Management companies right to clamp?

Markdub2000

I have a managment company related query.

I purchased a house on an estate which employs a management company and the deeds of the house include 1.5 car parking spaces.

Along with the houses in the development there are a number of apartment blocks, the management company recently called a meeting to raise the issue of non payment of service charges by a large percentage of the house owners and an even larger percentage of the apartment dwellers.

The management company stated that landscaping services to the estate have now been suspended and the money that the houses are paying is going towards the apartment block insurance policies, which I believe is a gross misappropriation of the funds I have paid into it, I am fully up-to-date with respect to my own fees.

They also stated that they intend to introduce a permit parking scheme whereby permits are given to members who have paid their fees and cars of those without permits (who haven't paid their fees) are clamped.

While I do believe the non-payers need to be persued to the full extent of the law, I do not want a clamping company operating in the estate, they impact property values, potential tennants and harrass visitors, in what is essentially a suburban area.

The vote on this proposal is in the next meeting, is there any legal way for me to block them from implementing this clamping policy?

Could one threaten them with legal action should any car belonging to them or visitors to their household be clamped?

Could one also seek an injunction on funds paid by them to the management company from being paid against the insurance policy for the apartments?

Is it worth consulation with a solicitor on the matter or is it pointless from a legal standpoint and I should just have to grin and bear it?

The management company have also pampletted the estate with leaflets threatening further loss in property value should the management company be wound up - giving a paragraph from a book stating in accordance with the office of the director of corporate enforcement.

My preference towards a management company has dwindled in light of the following:

- The current incumbant has mismanaged the issue of debtors since the companies inception, and has hidden this from us home owners.

- Landscaping contractors on the estate have consistently failed to maintain the development to an adequate standard, broken lighting, poor sanitation, desperate gardening and failure to implement a communal satellite antenna, which I believe has lead to many homeowners refusing to pay.

- We will shortly be paying a property tax to the council for maintenace of street lighting, landscaping, etc...

As a home owner, I am part director, can I force the company to wind up knowing that the council will eventually take over management of the estate ( at least the housing area anyway)

Paulw

Markdub2000 wrote: »

I purchased a house on an estate which employs a management company and the deeds of the house include 1.5 car parking spaces.

You mean that the management company, which you are a member of, employs a management agent?

Do your deeds specify that you have 1.5 spaces, or does it specify that there are 1.5 spaces per unit? There is a big difference.

Markdub2000 wrote: »

The management company stated that landscaping services to the estate have now been suspended and the money that the houses are paying is going towards the apartment block insurance policies, which I believe is a gross misappropriation of the funds I have paid into it, I am fully up-to-date with respect to my own fees.

The one management company has to pay the most important items first, and block insurance would be a lot more important to pay than landscaping.

Markdub2000 wrote: »

The vote on this proposal is in the next meeting, is there any legal way for me to block them from implementing this clamping policy?

Could one threaten them with legal action should any car belonging to them or visitors to their household be clamped?

Could one also seek an injunction on funds paid by them to the management company from being paid against the insurance policy for the apartments?

Is it worth consulation with a solicitor on the matter or is it pointless from a legal standpoint and I should just have to grin and bear it?

The way for you to block the clamping is to get enough members of the management company (other unit owners) to vote against it.

Threaten legal action on what grounds?

You are a member of the management company. At each AGM you (members) elect directors of the management company. At the AGM you decide on the company budget for the coming year, and on how the funds are spent. Have you attended your company AGM? If not, why not???

Markdub2000 wrote: »

- We will shortly be paying a property tax to the council for maintenace of street lighting, landscaping, etc...

No, the property tax will go to the govt, who claim it will go to the council. But there is no indication of how that will work - ie it won't happen.

Markdub2000 wrote: »

As a home owner, I am part director, can I force the company to wind up knowing that the council will eventually take over management of the estate ( at least the housing area anyway)

Part director??? You are either a director or not. You are certainly a member of the management company.

If your management company is wound up, the council will NOT take over. In fact, if your management company is wound up, you will not be able to sell your property and in fact the whole development will go downhill very very fast and you will end up in a lot more trouble than you currently feel you are in.

No harm in you consulting a solicitor, but I doubt the opinion will differ that much from mine, but you just never know.

Marcusm

Markdub2000 wrote: »

I have a managment company related query.

I purchased a house on an estate which employs a management company and the deeds of the house include 1.5 car parking spaces.

