Multi-Unit Developments Act 2011

1.. Interpretation.

1.— (1) In this Act, unless the context otherwise requires—

“Act of 1963” means the Companies Act 1963;

“Act of 1982” means the Companies (Amendment) Act 1982;

“childcare facility” means a building or structure which is in use for the purposes of providing—

(a) a pre-school service, or

(b) a pre-school service and a day care service or other service to cater for children other than pre-school children,

and in this definition “pre-school child” and “pre-school service” have the meanings respectively assigned to them by section 49 of the Child Care Act 1991;

“commercial unit” means a unit in a mixed use multi-unit development which is not a residential unit and is intended for commercial use;

“common areas” means all those parts of a multi-unit development designated, or which it is intended to designate, as common areas and including where relevant all structural parts of a building and shall include in particular—

(a) the external walls, foundations and roofs and internal load bearing walls;

(b) the entrance halls, landings, lifts, lift shafts, staircases and passages;

(c) the access roads, footpaths, kerbs, paved, planted and landscaped areas, and boundary walls;

(d) architectural and water features;

(e) such other areas which are from time to time provided for common use and enjoyment by the owners of the units, their servants, agents, tenants and licensees;

(f) all ducts and conduits, other than such ducts and conduits within and serving only one unit in the development;

(g) cisterns, tanks, sewers, drains, pipes, wires, central heating boilers, other than such items within and serving only one unit in the development;

“developer” means the person who carries out or arranges for the development or construction of a multi-unit development;

“development stage” means the period which begins when the first unit to be made available for sale is so made available and ends after all construction works and ancillary works (including works on the common areas), for the multi-unit development have been completed in accordance with—

(a) all relevant planning permissions under the Planning and Development Acts 2000 to 2009,

(b) the requirements arising under the Building Control Acts 1990 and 2007, and

(c) in a case where section 3 applies, the contract referred to in section 3(1)(d);

“member” means member of an owners’ management company;

“Minister” means Minister for Justice and Law Reform;

“mixed use multi-unit development” means a multi-unit development of which a commercial unit (other than a childcare facility) forms part of the development;

“multi-unit development” means a development being land on which there stands erected a building or buildings comprising a unit or units and that—

(a) as respects such units it is intended that amenities, facilities and services are to be shared, and

(b) subject to section 2(1), the development contains not less than 5 residential units;

“owners’ management company” means, subject to subsection (3), 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;

“relevant parts” means, in relation to a unit, those parts of the common areas of a multi-unit development necessary for the enjoyment of quiet and peaceful occupation of such unit;

“residential unit” means a unit in a multi-unit development which is—

(a) designed for—

(i) use and occupation as a house, apartment, flat or other dwelling, and

(ii) has self-contained facilities;

or

(b) designed and used as a childcare facility and such facility is not intended to primarily share amenities, services and facilities with commercial units in the development;

“reversion” means the residue of ownership (if any) which continues in the transferor after the grant of any leasehold estate in land;

“unit owner” means a person other than the owners’ management company who holds the highest freehold or leasehold estate or interest in respect of a unit in a multi-unit development.

(2) In this Act a unit shall not be treated as having self-contained facilities unless the unit has bathroom facilities and cooking facilities within it for the exclusive use of the occupants of the unit concerned.

(3) In this Act a reference to an owners’ management company shall be construed, other than in the case of an owners’ management company to which section 3 or section 14 applies, as including a reference to an industrial and provident society and to a partnership or unincorporated body or group of persons owning the common areas of a multi-unit development, and in the case where such ownership is held by a partnership or unincorporated body or group of persons any of the persons in such partnership, body or group shall be entitled to enforce the covenants and house rules concerned.

(4) In this Act, save where the context otherwise requires, a reference to a transfer of ownership shall, subject to sections 3(7) and 4(2), be construed as a reference to a lease or a deed of transfer, conveyance or assignment.

(5) For the purposes of this Act a member of an owners’ management company shall be regarded—

(a) as being present at a meeting of members where he or she has validly appointed a proxy to attend and that proxy has attended the meeting,

(b) as having voted at a meeting of members where the member has validly appointed a proxy to vote at the meeting and the proxy (but not the member) has voted at the meeting,

where the appointment of proxies by members is permitted under the articles of association or other document which regulates the operation of the owners’ management company concerned.

