, a building society or other financial institution that a charge proposed to be created by it by a charging order shall have a priority, as against a mortgage or charge proposed to be created in favour of that holder, society or institution, that is different from the priority the charge would otherwise have if this subsection had not been enacted.
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(11)A housing authority or an approved body may only enter into an agreement referred to in subsection (10) if it considers that the agreement will— (a) enable an eligible household to whom it is proposing to sell a dwelling to which this Part applies under an incremental purchase arrangement to obtain an advance of moneys from the holder, society or institution referred to in subsection (10) for the purposes of purchasing the dwelling, or (b) enable a purchaser— (i) to refinance an existing advance of moneys from the holder, society or institution referred to in subsection (10), or (ii) to obtain a further advance of moneys from the holder, society or institution referred to in subsection (10), for any purpose.
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(12)Any amount that becomes payable to a housing authority or an approved body under section 47 or 48 may, without prejudice to any other power in that behalf, be recovered by the authority or approved body, as the case may be, from the person concerned as a simple contract debt in any court of competent jurisdiction.
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(13)For the avoidance of doubt, neither a charging order nor a charge that arises under it shall be regarded as a conveyance for the purposes of section 3 of the Family Home Protection Act 1976 .
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(14)(a) On the occurrence of the earlier of the events specified in subsection (4)(a) and subject to the terms and conditions of the transfer order and of the charging order having been complied with, the housing authority or approved body, as the case may be, shall, where requested to do so by the purchaser, execute a deed of discharge in respect of the charging order. (b) The housing authority or approved body, as the case may be, shall be liable for any expenses incurred in the execution and registration of a deed of discharge but shall not otherwise be liable for any expenses incurred by a purchaser under this section or under section 47 or 48.
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Suspension of reduction of charged share.
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47.— (1) A housing authority or approved body, as the case may be, may suspend the reduction of the charged share provided for under section 46 in respect of any year ending on the anniversary of the transfer order, where the purchaser fails to comply with any of the terms and conditions of the transfer order.
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(2)Where the housing authority or approved body suspends the reduction of the charged share under subsection (1), the charged share on the dwelling shall be calculated in accordance with the following formula:
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Y x 100 —R Z where— (a) Y is the difference between the purchase price of the dwelling at the time of sale to the purchaser and the purchase money, (b) Z is the purchase price of the dwelling at the time of sale to the purchaser, and (c) R is the portion of the charged share that has been released in accordance with this subsection.
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(3)(a) Where a housing authority or approved body has suspended the reduction of the charged share under subsection (1), the housing authority or approved body, as appropriate, shall, as soon as practicable thereafter, notify the purchaser in writing of the suspension and the reasons for the suspension. (b) The housing authority or approved body, as the case may be, shall, on the expiration of the charged period, give a statement to the purchaser in writing, in the prescribed form, indicating the amount of the charge outstanding under the charging order on the date of expiration of the charged period, which amount shall be expressed as a percentage of the market value of the dwelling, equivalent to the charged share of the housing authority or approved body, as appropriate, in the dwelling on that date calculated in accordance with subsection (2).
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(4)(a) The purchaser shall, within 2 months of receipt of the statement referred to in subsection (3), pay to the housing authority the amount set out in the statement. (b) Where the purchaser fails to pay the amount referred to in paragraph (a), section 46
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(12)applies.
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(5)For the purposes of this section, “ market value ” means the price for which a dwelling might reasonably be expected to be sold on the date of expiration of the charged period, in its existing state of repair and condition and not subject to the conditions specified in section 45
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(2)or to a charging order.
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(6)(a) For the purposes of this section, the market value of a dwelling shall be determined by the housing authority or approved body, as appropriate, or, where the purchaser does not agree with the market value so determined, by an independent valuer nominated by the purchaser from a panel of suitably qualified persons, established by the housing authority, who are of a class or description prescribed under section 49 . (b) The housing authority or approved body shall not be liable for any expenses incurred by the purchaser under paragraph (a).