Reread this part of your post and think about it; do you really own 1.5 parking spaces? What use would .5 of a parking space be. Unless the title to the property (whether freehold or leasehold) includes the land on which a specific parking space is included, what you will have is at best a covenant that for each house built ont he estate, 1.5 parking spaces will be provided for the use of residents and visitors. This does not convey to use any enforceable right of use of the space, merely an expectation that some spaces may be available for your use and that of your neighbours. If the average number of cars per house is more than 1.5, people will not always be able to park.

I agree with you that clamping is a very divisive issue and it's best avoided if possible. It seems that the mangement company (presumably on the advice of a management agent) has formed the view that it's the stick which can be used to beat recalcitrant residents who have not paid their service fees. Perhaps they are right but have all enforcement options been taken? Have demand notices been sent? If the apartment owners are the problem, do the leases provide for forfeiture of the lease for non payment?

If such clauses are included, they can prove useful to act against non payers - the mortgage holder (bank or finance company) would likely stump up the service charge to avoid a threat of forfeiture. Perhaps you should try and become a member of the board of the management company and explore other options. Clamping is the easiest one but it won't get the money in from people who don't have a car!

Markdub2000

I believe the wording is that there are 1.5 spaces per unit - I presume this was to allow the developer to squeeze 3 spaces between 2 units.

I am blessed that I do have 2 full spaces infront of the house and it is highly unlikely that any one else will park in my driveway.

Although I agree with the prioritising of the management company bills, I do not see reason for my funds to go towards the policy of an asset I have no interest in.

The way I see it, the apartment owners that have not paid have no insurance, therefore if the building burnt down tomorrow, they should either have to stump up the replenishment cost or the building is constructed without their unit in the development - I see no reason to subsidise their insurance. If my house burnt down tomorrow and I had no insurance, it wouldn't be reconstructed just because it's in the development!

The AGM for voting in the clamping is coming up shortly - however, I do not wish to leave myself at the mercy of a vote.

I bought into a development that did not have clamping and do not wish to be part of one that does, if it had I would have bought elsewhere.

I absolutely never ever park my car in a zone where clamping is in operation regardless whether it is pay or not. I don't visit shopping centres that have it, I don't go to relatives that live in developments with clamping, I didn't even visit very ill relatives in blanchardstown hospital because they have clampers.

When it comes to clamping my car I have a very, very, very short fuse, god help anyone that does clamp my car, my blood boils even thinking about it - which is why I always, always make damn sure I am parked legally and in a place that does not exercise clamping.

I can see myself moving off this development if they do introduced it, even to the extent I'd board up all the doors and windows with ply wood and fit lovely sheet steel to the front door.

I would be of the belief that I would have sufficient grounds to persue legal action against a management company that clamped any car on or infront of what is effectively my property regardless of whether I paid service charges or not, or displayed a permit.

They should exhaust all legal enforcement options first to the extent of obtaining a judgement against the property and besides, as Marcusm mentions, why should the non-car owning people escape punishment?

Paulw

Markdub2000 wrote: »

I believe the wording is that there are 1.5 spaces per unit - I presume this was to allow the developer to squeeze 3 spaces between 2 units.

Correct. It is also used in many apartment blocks, where there are there are Y no of units and then Yx1.5 parking spaces for the development. It does not mean that everyone can use 1.5 spaces though.

Markdub2000 wrote: »

Although I agree with the prioritising of the management company bills, I do not see reason for my funds to go towards the policy of an asset I have no interest in.

They are not your funds, they are the funds of the management company, which you belong to and contribute to, as per your legal requirement.

Markdub2000 wrote: »

The way I see it, the apartment owners that have not paid have no insurance, therefore if the building burnt down tomorrow, they should either have to stump up the replenishment cost or the building is constructed without their unit in the development.

But, that is not how it works.

Markdub2000 wrote: »

The AGM for voting in the clamping is coming up shortly - however, I do not wish to leave myself at the mercy of a vote.

You have no other choice. It's a case where company members all have an equal vote. Every paid up member of the management company has the right to vote at the AGM. Those who haven't paid their fees usually do not have the right to vote. Check the articles of association of your management company.

Markdub2000 wrote: »

I bought into a development that did not have clamping and do not wish to be part of one that does, if it had I would have bought elsewhere.

But, you do not make the rules. The management company make the rules, and you are just one member of it. You should have factored in the management company when making your purchase.

Markdub2000 wrote: »

I always, always make damn sure I am parked legally and in a place that does not exercise clamping.