(6) Subject to any order made by a court pursuant to section 24, nothing in this Act relating to—

(a) the obligation to transfer the ownership of the common areas of a multi-unit development or a relevant part of such common areas to the owners’ management company concerned,

(b) the obligation to establish an owners’ management company as respects that development, or

(c) the structure or conduct of the affairs of an owners’ management company,

shall be construed as preventing compliance with that obligation by the establishment of different owners’ management companies in respect of different parts of the multi-unit development or by the transfer to such companies of the ownership of such parts of the development.

2.. Application of Act.

2.— (1) Notwithstanding the definition of multi-unit development in section 1, the provisions of this Act specified in Schedule 1 shall apply to a multi-unit development comprising 2 or more residential units but less than 5 residential units.

(2) Where—

(a) all the units in a multi-unit development are residential units, and

(b) the structure, or that part of the structure, in which the residential units are situate, does not form part, and was never intended to form part, of the common areas of the development,

the provisions of Schedule 2 shall apply as respects the common areas of the development.

(3) Subject to subsection (4), in the case of a mixed use multi-unit development, this Act applies to—

(a) residential units in the development, and

(b) commercial units in the development, to the extent that amenities, facilities and services are shared by such commercial units and residential units.

(4) In the case of a mixed use multi-unit development the obligations imposed on an owners’ management company by this Act shall as respects such a company in which membership is held otherwise than by reason of ownership of a residential unit, be regarded as being complied with where—

(a) as between different classes of units in such a development sections 18 to 21 are complied with and a fair and equitable apportionment of the costs and expenses attributable to the different classes of units is applied, and

(b) in place of the requirements set out in section 14(1) and (2), the voting rights of the members in such an owners’ management company are apportioned in a manner which is fair and equitable.

(5) Except where otherwise provided, this Act applies to every multi-unit development.

(6) In this section—

(a) a reference to fair and equitable apportionment of the costs and expenses of the mixed use multi-unit development shall mean that account is taken of all relevant matters including the respective level of use of any common areas by the owners of different classes of units and their servants, agents and invitees; and

(b) a reference to costs and expenses shall be taken to be a reference to the matters referred to in sections 18(3) and 19(1).

3.. Conditions relating to sale of units in multi-unit developments.

3.— (1) A person to whom this section applies shall not, after the coming into operation of this section, transfer his or her interest in a residential unit in a multi-unit development to which this section applies unless—

(a) an owners’ management company has been established at the expense of the developer of the multi-unit development concerned,

(b) ownership of the relevant parts of the common areas of the multi-unit development and of any reversion in the residential unit being transferred has, subject to subsection (7), been validly transferred by deed (or otherwise) to the owners’ management company relating to that unit,

(c) a certificate from a suitably qualified person that the relevant parts of the multi-unit development have been constructed in compliance with the fire safety certificate concerned issued pursuant to the Building Control Acts 1990 and 2007 has been furnished by the person to whom subsection (2) (b) refers to the owners’ management company, and

(d) a contract in writing is entered into between the developer and the owners’ management company concerned prior to such transfer setting out the rights and obligations of each of those persons relating to the completion of the development and which includes particulars of the arrangements relating to—

(i) confirmation of compliance with all relevant statutory requirements,

(ii) completion of the work on the common areas concerned,

(iii) the release to the developer of monies held by the owners’ management company where the contract provides for monies to be so held by the owners’ management company pending completion of the common areas concerned, and

(iv) the process for resolving disputes between the parties to the contract as respects the completion of the development.

(2) This section applies to—

(a) a multi-unit development in which a residential unit has not previously been sold; and

(b) a person, other than the owners’ management company concerned, who is the owner of relevant parts of the common areas of a multi-unit development.

(3) The obligation, under this section, to transfer ownership of the relevant parts of the common areas of a multi-unit development includes an obligation—

(a) to transfer any right of way or access and any other easements appurtenant to the land so transferred or necessary for the reasonable use and enjoyment of the land concerned,

(b) to transfer all rights necessary to enable the owner of each residential unit to enjoy the quiet and peaceful occupation of the residential unit of which he or she is the owner, and

(c) to transfer all necessary amenities intended to be available for use in conjunction with the ownership and occupation of the residential units in the multi-unit development.

(4) Without prejudice to subsection (3), the person to whom subsection (2)(b) refers shall do all things within his or her power which are reasonably necessary to ensure that each owner of a residential unit in the development concerned enjoys the rights referred to in that subsection.

(5) The developer shall ensure that the owners’ management company established for the purposes of ownership and management of the common areas of a multi-unit development shall have all the powers necessary—

(a) to perform functions conferred or imposed on owners’ management companies by this Act, and

(b) to exercise any powers conferred on such a company by this Act,

in relation to the multi-unit development concerned.

