Management Company threat

Postit

What is the legal position of a resident in this hypothetical situation?

Apartment block has rules that bicycles must be kept in the bicycle racks in the car park and are not allowed to be brought through the common areas into individual apartments.

They send a threating letter to a resident saying that they have been made aware that the resident in question has been bringing their bicycle through the common areas and allege that this has caused damage to the floor and paintwork. They do not provide any proof of either accusation. There are no CCTV cameras in the common areas.

It is highly unlikely that the said resident has caused any damage whatsoever.

They request that the resident cease the practice immediately. If not, they will charge for cleaning and painting.

Firstly, do you they have a legal basis to make such accusations?

Secondly, can they legally bill the resident for cleaning and painting?

Thirdly, what action (if any) should the resident take?

All legal opinions gratefully received.

Tom Young

This isn't a hypothetical situation, is it?

Procrastastudy

Postit wrote: »

Firstly, do you they have a legal basis to make such accusations?

The constitutional right to freedom of expression - that type of thing? I assume you mean has our hypothetical man, we'll call him Tarquin, been defamed? No

Postit wrote: »

Secondly, can they legally bill the resident for cleaning and painting?

Tarquin should write a letter back saying he didn't do the damage.

Postit wrote: »

Thirdly, what action (if any) should the resident take?

Keep his bike in the racks in the car park from now on.

Tarquinn should also be careful that one of the external cameras hasn't caught him going in the block with his bike before he disputes ever having gone into the block with said bike.

Postit

GCDLawstudent wrote: »

Keep his bike in the racks in the car park from now on.

Tarquinn should also be careful that one of the external cameras hasn't caught him going in the block with his bike before he disputes ever having gone into the block with said bike.

Lets pretend that Tarquinn feels it is his right as a property owner to carefully store his belongings within his own four walls and that the "rules" of a management company are just that, rules! However well meaning they are, they are not law.

Is there a legal argument for Tarquinn on this basis? In other words is the law of the land on his side?

Procrastastudy

Nope because even if Tarquin owns the apartment he is still just a long term lease holder and must obey the house rules.

What Tarquin could do - assuming he's a leasehold owner - is get voted on to the board of directors and propose to change the rule. If not when Tarquin moves next time he should insist the Landlord furnish him with a copy of the house rules (as he should have done) and Tarquin can check to see if he can wheel his bike in and store it in his apartment.

mathepac

But if Tarquin is a tenant rather than an owner, the management company / managing agent should be billing the landlord (as the property owner) rather than the tenant because the managing agent / management company has no contract with the tenant - ne c'est pas?

Tarquin should call landlord - "I say old chap, it's a dreadful bore but could you talk with these managing chappies about my old bicycle and its appropriate abode? Thanks old bean, spiffing day, eh?"

Postit

Tarquinn is an owner.

not even wrong

Postit wrote: »

Lets pretend that Tarquinn feels it is his right as a property owner to carefully store his belongings within his own four walls and that the "rules" of a management company are just that, rules! However well meaning they are, they are not law.

Is there a legal argument for Tarquinn on this basis? In other words is the law of the land on his side?

Yes, as long as he can insert and extract the bicycle without bringing it onto the management company's property at any stage. We're looking at some sort of helicopter plus winch arrangement here....

Postit

not even wrong wrote: »

Yes, as long as he can insert and extract the bicycle without bringing it onto the management company's property at any stage.

As Tarquinn is an owner, he is also a management company shareholder no?

MadsL

Perhaps Tarquin could offer to cover all the painting maintenance himself in return for this exceptionalism being shown to him, or at least a higher proportion? No? Unfair eh? Well, how about the other owners paying more in maintenance for bicycle damage? Also unfair.

I'd also assume that Tarquin read and signed his agreement that he would follow the rules before buying said property. I'd suggest Tarquin keeps his word or lobby to change the rules.

Postit

Tarquinn did not cause any damage. Legal opinions only please.

MadsL

Tarquin signed a contract agreeing to the rules, did he not?