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Control on resale of dwelling sold under an incremental purchase arrangement.
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48.— (1) Where a purchaser proposes to sell a dwelling which is subject to a charging order which has not been discharged, he or she shall give prior written notice to the housing authority or approved body, as appropriate, in accordance with the terms and conditions specified in the transfer order.
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(2)Upon receipt of a notice referred to in subsection (1), the housing authority or approved body may, subject to subsection (4), purchase the dwelling for a sum equivalent to its market value, reduced by an amount equal to that proportion of the market value of the dwelling corresponding to the charged share in the dwelling on the date of resale.
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(3)Without prejudice to any other power in that behalf, a housing authority or an approved body, as appropriate, may refuse to consent to the sale to any person of the dwelling where the housing authority or an approved body, as the case may be, is of the opinion that— (a) the proposed sale price is less than the market value, (b) the said person is or was engaged in anti-social behaviour or the sale would not be in the interest of good estate management, or (c) the intended sale would, if completed, leave the vendor or any person who might reasonably be expected to reside with him or her without adequate housing.
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(4)Where the housing authority or approved body purchases the dwelling in accordance with subsection (2) and material improvements have been made to the dwelling with the prior written consent of the housing authority or approved body, as appropriate, in accordance with the terms and conditions of the transfer order, the price payable by the authority or approved body shall be the market value of the dwelling, reduced by an amount equal to that proportion of the net market value of the dwelling as corresponds to the charged share of the authority or approved body in the dwelling on the date of its resale.
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(5)Where a purchaser resells a dwelling to a person other than a housing authority or an approved body during the charged period, the purchaser shall pay to the housing authority or approved body concerned an amount equal to a percentage of the market value, such percentage being the equivalent of the charged share of the authority or approved body in the dwelling on the date of resale of the dwelling.
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(6)Where a purchaser resells a dwelling to which material improvements have been made with the prior written consent of the authority or approved body, as appropriate, to a person other than a housing authority or an approved body, the purchaser shall pay to the housing authority or approved body an amount equal to that proportion of the net market value of the dwelling as corresponds to the charged share of the authority or approved body in the dwelling on the date of its resale.
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(7)Where the amount payable under any of the provisions of this section would reduce the proceeds of the sale (disregarding solicitor and estate agent’s costs and fees) below the purchase money, the amount payable under the charging order shall be reduced to the extent necessary to avoid that result.
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(8)(a) Subject to paragraph (b), where a purchaser resells a dwelling which is subject to a charging order the charged period of which has expired and in respect of which the amount referred to in section 47
\n
(3)has not been paid in accordance with that section, section 46
\n
(12)applies. (b) No account shall be taken of any material improvements made to the dwelling after the expiration of the charged period.
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(9)The housing authority may take account of any moneys likely to accrue to an approved body from the sale of dwellings under incremental purchase arrangements when providing assistance to such a body under section 6 of the Act of 1992 in respect of the provision of housing accommodation.
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(10)(a) Subject to paragraph (b), any moneys accruing to an approved body from the sale of a dwelling under an incremental purchase arrangement or the resale of such a dwelling shall be paid to the housing authority for use by the housing authority for the purposes specified in section 13 . (b) Repayment of the moneys referred to in paragraph (a) shall be limited to the extent that those moneys have been taken into account by the housing authority when providing assistance under section 6 of the Act of 1992 in respect of the provision of housing accommodation.
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(11)For the purposes of this section, the current market value of a dwelling shall be determined by the housing authority or the approved body, as appropriate, or, where the vendor does not agree with the market value so determined, by an independent valuer nominated by the vendor from a panel of suitably qualified persons, established by the housing authority, who are of a class or description prescribed under section 49 .
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(12)The housing authority or approved body, as the case may be, shall not be liable for any expenses incurred by a vendor under subsection (11).
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Regulations (Part 3).
