OMC and Freehold

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.

Dav010

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.

Dav010

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.

Dav010

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!

Dav010

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

Dav010

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.

Dav010

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.

markpb

https://www.boards.ie/discussion/comment/118690077#Comment_118690077

I understand what you're saying but think of the implications of it. An Act that could *retrospectively* enjoin you to a company and contractually (MUD Act says all fees are due as contract-simple affairs.) force you to pay fees to that company. A law which would force you to obey the adopted house rules of that company when you're in your home. Do you think that would have been constitutional and passed into law without being challenged?

Dav010

https://www.boards.ie/discussion/comment/118690586#Comment_118690586

It has been passed into law, it is the MUD Act.

Does the MUD Act exempt mud unit owners who bought prior to 2011? If it does, please link to it. The MUD Act does however say 2(5) that it applies to every multi unit development.

As I linked to earlier, prior to 2011 develops were required to set up OMCs and unit owners were contractually obligated by the terms/covenants of what they agreed when buying. The MUD Act gave OMCs and owners obligations legal clarity, it is no longer a choice, Unit owners can attend AGMs and object to any issues with which they are unhappy. You are automatically a member of the OMC by virtue of owning a unit in a multi unit development, it isn’t something you apply for, agree to, or opt out of.

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

I get that some think that just because they bought before 2011, they are not bound by the OMC as it changed what used to be a contractual obligation to a legal one in relation to SCs. Believe me, every OMC has heard nearly every excuse from unit owners as to why they shouldn’t have to pay SCs though I have to admit, “my house is not part of the mud” is a new one, it should be pretty obvious to anyone who lives in one whether the unit is or isn’t part of the development.

So look, I have pointed to the relevant section of the MUD Act to support my viewpoint, including that it applies to both leasehold, and freehold properties (see definition of “unit owner” in the Act). If you can show me where a unit owner in a mud are exempt from being a member of the OMC/paying SCs because you didn’t sign up to them when buying, I’ll hold my hand up.

Over to you and Clawhammer.

Claw Hammer

Whether the MUD act applies has nothing to do with whether the development was pre 2011 or not.

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

(a) as respects such units it is intended that amenities, facilities and services are to be shared, and

(b) subject to section 2 (1), the development contains not less than 5 residential units;

For part (a) to apply it has to be shown that there is an intention to share services. This will be shown by a covenant, whether or not freehold or leasehold which gives title to the purchaser. The covenants will set out the obligations of both the OMC and the Unit owner. All the MuD ACT did was regulate this arrangement.

Liability to service charges is a matter of covenant/contract not geography.

Dav010

https://www.boards.ie/discussion/comment/118703477#Comment_118703477

Would ya give up this daft ****.

Liability for SC depends on whether the unit owner is part of a multi unit development with shared facilities, amenities and services, not what was in the purchase contract. Are you saying the unit owner does not intend to use the shared sewage, water, electricity services, common areas unless they sign an agreement that they intend to? What rubbish.

Where in the MUD Act does it say unit owners are exempt from obligations if it wasn’t agreed in purchase contract? The CCPC link I posted clearly and unambiguously states: “When you buy a property in a multi-unit development, you legally become a member of the OMC. This happens automatically and means that you have legal rights and obligations”

As usual you are bluffing.

Claw Hammer

Where in the MUD act say that a person is loiable for se4rvice charges if it wasn't part of the purchase deed?

Liability for charges is a charge on the unit owners interest in the land. It is going to be clear from the purchase documents that the purchaser is buying an interest in land with a burden on it. It will be a conditionj that the purchaser becomes a member of the OMC and that they OMC provides services and the Unit Owner pays them.

When OMCs sue for service charges and it is denied by the Unit owner they are liable the OMC has to produce the deeds showing that there is a liability on the unit for service charges.

The MUD act did not bring unit owners who did not agree shared services from the outset, into an a liability for service charges where none previously existed. In apartment blocks it was automatic that the leases would provide for service charges since there had to bve an OMC to obtain a block policy for insurance. In the case of houses developed on lands adjacent to an apartment block the situation is less clear cut. There may have been no intention to share services with the apartment owners at all.

“When you buy a property in a multi-unit development, you legally become a member of the OMC. This happens automatically and means that you have legal rights and obligations”

What happens is you sign a contract agreeing to become a member of the management company and a deed making your unit liable for service charges. You are taking a statement addressed to members of the public and trying to derive a legal principle from it.

As usual, you are bluffing.

Dav010

https://www.boards.ie/discussion/comment/118704245#Comment_118704245

Jesus wept. It says if you are a unit owner in a mud, you are obligated to pay SCs, and the MUD Act applies to all multi unit developments. It says nothing about the contract of sale. They are there by virtue of owning the unit, this is clearly laid out in simple English on the CCPC page I linked.

Can you see anything in the MUD Act exempting a unit owner in a MUD from SCs based on contract of purchase? If you can, link it, or stop doing what you usually do, post **** you can’t support.

kippy

https://www.boards.ie/discussion/2058233849/omc-and-freehold

If you never plan on selling or remortgaging your property there's absolutely no issues with your actions. If you do then you will need to bring your argument through the courts, at significant expense I would think.

It's probably worth your while asking and getting legal advise at this point as it appears you have a significant bill hanging over you.

In relation to some of the points raised earlier on the MUD act I can say that I have seen them in practice. Owned a house in a 20 house development (no apartments) built in circa 2004. A management company was in place since the houses were built. All owners paid the same fee. Some tightening up of financials and company structure happened circa 2011 after the mud act alright.

Sold the house a few years ago and the management agents required about four hundred quid to provide the accounts and answer the queries raised by the purchasers solicitor at the time.

DFB-D

https://www.boards.ie/discussion/comment/118704281#Comment_118704281

Not to start an argument here but I think you are oversimplying what a MUD is. There are complexities you have not considered.

Certainly if you are a unit owner in a MUD, it is most common that you will be liable for service fees, but you cannot make blanket statements that any unit built in a development including free holdings are liable for service charges.

The OP has confirmed that they have freehold and not liable to service charges, which is not common in a MUD, which leads to the assumption that the particular road the OP lives on, may be bonded with the council to be later taken in charge or that has already happened. I have seen examples of the council taking over some roads but not all in a development, leaving some properties in a OMC and some not.

Hope this helps.

Dav010

https://www.boards.ie/discussion/comment/118706168#Comment_118706168

<Edit> Op, just pay the money and get some legal advice.

Claw Hammer

https://www.boards.ie/discussion/comment/118704281#Comment_118704281

The mud act defines a multi unit development in the Interpretation section, which I have quoted and which you obviously haven't read.

Here is the link

https://www.irishstatutebook.ie/eli/2011/act/2/enacted/en/html?q=multi-unit

There has to be an intention to share facilities before a MUD situation arises.

The evidence of intention is found in the deeds.

It is very simple for most people to understand.

You are going backways by finding a MUD where none was agreed to.