Good. But, since you said you have paid up fees, you will get your permits and should never be clamped anyway.

Markdub2000 wrote: »

I can see myself moving off this development if they do introduced it, even to the extent I'd board up all the doors and windows with ply wood and fit lovely sheet steel to the front door.

Which may actually be in breach of the management company rules written in to the contracts you signed when buying your unit, probably under a clause about keeping your premises in good state so as not to become an eye-sore. They could then take you to court, and probably win.

Markdub2000 wrote: »

I would be of the belief that I would have sufficient grounds to persue legal action against a management company that clamped any car on or infront of what is effectively my property regardless of whether I paid service charges or not, or displayed a permit.

I believe you would be wrong and would not win your case. It is not your property, you only have use of it. The management company are within their legal rights to set terms for use of the property, including the use of permit parking and clamping. But, consult a solicitor if you want another opinion on that.

Markdub2000 wrote: »

They should exhaust all legal enforcement options first to the extent of obtaining a judgement against the property and besides, as Marcusm mentions, why should the non-car owning people escape punishment?

Legal enforcement options can take a long long time. Parking enforcement tends to bring in funds a lot quicker. The legal route to bring in money can take a number of years. While that is happening, the management company require more and more funds, which will mean that your management fees will increase.

Of course, if you, and your fellow management company members don't mind paying increased fees while you chase the others for their money, then that is another option you can propose at the AGM, instead of clamping.

Speaking from actual experience, bringing in clamping, while not ideal, is a very good way to get the funds coming in. In many cases, you only need to bring in clamping for 6 months to a year, and once people start to regularly pay, they tend to keep paying, so you can then end clamping. It can be the lesser of two evils, to bring in the funds.

Lantus

Theres a fundemental problem that no one is paying the fees. The directors and agent can only operate with the service funds, when enough people dont pay the services cannot be provided. The OMC has limited options in this case. They can take people to court (expensive and the money spent must be recovered from the service fee.) or get the baliffs in (not very popular) or use parking permits. This only works where all the parking is on street. Private driveways cannot be clamped.

In terms of voting the articles of association will probably specify that only the people who have paid service fee's can vote (ours do) and only those people can stand and become directors if voted in so dont not pay and then expect to make sweeping changes.

collecting debt is a tricky area as directors are often residents. which residetn wants to legally enforce payment of a neighbour and potentially face recrimination? If it's that easy become a director and do it.

The law favours the company so be very careful of wasting money on legal advice. they will often just say work it out yourselves. The ODCE have clearly stated that non payment of service fee and troubles resulting are matters for the residents rather than the state or the court to resolve. Unless they have comitted fraud and you can prove it, you and your fellow residents need to sort this out.

best of luck and let us know how it goes.

PS - if you have large grass areas and they go uncut for a long time it will cost more in the long run as specilist equipment will be needed to change from a meadow back to grass, we had to do this and it was a nightmare!

page1

Lantus wrote: »

Theres a fundemental problem that no one is paying the fees. The directors and agent can only operate with the service funds, when enough people dont pay the services cannot be provided. The OMC has limited options in this case. They can take people to court (expensive and the money spent must be recovered from the service fee.) or get the baliffs in (not very popular) or use parking permits. This only works where all the parking is on street. Private driveways cannot be clamped.

In terms of voting the articles of association will probably specify that only the people who have paid service fee's can vote (ours do) and only those people can stand and become directors if voted in so dont not pay and then expect to make sweeping changes.

collecting debt is a tricky area as directors are often residents. which residetn wants to legally enforce payment of a neighbour and potentially face recrimination? If it's that easy become a director and do it.

The law favours the company so be very careful of wasting money on legal advice. they will often just say work it out yourselves. The ODCE have clearly stated that non payment of service fee and troubles resulting are matters for the residents rather than the state or the court to resolve. Unless they have comitted fraud and you can prove it, you and your fellow residents need to sort this out.

best of luck and let us know how it goes.

PS - if you have large grass areas and they go uncut for a long time it will cost more in the long run as specilist equipment will be needed to change from a meadow back to grass, we had to do this and it was a nightmare!

if you do a search for clamping you will find many threads about it. Only clampers with statutory powers can clamp cars. It is an offence under the Road Traffic Act to interfere with the mechanism of a mechanically propelled vehicle without lawful authority.