\n
49.— The Minister may make regulations in relation to all or any one or more of the following: (a) the class or classes of dwelling to which incremental purchase arrangements may apply; (b) the class of classes of households with whom incremental purchase arrangements may be entered into; (c) the method for determining the purchase price of a dwelling which method may— (i) differentiate between different classes of dwelling, and (ii) take account of the age of the dwelling; (d) the method for determining the purchase money taking account of the financial circumstances of households with whom incremental purchase arrangements may be entered into; (e) the determination of the minimum period, or the range within which a housing authority shall fix the minimum period, for which a charging order shall apply in respect of a dwelling sold under an incremental purchase arrangement, which period shall not in any case be less than 20 years from the date of the transfer order; (f) in the case of an approved body, the reservation by it of a specified number or proportion of newly-constructed dwellings provided with the assistance of a housing authority under section 6 of the Act of 1992; (g) the form and manner of, and terms and conditions to be specified in, a transfer order and a charging order; (h) the class or classes or description of persons who are suitably qualified by reference to their qualifications and experience to determine the market value of a dwelling or site, as the case may be, for the purposes of this Part; (i) the form of the statement for the purposes of sections 46
\n
(5)and 47
\n
(3); (j) such other matters as the Minister considers necessary and appropriate relating to incremental purchase arrangements.
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PART 4
\n
TENANT PURCHASE OF APARTMENTS Interpretation (Part 4).
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50.— (1) In this Part— “ apartment ” means a separate and self-contained dwelling in an apartment complex which requires arrangements for the upkeep and management of all or any part of the common areas, structures, works or services other than by the owner of the apartment; “ apartment assignment order ” has the meaning given to it by section 64
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(2); “ apartment complex ” means land on which there stands erected a building or buildings, comprising or together comprising not less than 5 apartments (but not including any community apartment) and the common areas, structures, works and services; “ apartment complex service charge ” has the meaning given to it by section 67
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(1)and “ service charge ” shall be construed accordingly; “ apartment complex support fund ” has the meaning given to it by section 70 ; “ apartment complex transfer order ” has the meaning given to it by section 59 ; “apartment owner” , in relation to an apartment (including a community apartment) in a designated apartment complex, means, subject to section 65
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(1)(b)— (a) an apartment purchaser, or (b) the housing authority, in the case of an apartment which has not been sold by the housing authority— (i) under section 90 of the Principal Act, whether before or after the coming into operation of this Part, or (ii) under this Part and any regulations made thereunder; “ apartment purchaser ” means, subject to section 76 , a person who purchases an apartment under this Part and includes a person in whom there subsequently becomes vested the interest of the apartment purchaser or his or her successor in title and the personal representative of that person or successor in title and references to “purchaser” shall be construed accordingly; “ apartment transfer order ” has the meaning given to it by section 60 ; “ charging order” has the meaning given to it by section 74 ; “ charged period” has the meaning given to it by section 74 ; “ charged share” has the meaning given to it by section 74 ; “ common areas, structures, works and services ” means, in relation to an apartment complex, areas, structures, works and services that are, or are intended to be, common to apartments (including community apartments) in the apartment complex and enjoyed therewith, including where relevant access and side roads, architectural features, circulation areas, footpaths, internal common stairways, open spaces, parking areas, utility rooms and that portion of the roof or exterior of any building not intended to form or not forming part of any individual apartment; “ community apartment ” means an apartment in an apartment complex that is authorised by the housing authority to be used for activities for the common benefit or enjoyment of the occupiers of apartments in the apartment complex; “ current market value ” means the price for which an apartment might reasonably be expected to be sold, on the open market, on the date of sale under section 76 , in its existing state of repair and condition and not subject to the conditions specified in section 64
\n
(5)or to a charging order; “ designated apartment complex ” has the meaning given to it by section 55
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(1); “ financial year ”, in relation to a management company, means a period of 12 months ending on 31 December in any year, and, in the case of the first financial year of a management company, means the period commencing on the expiry of the period specified in section 63
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(1)and ending on 31 December next following; “ initial selling period” has the meaning given to it by section 56
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(2); “ management company ” has the meaning given to it by section 57
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(2); “ management company annual charges” has the meaning given to it by section 69 ; “ member ” means a member of the management company; “ property management services ” means services in respect of the management of an apartment complex carried out on behalf of a management company, and such services include— (a) administrative services, and (b) the procurement of or any combination of the maintenance, servicing, repair, improvement or insurance of the apartment complex or any part or parts of the apartment complex; “ purchase money ”, in relation to an apartment, means the monetary value of the proportion of the purchase price of the apartment fixed by the housing authority, in accordance with regulations made under section 77 for the purposes of calculating the purchase money, as the proportion that is required to be paid to purchase the apartment; “ purchase price ”, in relation to an apartment, means the price of the apartment determined by a housing authority in accordance with regulations made under section 77 for the purposes of calculating the purchase price; “section 53 proposal” has the meaning given to it by section 53 ; “ sell ”, in relation to an apartment, means to sell or assign a leasehold estate or interest; “ sinking fund ” has the meaning given to it by section 68
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(1); “ sinking fund contribution ” has the meaning given to it by section 68
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(3); “ tenant ” means the tenant of an apartment pursuant to a tenancy agreement between the household and a housing authority.
