fee.

This covers the common areas - pathways, roads, lighting, open space and very importantly, public liability insurance for the common areas.

You won't be able to sell the house until fees are paid, so they will continue accruing until paid

I bought a small investment property 2 years ago. Similar situation in that the person said no fees due as it was a house. He was rather pissed off when over €9,000 had to be paid to the management company for the sale to proceed ( he had already signed the contracts, so could not back out)

So the chances are these charges are correct.

However, a phone call to the solicitor you used to buy it will give you the correct answer as it is possible that if you purchased in 2006 there may be different rules.

maestroamado

https://www.boards.ie/discussion/comment/118664268#Comment_118664268

Well the OP said they bought the first property a few years before the OMC became law... it is likely that there are plans of the whole development on the original plans which the solicitor will have to confirm what they were buying into...

The solicitor has being already paid for this transaction so i expect a phone call will confirm...

Mrs OBumble

https://www.boards.ie/discussion/comment/118664268#Comment_118664268

Surely though it depends on whether the house is actually legally part of the multi unit development. It may have been built stand alone before a development was even contemplated for the site.

Caranica

https://www.boards.ie/discussion/comment/118664268#Comment_118664268

Charges are not necessarily apportioned based on unit types. In our development it's on unit sizes so a 3 bed house pays the same as a 3 bed apartment. No it's not fair but it's next to impossible to change, we've taken legal advice.

The OP needs legal advice based on all available paperwork, his, planning permission, OMC articles of association etc. Everything on here is conjecture as none of us know what's in that documentation.

https://www.boards.ie/discussion/comment/118664329#Comment_118664329

Exactly. The MUD Act outlines what a mud is, and that it applies to all muds, irrespective of whether it existed before the Act was enacted. If the op’s unit is not in a mud, then the Act does not apply, but an OMC would have a list of the units, it would be easily be checked by looking up the planning and seeing if the op’s house was included in the development. In reality, it’s pretty obvious if your property is part of a development.

https://www.boards.ie/discussion/comment/118664197#Comment_118664197

Houses are residential units, the Act is not restricted to apartments, it can be a stand alone building comprising a “unit” (house) or building with multiple “units” (apartments)

“multi-unit development” means a development being land on which there stands erected a building or buildings comprising a unit or units and that—“

No doubt your friend pointed out the relevant term in the Act that I quoted earlier related to both leasehold and freehold.

maestroamado

https://www.boards.ie/discussion/comment/118664690#Comment_118664690

My friend changed his mind after talking to me about it... he has since sold the house. This is a development which had shops/offices at the front and houses semis at field behind... My view then and now is that freehold properties should be excluded from the management company's and he agreed with me but only after a time...

I still want to know if this development was houses only would there be a requirement to have a management company to cut grass etc... you mentioned the word presumably in a post which suggests the whole thing a bit vague...

Caranica

https://www.boards.ie/discussion/comment/118664197#Comment_118664197

You are wrong and what you think here is irrelevant. There are hundreds of house only estates with management companies.

https://www.boards.ie/discussion/comment/118664737#Comment_118664737

I have also provided you with direct quotes from the MUD Act which contradicts your viewpoint. I edited my recent reply to you to include another quote from the Act which outlines that single buildings/units are also part of muds.

On the issue of freeholds, the “presumably” does not apply, the Act clearly states both leasehold and freehold units are included, there is no vagueness in that.

A house may standalone, but if it is in a mud, it shares amenities, services and facilities with the other units, you can’t separate those out from your property just because you own the plot on which the house stands.

maestroamado

https://www.boards.ie/discussion/comment/118664766#Comment_118664766

That's not the question i asked... The question i asked if a developer decided to build a number of houses in a field and had the planning.

Does the current legislation require the said development to have an OMC... i am of the opinion it does not until someone shows me absolute proof it does...

I am talking of a development that does not have any leaseholds...

https://www.boards.ie/discussion/comment/118664837#Comment_118664837

I’m not sure that I can make it any clearer than it is made in the MUD Act 2011. In it, it is clearly stated what constitutes a multi-unit development and that it applies to both leaseholds and freeholds as well as single buildings/units buildings with multiple units.