Paulw

page1 wrote: »

if you do a search for clamping you will find many threads about it. Only clampers with statutory powers can clamp cars. It is an offence under the Road Traffic Act to interfere with the mechanism of a mechanically propelled vehicle without lawful authority.

Can you show any caselaw on that point please, specifically relating to clamping on private property?

Many managed developments use clamping, many private car parks use clamping, etc, etc. If it's all so illegal, how do these clamping companies do business? :rolleyes:

MagicSean

page1 wrote: »

if you do a search for clamping you will find many threads about it. Only clampers with statutory powers can clamp cars. It is an offence under the Road Traffic Act to interfere with the mechanism of a mechanically propelled vehicle without lawful authority.

The existing case law in the UK, which Ireland would likely follow, states that clamping is a lwaful civil action. In addition, apartment parking areas are rarely public places because they are usually controlled by permits and gates and not open to the general public.

Lantus

Paulw wrote: »

Can you show any caselaw on that point please, specifically relating to clamping on private property?

Many managed developments use clamping, many private car parks use clamping, etc, etc. If it's all so illegal, how do these clamping companies do business? :rolleyes:

There are different levels of private property. Common areas in an estate where an OMC is present are technically private property. They are owned by the OMC and managed. On street parking is a 'common area' and not part of a property. A property owner may have an entitlement to park near there own house but they cannot sell or develop the area as it were their own.

This is in contrast to having your own private front garden and driveway within a managed estate. That is your own personal property. When anyone else enters they are in effect tresspassing and to clamp your own car on your drive way would be an offence and unlawful. The OMC has no right to affect your poperty on your own land even where it is within a managed estate. It is not a common area so they have no rights.

If I parked it on the street then they would be in their rights to clamp. Thats part of the common areas.

MagicSean

Lantus wrote: »

There are different levels of private property. Common areas in an estate where an OMC is present are technically private property. They are owned by the OMC and managed. On street parking is a 'common area' and not part of a property. A property owner may have an entitlement to park near there own house but they cannot sell or develop the area as it were their own.

This is in contrast to having your own private front garden and driveway within a managed estate. That is your own personal property. When anyone else enters they are in effect tresspassing and to clamp your own car on your drive way would be an offence and unlawful. The OMC has no right to affect your poperty on your own land even where it is within a managed estate. It is not a common area so they have no rights.

If I parked it on the street then they would be in their rights to clamp. Thats part of the common areas.

But the management company have already obtained your consent to clamp your car. In fact, you have instructed them to do so.

page1

MagicSean wrote: »

The existing case law in the UK, which Ireland would likely follow, states that clamping is a lwaful civil action. In addition, apartment parking areas are rarely public places because they are usually controlled by permits and gates and not open to the general public.

The OP says he lives in a housing estate not in a gated apartment complex, so if he is clamped on the public road in the estate by someone who doesnt have lawful authority, that is an offence.

In relation to private areas, in the UK case law you refer to, the courts relied on the defence of volenti non fit injuria (voluntary assumption of risk). In Ireland that has been abolished by S34(1) of the Civil Liability Act save for s34(1)(b) in the case of contracts between the parties. The same Act defines a contract as one made under deed or by parol.
I remember people talking about a case in Waterford DC about clamping on WIT and the judge held it was illegal. Perhaps someone could verify that?

I would have questions about the legality of the MC introducing parking permits for people who have paid their management fees. The owners would have signed a contract when buying the house covering all the terms and conditions and unless this contract gives the MC power to introduce parking permits and clamp those without permits, then I would argue that it is attempting to introduce new terms into the contract after its conclusion. This contract would need to be examined to see exactly what powers are given, and see for example what voting rights the members who havent paid the fees have etc. Would the introduction of a new term like this need the consent of everyone or a majority?

In practical terms I dont even know how this could be enforced properly. Will owners also be given visitor permits, what about rented apartments, will the tenant's cars be clamped if the landlord/owner hasnt paid?

Paulw

page1 wrote: »

I remember people talking about a case in Waterford DC about clamping on WIT and the judge held it was illegal. Perhaps someone could verify that?

No, I don't believe that was the outcome. I can't find it now, but I remember seeing it posted here on boards for discussion. It wasn't the ruling that clamping was illegal though.

page1 wrote: »

Would the introduction of a new term like this need the consent of everyone or a majority?