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(2)Save where otherwise provided for by this Part— (a) references in this Part to an apartment, shall not include a community apartment, and (b) references in this Part to a tenant, shall not include any tenant of a community apartment.
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(3)In this Part, save where the context otherwise requires, a reference to a transfer of ownership shall be construed as a reference to a deed of transfer, conveyance or assignment.
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Consideration of designation of apartment complex.
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51.— (1) Subject to and in accordance with this Part and any regulations made thereunder, a housing authority may propose to designate an apartment complex for the purpose of making all of the apartments comprised therein, in respect of which the housing authority is the apartment owner, available for sale to the tenants thereof, under this Part and any regulations made thereunder, where the housing authority is satisfied that the conditions specified in subsection (2) are met.
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(2)The conditions referred to in subsection (1) are that— (a) the housing authority considers that the sale of the apartments concerned is consistent with good estate management and management of its overall dwelling stock in accordance with the policy objectives set out in its housing services plan relating to the management and maintenance of dwellings owned by the housing authority, (b) the apartment complex is suitable for designation having regard to, but not necessarily limited to, the following— (i) the configuration of the apartment complex by reference to its design and layout and to the common areas, structures, works and services, (ii) the annual cost of managing and maintaining the apartment complex and providing for future capital works to preserve and improve the apartment complex, and (iii) the number of apartments available for sale, (c) the housing authority is satisfied, in a case where structural work has been carried out on the apartment complex within the previous 10 years or, in any other case, where a survey of the structural condition of the apartment complex has been carried out within the previous 5 years, that the apartment complex is in good structural condition, order and repair, (d) with respect to the apartment complex concerned, neither the housing services plan nor the housing action programme contain— (i) proposals to carry out reconstruction or improvement works by virtue of section 12 of the Act of 1988, or (ii) plans for the regeneration of the area in which the apartment complex is situated, (e) good and marketable title may be transferred to a management company under section 59 for the purposes of this Part, and (f) none of the apartments in the apartment complex is of a class excluded from sale under this Part by regulations made under section 77 .
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Preparation of draft proposal to designate apartment complex.
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52.— (1) Where a housing authority proposes to designate an apartment complex, the housing authority shall prepare a draft proposal, which shall— (a) specify the apartment complex which it is proposed to designate, (b) include information relating to the arrangements for— (i) holding a tenant plebiscite in respect of the proposed designation of the apartment complex within 3 months of the adoption by the housing authority of a section 53 proposal, (ii) transferring ownership of the apartment complex to a management company, (iii) the sale of apartments in the apartment complex to the tenants of those apartments, (iv) managing and maintaining the common areas, structures, works and services in the apartment complex, and (v) funding expenditure of a type referred to in section 68
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(1), (c) include information relating to the terms and conditions of sale of an apartment in the apartment complex to the tenant thereof, including— (i) the obligation to pay the management company annual charges and the estimated level thereof in the first year after purchase, (ii) the restrictions on resale of an apartment by an apartment purchaser, and (iii) the covenants in the apartment assignment order and the consequences for the apartment purchaser of failure to observe same, (d) include information relating to the performance by the housing authority of its functions in respect of apartments in the apartment complex the subject of tenancy agreements between the housing authority and the tenants thereof, (e) set out indicative figures for the projected purchase price and purchase money for the different classes of apartment in the apartment complex, and (f) include any other information that the authority considers relevant to the draft proposal.