Maybe before you post again, you might read the Act, or at least look back on the direct quotes from it that I have posted in relation to your question.

maestroamado

https://www.boards.ie/discussion/comment/118664865#Comment_118664865

There is no clarity in the act to say if a group of houses and you cannot quote with clarity whare it confirms if semi-detached houses only in a development are required to have an OMC... I say they they do not... thats the end of it unless you can confirm something else...

maestroamado

Caranica

https://www.boards.ie/discussion/comment/118664897#Comment_118664897

Required is not the issue. Pretty much every housing development from the early noughties to the recession was set up with a management company. It was the only way the councils were granting planning permission. And so management companies (later renamed owner management companies) were set up for developments that only consisted of houses.

maestroamado

https://www.boards.ie/discussion/comment/118664941#Comment_118664941

I have seen several grants of planning and never seen this clause in a house-only development... it may be you can confirm where you seen this...

What i seen is developer maintains all common areas until last house sold... i did not see a requirement to have management company but i may be wrong...

https://www.boards.ie/discussion/comment/118664897#Comment_118664897

Ok, I can see you are just not going to accept anything I say. Fair enough. The answers to all your questions are found in the first two sections of the Act, 1. Interpretation and 2. Application of the Act.

I’m afraid if you can’t understand it, or believe the Act to be wrong, and that you are right, I don’t think myself or anyone else can help you. I would suggest you pay particular attention to the definition of what a “multi-unit development” is, what a “unit owner” is in Section 1, and (5) in Section 2.

https://www.irishstatutebook.ie/eli/2011/act/2/enacted/en/print

In relation to the requirement for an OMC, perhaps a quote from another source may add clarity and confirmation.

“Since the Multi-Unit Developments Act 2011, all new developments must have an OMC in place before the first unit is sold. In the case of developments completed before the Act, developers are legally obliged to establish an OMC.”

https://www.ccpc.ie/consumers/housing/apartments-and-duplexes/owners-management-companies/

Caranica

https://www.boards.ie/discussion/comment/118664950#Comment_118664950

My siblings bought off the plans in such developments. I remember when they were house hunting in Dublin and Kildare and they found every new development had management companies.

markpb

The MUD Act is a wonderful piece of legislation but it’s irrelevant to this conversation. Whether they own a house or an apartment is also irrelevant. Either the OP signed an agreement to be part of the OMC and pay a service charge each year or they did not. The OMC should also have a copy of any signed agreement but not all OMCs were properly established in the Celtic Tiger years so those documents may not be available.

If they did not sign an agreement with the OMC, I don’t think any part of the MUD Act can force them to. There are provisions in the act for remedying some situations by order of the High Court but that would be pretty extreme.

Their solicitor is the best person to confirm this. Ignoring debit collection efforts isn’t overly wise. While it’s true that it is up to the OMC to prove the debt is due, that is done in court which means the OP will have to pay their solicitor for representation in that case. So the money may have to be paid in either case.

https://www.boards.ie/discussion/comment/118665046#Comment_118665046

This is incorrect.

Firstly the MUD legislation trumps any contractual agreement the buyer has with the developer/OMC in relation to service charges.

Secondly, Section 18 (10) clearly outlines the obligation on unit owners to pay service charges levied by the OMC.

silver2020

https://www.boards.ie/discussion/comment/118664950#Comment_118664950

I had a property from 2012-2016 in Kerry.

It was a small development of detached houses

It had to have an omc for the common areas.

I was a director.

The fee we charged was €600 per year to cover general maintenance, insurance and a contingency fund for things like potholes, light repair, line painting.

Op simply needs to check with his solicitor as no-one knows the exact situation the op is in.

maestroamado

https://www.boards.ie/discussion/comment/118664971#Comment_118664971

Thanks for that i will have a good look later but at a glance i think that the developments that i thought stand-alone houses were exempt from this except where there were shops/apartments were part of same development...

It has no personal effect on me but because i was always of the same opinion as the OP i kept at it until it was confirmed that my thinking appears to be incorrect on this one...

Reagrds...

silver2020

https://www.boards.ie/discussion/comment/118664377#Comment_118664377

If they are own door apartments, I'd see why, but apartments with common areas and building insurance should have a much higher charge.