Yes, a majority vote is normally all that is needed, but again the explicit documents and contracts may need to be examined properly by a solicitor.

page1 wrote: »

In practical terms I dont even know how this could be enforced properly. Will owners also be given visitor permits, what about rented apartments, will the tenant's cars be clamped if the landlord/owner hasnt paid?

It happens frequently in managed developments. Tenants are given permits via their landlord. If the landlord doesn't pay, the tenant can take civil action against the landlord for any clamping fees paid (and the tenant will win). All units would be given visitor permits as well as resident permits. That's normal.

MagicSean

Afaik the case you are referring to was a criminal damage case against a person who had removed a clamp. The judge found that the clamp had not been lawful and the person had every right to remove it.

page1

Can you remember what reasons he gave that the clamp was unlawful?

If the estate is privately managed are the roads still considered a "public place" - I would have thought so as the public have access to them. If this is the case then they cannot clamp the cars which are parked on the public road. Only someone with statutory authority can such as AGS if the car is causing an obstruction/parked illegally or the local council.

That leaves us to consider the clamping of cars on private grounds such as the designated parking spaces. As far as I can see this can only be done by a change in the contract between the individual members and the management company (not simply by the placing of signs as I have dealt with above)
The terms of the contract will have to be examined. Assuming its standard terms then the members who are not fully paid up will not be entitled to vote on this issue.
I wonder then would they have a cause of action under S205 of the Companies Act 1963 for oppression of shareholder rights/interests. They would have to prove that the behaviour is "burdensome,harsh and wrongful".
While I completely agree that members who owe money to the company needs to be pursued for it, I have my doubts that clamping (and imprisoning) their car until outstanding monies are paid is going to be considered as reasonable behaviour. The debt could amount to thousands of Euros.

Paulw

page1 wrote: »

The terms of the contract will have to be examined. Assuming its standard terms then the members who are not fully paid up will not be entitled to vote on this issue.
I wonder then would they have a cause of action under S205 of the Companies Act 1963 for oppression of shareholder rights/interests. They would have to prove that the behaviour is "burdensome,harsh and wrongful".

In our development, the Lease Contract, signed upon purchase of a unit states -

No member shall be entitled to vote at any general meeting unless all moneys immediately payable by him to the Company have been paid.

I assume that similar wording is used in most contracts.

I don't believe that that clause would constitute an oppression of shareholder rights/interests.

Busman28

There is no legal right to clamp a car on private property in Ireland and in Scotland it is unlawful and is regarded as trespass and theft.

One is perfectly entitled to remove a clamp fitted by a private body to a private vehicle on private property and can initiate a claim for trespass against the clamper

Paulw

Busman28 wrote: »

One is perfectly entitled to remove a clamp fitted by a private body to a private vehicle on private property and can initiate a claim for trespass against the clamper

You cannot claim trespass if the clamper has been granted permission by the management company. You, as an individual, do not have that right.

Irish law and scottish law differs, in many aspects.

Fred Swanson

This post has been deleted.

Busman28

Paulw wrote: »

You cannot claim trespass if the clamper has been granted permission by the management company. You, as an individual, do not have that right.

Irish law and scottish law differs, in many aspects.

They have not been granted permission to place any obstruction on your car and unless they have statutory authority from the Garda or local authority it is a trespass to interfere with another's private car.
The relevance of Scottish law is that it can be used as a precedent in the absence of any Irish legislation
In addition the management company would need to establish that it is the legal occupier of the property in order to contract with a third party to manage the open spaces. In many cases the open spaces have not been transferred to the management company, particularly if the developer is in receivership.

Paulw

Busman28 wrote: »

They have not been granted permission to place any obstruction on your car and unless they have statutory authority from the Garda or local authority it is a trespass to interfere with another's private car.
The relevance of Scottish law is that it can be used as a precedent in the absence of any Irish legislation
In addition the management company would need to establish that it is the legal occupier of the property in order to contract with a third party to manage the open spaces. In many cases the open spaces have not been transferred to the management company, particularly if the developer is in receivership.

Please let us know when you take such a case to court and win.

Busman28

I have removed clamps from my car and contacted clamping company that I have done so without response.

Busman28

The onus is on the clamper to prosecute and they have not done so even though I provided my full details

Paulw

Busman28 wrote: »

The onus is on the clamper to prosecute and they have not done so even though I provided my full details

If you say that the clamper is trespassing, then the onus is on you to bring it to court.

Until such time as there is clear case law or clarification in law, then the act of clamping on private property is a very gray area.

Busman28

I removed the clamp.
The next move is theirs