(6) As respects the negotiation of and entering into the contract referred to in subsection (1)(d) and the transfer of the common areas concerned, the owners’ management company shall have legal representation and shall not be represented by the same solicitor or firm of solicitors as the developer or other person who is the owner of the common areas, and the reasonable costs of such representation shall be discharged by the developer or other person who is the owner of the common areas concerned.

(7) The transfer, in compliance with this section, of the ownership of the relevant parts of the common areas of a multi-unit development and in the reversion relating to the residential units shall reserve the beneficial interest therein to the person transferring the ownership of those parts (including any mortgagee or the owner of a charge affecting any such beneficial interest).

(8) In this section—

“suitably qualified person” means a person who is a member of a class or classes of persons prescribed by the Minister for the purposes of this section;

“prescribed” means prescribed by regulations made by the Minister having consulted the Minister for the Environment, Heritage and Local Government.

(9) Regulations made by the Minister under this section may prescribe a class or classes of persons who in the view of the Minister, having considered the qualifications, training, and expertise of such class or classes of persons by reference to the functions to be performed by members of such class pursuant to this section, are suitably qualified.

4.. Transfer of common areas in cases where section 3 does not apply.

4.— (1) Where, before the coming into operation of this section, the ownership of a residential unit in a multi-unit development has been the subject of a transfer by or on behalf of a developer to a purchaser, and the ownership of the relevant parts of the common areas and in the reversion relating to the residential units has not been transferred to the relevant owners’ management company, the developer shall, subject to subsection (2), arrange for the transfer of the ownership of the relevant parts of the common areas of the multi-unit development concerned together with the reversion to the relevant owners’ management company within 6 months of the coming into operation of this section.

(2) The transfer, in compliance with subsection (1), of the ownership of the relevant parts of the common areas of a multi-unit development and in the reversion relating to the residential units concerned shall reserve the beneficial interest therein to the person transferring the ownership of those parts (including any mortgagee or the owner of a charge affecting any such beneficial interest).

5.. Obligation of developer to transfer ownership of common areas of completed developments to owners’ management company.

5.— (1) Where, before the coming into operation of section 4, a multi-unit development has been substantially completed by or on behalf of the developer, and the ownership of the relevant parts of the common areas or the reversion in the units concerned has not been transferred to the owners’ management company concerned, the developer shall within 6 months of such coming into operation arrange for the transfer of such ownership to the owners’ management company concerned of the lands referred to in section 3(1)(b), without the reservation of any beneficial interest.

(2) For the purposes of this section, a multi-unit development shall be regarded as being substantially completed if the sales of not less than 80 per cent of the residential units in the development have been closed.

6.. Owners’ management company to join in transfer to purchasers.

6.— Each owners’ management company concerned shall, where requested by the developer to do so, join in a deed of conveyance or transfer relating to a residential unit in the multi-unit development and take such other steps as are reasonably requested of it to enable a good marketable title of a residential unit in a multi-unit development to vest in the purchaser of the unit concerned from the developer.

7.. Obligations to complete development to remain with developer.

7.— The transfer of the ownership of an interest in the relevant parts of the common areas of a multi-unit development shall not relieve the person who would otherwise have been responsible from the duty, obligation or responsibility to ensure completion of the development, including—

(a) compliance with the requirements or conditions of a planning permission under the Planning and Development Acts 2000 to 2009 which relates to the development concerned, and

(b) compliance with the Building Control Acts 1990 and 2007.

8.. Automatic transfer of membership of owners’ management company on sale of unit.

8.— (1) Where ownership of a residential unit in a multi-unit development is transferred, whether by conveyance, transfer, assignment, by operation of law or otherwise, membership of the owners’ management company which arises by virtue of ownership of that unit shall, notwithstanding any provision to the contrary in the Companies Acts or any other enactment, on such transfer stand transferred to the person becoming entitled to the freehold or leasehold interest in the unit concerned without the need to execute a transfer or have it approved by the directors of the company, and such person shall—

(a) be entitled to exercise the powers, rights and entitlement of a member in the company concerned, and

(b) be obliged to perform all the obligations (including the payment of service charges) pertaining to the membership of such company concerned.

(2) Notwithstanding subsection (1) an owners’ management company shall take all steps necessary to ensure—

(a) that the share certificate or membership certificate, as appropriate, is issued to the member concerned as soon as practicable following notification of the change of ownership of the residential unit,

(b) that the register of members of the company is altered accordingly, and

(c) that there is compliance with all other relevant requirements under the Companies Acts.