Tom Young

Postit wrote: »

Tarquinn did not cause any damage. Legal opinions only please.

Legal Opinion: Tarquinn should comply with his lease and the covenants therein. In the absence of such covenants, then guidance from the management company should be sought as to procedure, or any perceived difficulties with existing arrangements for the storage of bicycles.

Tarquinn comes across as a neighbour that would prefer to find a loophole that may not exist, to a maintenance issue, contributed to by him.

Carawaystick

How is a bicycle defined in the rules/contract? I'd imagine it'd have 2 wheels. If you brought various components of a bike in in stages?

Postit

Tom Young wrote: »

Legal Opinion: Tarquinn should comply with his lease and the covenants therein. In the absence of such covenants, then guidance from the management company should be sought as to procedure, or any perceived difficulties with existing arrangements for the storage of bicycles.

On what legal basis should Tarquinn comply?

Where in case, statute or constitutional law does it express that a property owner cannot store his/her property on his/her property with the exception of hazardous or illegal items etc?

Does the law of the land not trump any rules set out by a management company?

I'm not trying to be petty here but I'm requesting legal opinions on this point and not personally held views.

MadsL

Postit wrote: »

On what legal basis should Tarquinn comply?

Did Tarquin sign the covenants/rules/agreement of the property? If so, Tarquin is bound by them.

Where in case, statute or constitutional law does it express that a property owner cannot store his/her property on his/her property with the exception of hazardous or illegal items etc?

I expect that Tarquin does not own the common areas, therefore what law of the land gives you a right of bicycle access as well as pedestrian access to your apartment except by permission of the management company? Very simply Tarquin has access/easement but no rights to bring any vehicle across the property except by agreement/permission.

Postit wrote: »

Does the law of the land not trump any rules set out by a management company?

What law would that be? What law of the land are the rules attempting to defy??

Tom Young

Postit wrote: »

On what legal basis should Tarquinn comply?

Where in case, statute or constitutional law does it express that a property owner cannot store his/her property on his/her property with the exception of hazardous or illegal items etc?

Does the law of the land not trump any rules set out by a management company?

I'm not trying to be petty here but I'm requesting legal opinions on this point and not personally held views.

The poster above has answered this. Tarquinn's hands are tied by his lease, I stated that already. The rule in Tulk v Moxhay would do it, seeing as you're chasing law. This states that covenants run with the land, restrictive or otherwise. In case you want to come back and say: "hey, thats an English case". Well, yes, but it applies and may well be codified in recent years.

Tarquinn and his bike might also be interested in The Landlord and Tenant Law Amendment (Ireland) Act 1860, better known as Deasy's Act, was an Act of Parliament preceding the agrarian unrest in Ireland in the 1880s, the "Land War".

The Act was named after its promoter Rickard Deasy, the Attorney-General for Ireland in the Liberal Party government of Lord Palmerston.

Deasy's Act amended the Landlord and Tenant (Ireland) Act 1826. The 1860 Act was itself amended by the Irish Land Acts.

The Act made contract law the basis for tenancies and abolished any feudal rents paid by services to a landlord, or by payments in kind.

RangeR

pwned

MagicSean

i don't like this Tarquin guy at all. He seems like a selfish neighbour. I wonder has he considered bringing his bike through the window.

Indricotherium

MagicSean wrote: »

i don't like this Tarquin guy at all. He seems like a selfish neighbour. I wonder has he considered bringing his bike through the window.

I take it it's a push bike and not a Kawasaki ninja or the like?

birdwatcher

If I was Tarquinn I really wouldn't be bothered what the Management Company threaten him with....
FACT: He is not solely responsible for the damage (If any) to the common area floor. Casual footfall and other natural wear and tear will all take it's toil on any floor surface.
FACT: The management company are required by law under the MUDs Act to have provision made for unforeseen expenses relating to the upkeep of all common areas......
There may be issues here if Tarquinn is not a fully up to date paid subscriber to the fees he's due to pay every year
QUESTION: What if Tarquinn was wheelchair bound? Would entry to his abode by means of this type of wheeled appendage constitute breach of the terms of his lease?......i'm putting this in here purely as an example of why the terms of the lease would almost have to specify the difference between the different types of wheeled conveyences that are not allowed to enter the building...

