My apartment should have 242 units but three rooms were combined so now there is 244. How is the payment of service charges affected?

March 2014

Question

Our apartment complex is supposed to have 244 units but I notice from the list of owners that three one-bed apartments have been combined into one so now there are 242 units. What is the position vis-a-vis planning and the payment of service charges for the newly formed larger apartment?

Answer

Many planning applications are now available for inspection online at gov.ie . Not all documents are available online yet so you may need to visit the respective local authority to view them. The planning applications will inform you as to what permission was granted for the development. Residential developments on the ground can alter from the initial design for various reasons and this is not uncommon. Consequently, leases are not always amended to reflect this as built properties and developments can find themselves underfunded or are over-charging if members are invoiced as per their lease agreement.

The service charge calculation method will be noted in the lease agreement binding the owner of the property to the owners’ management company (OMC). The manner of service charge calculation varies from lease to lease.

Some OMCs will be unaffected in its ability to charge a service charge if a change is made to the type or amount of properties that make up the development after the lease is made. In most cases the OMC will be greatly affected in its ability to invoice the correct service charge if the lease is not correctly amended. The method of amending the lease agreement to allow the OMC to correctly invoice the appropriate service charge would be to arrange for a deed of rectification.

My primary concern is if the building is in compliance with its fire certificate and if the changes to the properties resulted in any interference with the buildings structural integrity and services.

It is plausible that the developer or the owner made the changes to the properties correctly and your lease was not amended thereafter. I would hope that the alterations were done correctly and in accordance with the building regulations and planning and a comprehensive lease agreement appropriately cognisant of the built properties will be forthcoming to all the members of the OMC.

The OMC may be aware of your recent observations and have the appropriate documentation on file, however, I would recommend that you investigate this anomaly promptly with the board of directors and their appointed property service provider.

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