House owners should also be represented on the directors and that is where change can be made

markpb

https://www.boards.ie/discussion/comment/118665277#Comment_118665277

Directors are not free to change the service charge calculation. It’s usually written into the lease agreements and, under normal circumstances, would require 100% owners agreement and massive cost to change that.

Caranica

https://www.boards.ie/discussion/comment/118665277#Comment_118665277

https://www.boards.ie/discussion/comment/118665863#Comment_118665863

Mark is 100% right here, this is why we're stuck with the situation where fees are based on unit size only. Best example is 2 beds. We have 2 bed houses, 2 bed own door apartments, 2 bed apartments that share a common area with only one other apartment and 2 bed apartments in a block of 10 apartments. All pay the same service charge. It's not fair but nobody is going to agree to shoulder more of the budget so we'll never be able to change it.

Anyway that's all off topic but goes to correct the assertion that fees are always based on services received and houses pay less than apartments. Not always.

Clipcloppp

https://www.boards.ie/discussion/comment/118663861#Comment_118663861

Thanks, I want to respond to the OMC so I can close it out. and thank you I never realised they may have a copy of my title deeds. My argument in general is - I was the first buyer in the development and my sister the second, she got hers checked last year and the solicitor confirmed she wasn't in the OMC. I know I wasn't either in fact for a few years there were no invoices for service, they just started sending them out a few years later for some reason. The OMC who was the joint developer at the time sold it to another company that took up the OMC side of things. It seems they are just hazarding a guess that the houses are in the OMC based on no paperwork. Yes, of course, I can get a solicitor to check for me but the legal fees are my concern for now. If I was selling I would do it straight away. But if I do now it comes out of my pocket to sort their situation out.

Clipcloppp

https://www.boards.ie/discussion/comment/118665277#Comment_118665277

https://www.boards.ie/discussion/comment/118665277#Comment_118665277

I agree, and if you saw my house in comparison to the rest you would see a big difference. I powerhose mine every few years. The rest are fairly grim. I don't live there but I painted the exterior last year myself due to costs. I was happy to contribute money for the grass etc but apparently, they don't want that. I also contact the council on various items around the park. It's a sloppy OMC and maybe I should pay into it but I will not be paying arrears once it is determined that I am not in the OMC.

Unfortunately, as always happens on boards, the op latches onto the posts that support what he wants to hear, irrespective of whether they are correct.

Op, I’m going to make this as simple as possible for you. If your property is in a multi-unit development, (you can check for free by going to the planning office) you are legally a member of the OMC whether you, or your solicitor thinks otherwise, and legally obligated to pay service charges. In all probability the OMC wasn’t well organised when the developer was in charge, but if there is now a Board of Directors, they are organised. Prior to the 2011, paying SCs was a contractual obligation, so the purchase contract had an important bearing on payment, since 2011 it is a legal obligation as per 18(10) of the MUD Act. What Claw Hammer posted earlier about the MUD not bringing previously contracted owners into the OMC is incorrect, the MUD Act gave a legal definition of what both a multiunit development is, and what a unit owner is, it outlines the legislative basis for the unit to be included in a mud, and the obligation of members to pay SCs. The legislation trumps any contractual agreement and a unit cannot be "outside" a development just because the covenants in the contract of sale says it is, the house is either in a planned development or it isn't.

You can bury your head in the sand, but let me be clear, if you sell, a buyers solicitor will look for a letter of standing from the OMC, without that letter the sale will not proceed if there is a mortgage involved or unless the new buyer is willing to take responsibility for all charges owed (never happen). So when people offer you advice on the internet, they do so without knowing all the facts, you are going to have to confirm whether legally you are in a mud, or not. And unless you are thick, you will know that by standing at your front door and looking around where your house is. Freehold ownership, as I pointed out to another poster a number of times, is referred to in the Act and does NOT exclude you from the OMC.

