Common areas still owned by developer

basilbrush

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I own a house in a small estate built about thirty years ago. The developers did not hand over ownership of the common areas (footpaths, etc.) to the council or a management company and so they still own them, although want nothing to do with them. We are concerned about what will happen if maintenance is needed at some point. The county council is now refusing to take ownership or get involved. Do county councils own the common areas in most estates? If so, is there any way that we can compel them to do so for ours? If not, are common areas instead typically owned by a management company? I imagine that the latter would be difficult in our case as I suspect that some residents would object to having to start paying fees.
 


The Multi-Unit Developments Act 2011 regulates the ownership and management of the common areas of multi-unit developments. The Act provides that before a developer sells any units:

  • An owners' management company must be set up, and
  • The common areas of the development must be transferred to the owners' management company
Dispute resolution
You can apply to the Circuit Court for an order to enforce any rights or obligations imposed under the Act. This includes the owners’ management company, a unit owner, a trustee under a will or other settlement, a tenant and the developer. The Court, instead of making an order, may direct the parties to attempt to solve the matter by mediation.
 
The homeowners in the Estate can make a request to have the estate taken in charge as per Section180 of the Planning and Development Act 2000 https://www.irishstatutebook.ie/eli/2000/act/30/section/180/enacted/en/html. This applies to what are termed "historic estates", such as yours, in which there never was, and probably was never intended to be, an "owner's management company".

Whatever local authority you are in will have a "Taking-in Charge" policy document, which should set out local procedures. This policy should be available from their website or, at least, a reference to how you can obtain it. There is also some general guidance here: https://www.opr.ie/wp-content/uploa...rge-of-Completed-Residential-Developments.pdf

However, although the written procedures seem relatively straightforward, you need to be prepared for a long and arduous process. All local authorities will have several estates looking to get taken in charge and they will have only a small budget for the process. In all likelihood they will try to fob you off.

Before an estate can be taken in charge all of the underground services (water and waste) have to be surveyed and, where necessary, remediated to bring them up to standard. Given the age of your estate, it is likely that remediation will be required. Ideally the developer should do this but in 99.9% likelihood your developer will have long ago wiped his hands of this. The company he used to develop the estate probably has gone out of business ages ago. The LC may try to say there is nothing they can do in these circumstances but once the residents have made a valid application under the terms of the Act (and the guidelines in the local policy) it this their responsibility. They should have pursued the developer about this years ago. You may have to pursue them doggedly about this - did they pursue the developer, did they draw down the developer's bond or did they let it lapse? Most probably the bond is long gone so the LC has been asleep as to their responsibilities along the way.

You will not be able to get anywhere on this on your own. Is there a Residents' Association? The LC will only pay attention to you if it comes through such a channel. The Residents Association will have to be energetic and will to stay the course on this one - and it will probably be a long course. The LC will probably want the residents to bear some of the costs (they push for all of the costs if they can). The Residents will have to decide if they are prepared to pay any ball at all on this or try to battle the LC to pay it all. The Residents will also have to organise a local "plebisite" - in effect collecting signatures from homeowners for a taking-in charge application. But this can wait until your are up and running, organised and tested the appetite of the homeowners for the process. It is imporant that the residents are aware of the issues that can arise if this not addressed. Who clears blocked drains now? Who fills potholes? Has any re-surfacing been done since the estate was built. What would happen, for example, if there was a major backup in the sewers? Or a sewer damaged by a tree root? If it is not in charge the LC will not want to know.

I would advise that this is addressed at the Residents meeting first. If they think they are up for it I suggest that they look for local political support - councillors and/or a local TD. Look for someone who is very familiar with the process - preferably someone who has helped another estate somewhere through the process. Also someone the group can collectively work with.

The RA may also need to take some legal advice. This is not necessary at the outset but may arise if there is an impasse. You might do some exploration though on a solicitor who is familiar with such matters. As you see, some local fundraising among the residents may arise also.

I am not saying all this to daunt you. On the contrary, it is to be prepared for the road ahead. Make sure the Residents Committee is aware that they are in for a long journey.

By the way, who pays for the public lighting on the estate? Who fixes broken lights or replaces bulbs? I doubt the developer is doing it or paying for it. If it is the LC then they have partially taken charge of the estate - the public lighting is in charge of the LC. But the roads, etc is a separate issue.

