My OMC refuses to fix damp emanating from a leaky roof, what can I do?

April 2014

Question

I bought my duplex new in 2006, and there is a serious problem with damp in the communal area (shared with one other duplex) emanating from a leak in the roof.

I have been highlighting the issue to the management company for over four years now, and have received conflicting correspondence on what’s been/being done about it — mainly that the construction company (wh ich is on-site and building) have responsibility for fixing it before the communal area is handed over to the management company.

At this stage, nothing has been done, and the damp has extended to the full height of three separate walls, with black mould and mushroom-like fungal growths in many patches outside my door.

In addition to the aesthetic element, I have respiratory trouble and I’m concerned this is a health hazard.

I have paid thousands in management fees (including sinking fund fees) and cannot believe that this problem has yet to be fixed. I’d be grateful for any advice on how I can have it finally dealt with.

Answer

Unfortunately, this is not an uncommon problem. The owner of the common areas has the responsibility to repair the roof until it is transferred to the owners’ management company (OMC).

I draw your attention to section 13 of the Multi-Unit Developments Act 2011 (MUDs Act) where the owner of the common areas must be afforded reasonable notice and opportunity to carry out the repairs.

The OMC should have appropriately recorded the communications to and from the development company so as to prove beyond reasonable doubt that the owner of the common area was made aware of the problem. Should the leak not be resolved by the owner of the common areas, the OMC has the right to undertake the repairs itself and recover the cost from the owner, who is the liable party.

The developments’ common areas should be in the ownership of the OMC as and from the 1st day of October 2011. It would be fair to say that the only way to have this resolved now is to appoint legal representation for the OMC to deal with the issue.

The process is tedious and expensive and will require the board of directors to actively manage the solicitor dealing with the issues to ensure that the action does not stagnate.

The OMC will need to arrange for the financing of legal representation in accordance with section 18 of the MUDs Act. This will inform the members of the OMC of the task at hand as well as appropriately make available the necessary finances.

The OMC may apply to the Circuit Court under section 24 of the MUDs Act to seek a court order to compel the owner of the common areas to fulfil their obligations and repair the roof.

I would strongly recommend that the tender process for legal services includes appropriate reference letters proving their abilities and evidence that they have experience with common area transfers.

The legal representation for the OMC must be a separate entity, independent of that representing the legal interests of the owner of the common areas.

Paul Huberman is a member of th e property and facilities management professional group of the Society of Chartered Surveyors Ireland