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(2)The housing authority shall— (a) publish and maintain on the Internet a copy of a draft proposal under this section to designate an apartment complex, (b) make the draft proposal available for inspection on request by any person, without charge, at its offices and such other places as it considers appropriate during normal office hours, (c) give notice of the draft proposal to— (i) each tenant of an apartment in the apartment complex, and (ii) each member of the housing authority.
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(3)A housing authority shall take such steps as it considers appropriate for the purposes of informing tenants and seeking their views about a draft proposal under this section to designate an apartment complex including but not limited to— (a) the holding of an information meeting or meetings about the draft proposal, and (b) arranging to meet with individual tenants, as appropriate, on request, regarding the draft proposal.
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(4)For the purposes of subsection (1) (a), the draft proposal may include a map that clearly indicates the boundaries, common areas, structures, works and services of the apartment complex concerned.
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Proposal to designate apartment complex.
\n
53.— (1) Where, subject to the conditions specified in section 51
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(2)continuing to be satisfied and having regard to the views of the tenants concerned expressed at information meetings or otherwise under section 52
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(3), the manager decides to proceed with the proposal to designate the apartment complex, the manager shall submit the draft proposal to the members of the housing authority with or without such modifications as the manager considers appropriate.
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(2)Where the manager decides not to proceed with the proposal to designate an apartment complex— (a) because any condition specified in section 51
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(2)is no longer satisfied, (b) having regard to the views of the tenants concerned expressed at information meetings or otherwise under section 52
\n
(3), or (c) for any other reason, the manager shall advise the tenants concerned and the members of the housing authority of his or her decision and the reasons for that decision.
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(3)The housing authority may, with or without modification, adopt the draft proposal, submitted to it under subsection (1), to designate the apartment complex (in this Part referred to as a “section 53 proposal ”).
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(4)The adoption under this section of a section 53 proposal is a reserved function.
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Tenant plebiscite.
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54.— (1) Where a housing authority adopts a section 53 proposal, it shall hold a tenant plebiscite in respect of the apartment complex concerned within the period specified in the proposal and in accordance with this section and any regulations made thereunder for the purpose of ascertaining the level of— (a) support for the designation of the apartment complex, and (b) willingness of tenants who purchase apartments in the apartment complex under this Part to serve as directors of the management company.
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(2)(a) Subject to paragraph (b), each apartment in the apartment complex concerned shall be afforded one vote in the plebiscite. (b) Where an apartment has been sold by the housing authority under section 90 of the Principal Act, whether before or after the coming into operation of this Part, the apartment shall not be included for the purposes of a tenant plebiscite under this section.
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(3)A vote under subsection (2) may only be exercised— (a) by the tenant of the apartment at the time of the plebiscite, and (b) by completing and returning a ballot paper in the form and manner prescribed under subsection (6).
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(4)In the case of an apartment where there are 2 or more tenants— (a) they shall be considered as one tenant for the purposes of subsection (3) (a), (b) they are not entitled to vote in the plebiscite unless a majority of them concurs, and (c) unless the vote is signed by a majority of them, it shall be disregarded for the purposes of the plebiscite.
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(5)Not later than 2 months after the adoption of the proposal to designate the apartment complex, the housing authority shall send to the tenants concerned, by ordinary post or any other means that may be prescribed under subsection (6), all ballot papers for completion under subsection (3) together with a copy of the section 53 proposal and any other explanatory material it considers relevant.