Honestly op, you need to see a solicitor, having served on the Board of Directors of an OMC, I can assure you that there are always those who think the charges don’t apply to them, those who refuse to pay etc. I can also assure you that sellers are frustrated when they cannot get that letter from the OMC until every cent of the SC is paid. It is not coming out of your pocket to sort their situation out, they no doubt have a copy of the planning, you are paying to sort YOUR situation out, they will keep totting up your SCs owed. I should add, it wasn’t unusual for us to get letters from solicitors representing errant members in relation to SCs, surprisingly their interpretation of the MUD Act wasn’t always correct, our solicitor had to point out where they erred, and that was always the end of it, they had to pay up their SCs.

So rather than asking on boards, go to the planning office, you refer in your own posts to “development” and “developer”, if your house is part of planning for a mud of more than 5 units, then you are part of the mud/OMC whether you like it or not.

Claw Hammer

https://www.boards.ie/discussion/comment/118676649#Comment_118676649

It is nonsense to suggest that the MUD brought people who were not previously in an OMC into one. All the act did was regulate existing OMC arrangements. I saw a solicitor trying that on in court and it didn't last very long as an argument.

Clipcloppp

https://www.boards.ie/discussion/comment/118685442#Comment_118685442

Thanks, Claw Hammer, I have emailed my Solicitor and she, in turn, has emailed the OMC and established from my deeds that I was never in the OMC and that they were incorrect, the house is not part of the OMC and the house never was, like my neighbour who did the same. I hope it ends there.

https://www.boards.ie/discussion/comment/118685442#Comment_118685442

MUD Act did not bring people who are not living in a multi unit development and not part of an OMC into one, I agree with you on that.

Are you saying that even though a property owner owns a unit in a multi unit development, and therefore must be a member of the OMC can be excluded from MUD legislation based a document which forms part of the purchase? That would ne an interesting perspective, what was in deeds/title didn’t matter a few years back when Dublin CoCo redrew area boundary maps, some homeowners found that the areas lived in changed overnight.

The op did not want to pay for legal advice, now it appears he has got it in record time, and it has been confirmed his property is not part of a multi unit development, if that is the case, no SCs due. If the OMC has proof to the contrary, the dispute goes on and there will be only one winner if the op needs documents from the OMC in order to sell.

You seem to see a lot of things in court, yet seem to get slapped down fairly regularly in the LD forum. Do you hang around courts for the craic?

Clipcloppp

https://www.boards.ie/discussion/comment/118687213#Comment_118687213

I have the documents, i.e. the deeds, mentioned in the post.

This Is my second time dealing with a legal issue in the last year, I paid for a solicitor the first time, and it was expensive, but I did most of the leg work myself as I couldn't afford it after a tenant refused to pay the rent because he could. I won. So now I check out various avenues like this and find most people helpful and pleasant. I digress. But at least I believe l am not a hostile poster and not passive aggressive.

And I am female (with balls)

Thanks to the rest of you who have helped!

https://www.boards.ie/discussion/comment/118687438#Comment_118687438

So your solicitor has confirmed your house is not part of a multi unit development?

Clipcloppp

https://www.boards.ie/discussion/comment/118687468#Comment_118687468

Yes

https://www.boards.ie/discussion/comment/118687523#Comment_118687523

If you are not part of a multi unit development, being free hold made no difference and why did you reference buying in a “development” and that yours and your sisters houses were built by a “developer” who set up an OMC?

Did your legwork show that your house is not included in the plans of the “development”?

My apologies about the gender I used, typing he/she/they seems a bit pointless.

Claw Hammer

https://www.boards.ie/discussion/comment/118687213#Comment_118687213

To be in a Multi Unit development a buyer must have covenanted to join the OMC and toi pay service charges. If they didn't they are not part of an OMC and the MUD ACT did not bri8ng them into it.

https://www.boards.ie/discussion/comment/118689976#Comment_118689976

To be in a multi unit development the property must be located in a multi unit development as defined by the MUD Act. Does the MUD Act say those who haven’t covenanted to join an OMC are somehow exempted from membership and from the obligation to SCs? Which section is that in?

What the MUD Act does clearly define is what a unit owner is, what a multi unit development is, and the obligation of unit owners to pay SCs.

So, could you please provide a link to support your view that covenants contained in a purchase contract can exempt a buyer from the legislative requirements contained in the MUD Act.