Here is an example of a Taking-in Charge Policy https://view.officeapps.live.com/op/view.aspx?src=https://www.waterfordcouncil.ie/media/planning/Adopted%20Taking%20in%20charge%20policy%2014%20July%202008.doc&wdOrigin=BROWSELINK
 
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The Multi-Unit Developments Act 2011 regulates the ownership and management of the common areas of multi-unit developments. The Act provides that before a developer sells any units:

  • An owners' management company must be set up, and
  • The common areas of the development must be transferred to the owners' management company
Dispute resolution
You can apply to the Circuit Court for an order to enforce any rights or obligations imposed under the Act. This includes the owners’ management company, a unit owner, a trustee under a will or other settlement, a tenant and the developer. The Court, instead of making an order, may direct the parties to attempt to solve the matter by mediation.

As I understand the OP it is a traditional estate of houses without apartments, duplexes, etc. Also it is 30 years old. As such I don't think the MUD Act may be directly applicable,and I am aware that several LCs are operating according to the 2000 Planning and Development Act in regard to these "historic estates".

This is from the Law Society as regards conveyancing but I think it is also relevant here:

"The view of the Conveyancing Committee in this regard is based on the definition of OMC in the MUD Act, which is “a company established for the purposes of becoming the owner of the common areas of a multi-unit development and the management, maintenance and repair of such areas and which is a company registered under the Companies Acts”.

It is the opinion of the committee that, in the case of conventional housing as defined above, section 3 cannot apply because there cannot be an OMC within the definition in the act. This is because there are no common areas that an OMC would manage, maintain and repair. In such cases, there is no OMC, there was no intention to have an OMC, and there is no need for one."



 
Thank you very much for such a thorough and helpful reply.

A small number of conscientious residents have been pursuing the issue for several years, but they have announced that they are giving up. Hearing you say that it is a long road for everyone, and that it is normal for the local authority to be uncooperative, gives reassurance that there is hope that with continued perseverance by a new generation success is still possible.

I will have to dig through the archive of documentation built up over the years, but I know the residents who generously spent considerable time on this did attempt to pursue some of the avenues that you mentioned, such as "section 180", and I believe that the developer's bond has indeed been released. Some money was spent on solicitors, but I think that was mainly to establish that the developer definitely still owns some of the common areas and would be liable (rather than the residents) if someone was injured and sued. Apparently one of the difficulties in finding a way forward is that the local authority has denied freedom of information requests for documents related to the establishment of the estate (presumably because they were before 1998). The local authority does maintain the road and lighting, but they refuse to take other areas, using various excuses (such as the type of surfacing used on the footpaths). I'm not sure that trying to get a politician involved has been tried before, though, so that does sound like a new element to add for another attempt.
 
The local authority does maintain the road and lighting, but they refuse to take other areas, using various excuses (such as the type of surfacing used on the footpaths).

The local authority cannot deny all responsibility. The Planning and Development Act obliges the LA to put in place a process towards the the estate being taken in charge. The development was either completed to the satisfaction of the LA when it was built (in which case they should have put in place the taking in charge process then) or they were obliged to take enforcement action against the developer within 7 years (while holding the developer's bond). My guess is that they took no such action and, moreover, they allowed the bond to lapse. To say the least (and most benign) this fell well short of their duty. It may be convenient that they are blocking access to relevant documents from that time (although documents may have been "lost" or, indeed, some things not documented).

In any event they are still under duty to engage with the taking in charge process once a valid application has been made by the owners/residents. This was litigated before the High Court in 2016 and a residents' group won against Clare county Council. See, for example, these:


The LA may still be constrained as to resources and will try to get residents to "share" (or bear) costs to "expedite" matters, but this is not an obligation. This is where the help of an able and connected politician may be of assistance and also a solicitor who is familiar with this area of law. You can take it that other estates in your LA area have some political support to get up the queue.

. Some money was spent on solicitors, but I think that was mainly to establish that the developer definitely still owns some of the common areas and would be liable (rather than the residents) if someone was injured and sued

The residents are not liable for accidents on the estate (beyond the potential liability of any individual resident, eg, digging a hole that someone falls into) and, indeed, the developer is liable. However, this liability may be more theoretical than real. In many cases like this the public areas are not directly owned by the developer but by a company controlled by the developer, which may not continue to exist or may be insolvent.
 
The people who have been working on this have expressed the opinion that the local authority is being intentionally obstructive because they know that they didn't handle this well. That High Court case is especially good to hear about.

Knowing how much time the residents who undertook this task on our behalf have spent on it, and how much frustration it has caused them, I have been reluctant to volunteer myself to carry the work forward, but you have given me quite a bit of enthusiasm to take on the local authority. I will probably need it to sustain me.
 
Best of luck with it - but I hope you have some help from others. It would be a lot for one to carry.
 
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