MagicSean

birdwatcher wrote: »

If I was Tarquinn I really wouldn't be bothered what the Management Company threaten him with....
FACT: He is not solely responsible for the damage (If any) to the common area floor. Casual footfall and other natural wear and tear will all take it's toil on any floor surface.
FACT: The management company are required by law under the MUDs Act to have provision made for unforeseen expenses relating to the upkeep of all common areas......
There may be issues here if Tarquinn is not a fully up to date paid subscriber to the fees he's due to pay every year
QUESTION: What if Tarquinn was wheelchair bound? Would entry to his abode by means of this type of wheeled appendage constitute breach of the terms of his lease?

FACT: If you damage someone elses property you can be liable for it bothe criminally and civilly. That's a FACT

mikemac1

Tell the management company you'll take them seriously only if they ban childrens buggys too

Are people folding these up and the carrying them inside? Of course not

Can mark the walls, bringing in dirt from outside yet it's only bikes that are banned

Tom Young

Tom Young wrote: »

The poster above has answered this. Tarquinn's hands are tied by his lease, I stated that already.

Also Section 23 of the Multi Unit Development Act may well apply regarding House Rules but Tarquin would need to give more info to be sure.

birdwatcher

Causing damage to a floor/wall by breaching the terms of your lease is not something a Management Company can threaten legal action over, especially if it's accidental, and in this case (as far as we know) unproven ......seriously.

I think someone earlier suggested that Tarquin get himself elected onto the board of directors at the next agm...good call.
If he manages to do this, he will then be able to present a well informed and civil argument as to why he feels he is being victimised for a crime he didn't (sic) commit.
As the managing agents act purely on the instruction of the board of Directors, he may well be in a position to have the terms of the lease reviewed and repealed by the other shareholding members at an AGM.

birdwatcher

birdwatcher wrote: »

Causing damage to a floor/wall by breaching the terms of your lease is not something a Management Company can threaten legal action over, especially if it's accidental, and in this case (as far as we know) unproven ......seriously.

You're wrong.

birdwatcher

Actually........lets put the boot on the other foot for a minute.....
What if Tarquin decided to park his bike outside in the bike racks as requested by the Management Company...like a good little law abiding citizen.
Then one bright and cheery morning, he gets up to find his Bike's been nicked by some nasty little oik.

Can Tarquin in turn threaten to sue the Mgmt Company for failing to provide adequate security for his bike.
By forcing him to abandon his beloved bicycle out in the cold, and not providing 24 hour surveillance (never could spell that word), they are surely in neglect of their duty to care and thus leave themselves wide open to retribution..........:rolleyes:

This is great craic altogether!!

birdwatcher

Deleted User wrote: »

You're wrong.

Jaysus!...fair enough!

birdwatcher

birdwatcher wrote: »

Jaysus!...fair enough!

Sorry if I was a little terse.

I should really have said you're probably wrong. If there are House Rules that state he can't bring his bike through the common areas and if he has committed a material breach of that rule then the cost of the repairs occasioned by the material breach can be recovered by the Management Company in the manner of a simple contract debt in a Court of appropriate jurisdiction.

But there are other caveats to that as well.

krd

Have you thought of calling the Viper?

He's doing debt collection but I hear he does a mean mediation too.

Don't rely on the law - they're only there to make sure big fat farmers and fianna failers can rape us.

It's not a solicitor you need.

What you need.......is the Eqauliser.

https://www.youtube.com/watch?v=uB1NiNKwueE

birdwatcher

Deleted User wrote: »

Sorry if I was a little terse.

I should really have said you're probably wrong. If there are House Rules that state he can't bring his bike through the common areas and if he has committed a material breach of that rule then the cost of the repairs occasioned by the material breach can be recovered by the Management Company in the manner of a simple contract debt in a Court of appropriate jurisdiction.

