Ask our experts for advice on your property problems
Does everyone really have the power of veto in our apartment block?
Q
We are a small seven-apartment complex. We have been informed by the builder's solicitor that each and every householder has a power of veto over any decision concerning the common areas, for example if we wanted the outside windows painted, one member could object and the work could not proceed. The builder has transferred the property over to the management company.
This seems a little strange to me. Perhaps you could advise me of the legality of this stupid rule. Six out of the seven residents want to change it but the seventh is using his veto to stop any change.
A The Owners Management Company (OMC) estate documentation; Articles of Association, Head Lease etc is compiled at the discretion and direction of the builder/developer and his or her legal team at the outset of construction. The owners generally have limited scope to alter, correct or create new rights or arrangements when control of the OMC is passed to them.
As these documents are legal contracts, the first thing you should do is have your solicitor review them to verify the existence and implications of the “veto clause”.
The OMC is the vehicle by which owners have control over the common areas and through which they manage the estate collectively.
The existence of any one owner’s power to veto the reasonable decisions of the majority means that in the case of your OMC it may not always operate in the best interests of good estate management.
If the option to veto exists but is contained in the Articles of Association of the OMC rather than in the lease documentation, this can be amended at a general meeting of the owners by a special resolution. Such an amendment requires approval by 75 per cent of owners present or by proxy.
Alternatively, if the option to veto exists within the Head Lease you can, under the Multi-Unit Developments (MUD) Act 2011, make an application to the Circuit Court seeking an order for an amendment to the Lease. The MUD Act essentially provides a new framework for dealing with the resolution of disputes such as might occur in your case if one owner exercised the power to veto the decision of the majority to, for example, carry out essential maintenance.
The Act also strongly advocates the use of mediation in the first instance and the Court may direct the parties to engage in mediation as an alternative dispute-resolution procedure. This remedy may be useful to you, particularly in terms of time and cost.
Siobhan O'Dwyer is a Chartered Surveyor and chair of the Property Facilities Management Professional Group of the Society of Chartered Surveyors Ireland scsi.ie
Household charge applies to non-Irish too
Q Are non-Irish citizens living abroad liable for NPPR and Household Charges on holiday homes they own in Ireland?
A The charge applies, as the Act does not exclude holiday homes in the definition provided for residential property which is not the sole or main residence of the owner, regardless of whether the owner is or is not resident in the State. Residential property is defined in Section 2 of this Act. Some exemptions and waivers to the charge are provided for but none relate to holiday homes, with the possible exception that if the buildings are classified as mobile homes or caravans, they would be deemed exempt. The current charge is €200 per annum per residence. Readers might like to check the Act, Section 4 (1 – 6) to identify possible exemptions.
Household Charges – Local Government (Household Charge) Act 2011
The €100 per annum charge applies to the vast majority of residential properties in this country as defined in Section 2 of this Act. Some exemptions and waivers are again provided for in Section 4, but none pertain to holiday homes unless the owner is capable of demonstrating that the subject is a building that is not permanently attached to the ground – a vessel or a vehicle (whether mobile or not). As with all statutory provisions, the devil is in the detail and, accordingly, readers should seek professional advice on a case-by-case basis.
John Kerr is a Chartered Surveyor and member of the Society of Chartered Surveyors Ireland scsi.ie
No getting away from the NPPR tax
Q A friend of mine emigrated, for work reasons, about 18 months ago and has rented out his house while away. Being reasonably law-abiding, he registered with the PRTB and has already paid the €100 property tax for 2012.
However, I was very taken aback on his behalf after hearing a news item on RTÉ last week. It appears that a young solicitor, having become unemployed fairly recently, moved back to live with his parents and rented out his apartment. He has
now been hit with the €200 tax on second homes introduced in 2010. Apparently, he may also be liable for penalties (€20 per month?) for not paying this annual tax within the prescribed period.
As the young man said: “I own only one home, so why should I be liable for a tax on a second home?”
A few questions:
1. Is the above version of events re liability for the second home tax accurate?
2. If so, what do the relevant regulations say and why was this anomaly not highlighted when the tax was introduced?
3. By now,my friend is probably a non-resident for tax purposes. Is he also liable for the €200 tax plus penalties?
A Yes, the above version of events regarding the second home tax is accurate. The tax arises as a result of the Local Government (Charges) Act which introduced a €200 annual charge on non-principal private residences, payable by the owners to the local authority in whose area the property concerned is located, and there are very limited exemptions. Only one property can be a principal private residence at any one time; as your friend now lives abroad, the apartment has ceased to become his principal private residence, and therefore is not now exempt from the charge. The Non Principal Private Residence (NPPR) charge therefore applies to your friend. According to the NPPR website ( nppr.ie) the 2012 charge is based upon the ownership and status of the property on March 31st, 2012, and must be paid on or before June 30th, 2012, to avoid late payment fees.
Even though your friend is non-resident for tax purposes, he is liable for the charge and, unfortunately, the penalties also. I’d suggest that as he is non-resident he may well need tax regulation in relation to the treatment of the rental payments, as payments of rents to non-residents can differ to payments of rents to domestic residents.
Ed Carey is a Chartered Surveyor and chairman of the Residential Property Professional Group of the Society of Chartered Surveyors Ireland. scsi.ie
