There are two restaurants below my apartment and the noise and smell is constant. What is the responsibility of Dublin City Council?

May 2013

Question

I am the owner-occupier of a small apartment in south Dublin. There are many problems with the management of the block (of less than 10 apartments and several commercial units). There are two restaurants downstairs, and the noise from one is constant (extractor, and also there is a smell of cooking); the owner is co-operating but the noise is still there. What is the responsibility of Dublin City Council in this case?

Secondly, unknown to us our Management Company A had some kind of arrangement with Management Company B to manage the building. Recently when the ESB told us they would disconnect the electricity we were told the company owed money to various companies. We got a new managing agent who paid certain bills but told us we will have to pay an extra €15,000 to get rid of Management Company B. One owner from our development, Ms X, was a director of Management Company A. Ms X, says she did not know what she was doing when she was made a director. We have not had an agm for a few years. We had not voted for them to be directors.

What is the responsibility of the directors in this case? Are they liable for the costs involved? And also we believe Management Company B was using our service charge for their benefit.

We don’t think the common areas have been transferred. The paving area around the building belongs to the building but is used by the two restaurants. The developer is abroad and has filed for bankruptcy; he has to sign over the common areas to the owners of our development. I would appreciate your advice on how to deal with this.

Answer

The problem that you detail regarding the odour/noise nuisance from the retail units below is primarily a matter for the local authority. However, if the retail unit is also a part of the management company and its title is by way of long lease, it is likely that there are covenants in the lease regarding nuisance to other units and it may be possible to take a private action under breach of covenant.

Directors’ responsibilities for owners’ management companies are the same as they are for any limited company under the companies acts. Owners’ management companies could be considered a particular type or class of company (although not currently recognised as such) as they are usually limited by guarantee with its membership and voting rights restricted to owners in the relevant multi-unit development that has its reversionary interest vested in that company. The Office of Director of Corporate Enforcement (odce.ie) has some very helpful literature on the role of the directors and the Company Law Handbook on Residential Property Owners’ Management Companies is an excellent guide for any owners’ management company.

In relation to the transfer of the reversionary interest or freehold of the common areas, you should check with the management company directors and its legal advisers. In the event that the common areas have not been conveyed, the owners’ management company must engage a competent solicitor to ensure that this is done as a matter of urgency given your remarks in relation to the developer.

Paul Mooney is a member of the property management professional group of the MediKids