But there are other caveats to that as well.

Fair comment.
The point here is that the Management Company really have little chance of recovering any monies if they decide to pursue the issue.
In the end it is the fee paying members/shareholders who shoulder the burden of debt both in terms of the legal fees and/or refurbishing the damaged area.
From personal experience in this area, it's almost impossible to recover unpaid management fees, let alone go after someone on a legal footing for the cost of repainting a wall or re-tiling a floor.
It's one thing for a Management Company to issue the threat of legal action and quite another thing for them to follow up on it without allowing for a personal face-to-face meeting with the alleged perpitrator to rebut their accusations

birdwatcher

birdwatcher wrote: »

From personal experience in this area, it's almost impossible to recover unpaid management fees, let alone go after someone on a legal footing for the cost of repainting a wall or re-tiling a floor.

This is the precise reason that the MUDs Act allowed almost all monies owed to Management Companies to be pursued as a simple contract debt rather than having to prove loss and go through a more elongated process. It was to speed this kind of action up and make debt recovery for management companies more workable.

birdwatcher

In fairness Kayroo, the theory is spot on. The practice however, is entirely another issue.
Drawn out legal action can leave the coffers bereft of vital funds....and I'm just talking about the preamble to the enivitable final standoff.
Engagement of debt collection agencies can sometimes work, but in the majority of cases, these things just run and run.
The act itself is flawed in that there are so many grey areas open to interpretation....provision of funds, enforcement, and the fact that when property tax is introduced, will the MUDs Act be repealed and ultimately done away with altogether.
People cannot afford to pay (in some cases) the equivilant of an extra 2 or 3 extra mortgage payments annually.
But this is entirely another matter.

I'd like to hear more from Tarquinn, who seems to have gone strangely quiet.

BornToKill

birdwatcher wrote: »

QUESTION: What if Tarquinn was wheelchair bound? Would entry to his abode by means of this type of wheeled appendage constitute breach of the terms of his lease

That would depend on whether his wheelchair was a bicycle?

birdwatcher

birdwatcher wrote: »

The act itself is flawed in that there are so many grey areas open to interpretation....provision of funds, enforcement, and the fact that when property tax is introduced, will the MUDs Act be repealed and ultimately done away with altogether.

Why will it be repealed? The primary purpose of the Act is to put the OMC on a statutory footing and regulate transfer of common areas and developer/OMC relationships.

The property tax won't cover things managed by the Sinking Fund and the Service Charge.

MadsL

birdwatcher wrote: »

Fair comment.
The point here is that the Management Company really have little chance of recovering any monies if they decide to pursue the issue.
In the end it is the fee paying members/shareholders who shoulder the burden of debt both in terms of the legal fees and/or refurbishing the damaged area.
From personal experience in this area, it's almost impossible to recover unpaid management fees, let alone go after someone on a legal footing for the cost of repainting a wall or re-tiling a floor.
It's one thing for a Management Company to issue the threat of legal action and quite another thing for them to follow up on it without allowing for a personal face-to-face meeting with the alleged perpitrator to rebut their accusations

I own a house within a Condo Association in the US, if I fail to pay dues a lien is placed on the house. Equally if I breach the Association rules I can be fined and again if I fail to pay a lien is enacted on the house. This potentially affects my credit rating and immediately affects my ability to sell the house unless I clear the lien.

What is the process in Ireland? Is a judgement required before contacting the Sheriff's office to seize goods?

Is there scope for law reform to bring in a more streamlined 'lien-based' debt system. In the US, even unpaid contractors can place a lien on lien on the house to ensure they get paid.

juan.kerr

Every apartment block has at least one crank.

Kosseegan

Deleted User wrote: »

This is the precise reason that the MUDs Act allowed almost all monies owed to Management Companies to be pursued as a simple contract debt rather than having to prove loss and go through a more elongated process. It was to speed this kind of action up and make debt recovery for management companies more workable.

That was a bit stupid of the Oireachtais. A simple contract can only be actionable for 6 years rather than the 12 previously, as a contract of form.