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(6)The Minister may make regulations— (a) relating to and governing the conduct of a tenant plebiscite, (b) prescribing the form of a ballot paper under this section and the manner in which it is to be completed and returned, and (c) prescribing means other than post for the delivery and return of ballot papers under this section.
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Designation of apartment complex.
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55.— (1) Where, following the holding of a tenant plebiscite, the conditions specified in section 51
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(2)continue to be met, and subject to the conditions specified in subsection (2) being satisfied, the housing authority may designate the apartment complex (in this Part referred to as a “ designated apartment complex ”) in accordance with the section 53 proposal.
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(2)The conditions referred to in subsection (1) are that— (a) the number of votes in favour of the designation of the apartment complex equals or exceeds 65 per cent of the number of tenants entitled to vote at the plebiscite, and (b) the number of voters who indicate at the plebiscite that, if designation proceeds and they purchase their apartments, they are willing to serve as directors of the management company equals or exceeds the greater of— (i) the minimum number of tenants specified in column (2) of the Table to this subsection opposite the entry in column (1) of the class of apartment complex corresponding to the class of the apartment complex concerned, or (ii) the number (rounded up to the nearest higher whole number) of tenants represented by the minimum proportion of all tenants specified in column (3) of the said Table opposite the said entry in column (1).
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TABLE Class of apartment complex determined by the number of apartments comprised therein of which the housing authority is the apartment owner
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(1)Minimum number of tenants in apartment complex willing to serve as directors of management company
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(2)Minimum proportion of all tenants in apartment complex willing to serve as directors of management company
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(3)Apartment complex comprising not more than 9 apartments 3 60% Apartment complex comprising 10 to 19 apartments 6 40% Apartment complex comprising 20 to 29 apartments 8 None Apartment complex comprising 30 to 59 apartments 9 None Apartment complex comprising 60 apartments or more 10 None
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(3)Where an apartment complex is designated under subsection (1), the designation lapses if no apartment is sold by the housing authority under this Part before the expiry of the initial selling period.
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(4)The designation of an apartment complex is a reserved function.
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Initial selling period.
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56.— (1) A housing authority shall, within 6 months of designating an apartment complex under section 55 , by written notice given to each tenant of an apartment in the apartment complex, invite him or her to submit to the authority an application to purchase the apartment.
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(2)Apartments in a designated apartment complex shall be available for sale under this Part to the tenants thereof during the period (in this Part referred to as the “ initial selling period ”) beginning on the date specified in subsection (3) and ending on the later of the following— (a) 3 years from the date on which the initial selling period begins, or (b) 5 years from the date on which the initial selling period begins in a case where the housing authority, before the expiry of the period specified in paragraph (a), extends that period for a further period of 2 years where it is satisfied that the sales of at least the minimum number of apartments available for sale in the designated apartment complex, calculated in accordance with section 64
\n
(4), will proceed during any such extended period.
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(3)The specified date for the purposes of subsection (2) is the date of the first occasion following designation of the apartment complex under section 55 on which the housing authority, pursuant to an application referred to in subsection (1), provides to a tenant the necessary information, documentation, particulars of title and terms and conditions of sale relating to the apartment concerned together with information and documentation relating to the management company.
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(4)The extension of the initial selling period for the purposes of subsection (2) (b) is a reserved function.
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(5)The manager shall arrange for the establishment of a management company under section 57 where the manager is satisfied that— (a) the sales are ready to proceed, during the initial selling period, of at least the minimum number of apartments available for sale in the designated apartment complex calculated in accordance with subsection (6), and (b) in relation to those sales that are ready to proceed as referred to in paragraph (a), the number of tenants of the apartments concerned that have indicated their willingness to serve as directors of the management company equals or exceeds half of the minimum number of apartments calculated in accordance with subsection (6).
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(6)The minimum number of apartments for the purposes of subsection (5) (a) is calculated as the greater of— (a) the minimum number of apartments specified in column (2) of the Table to this subsection opposite the entry in column (1) of the class of apartment complex corresponding to the class of the designated apartment complex concerned, and (b) the minimum number (rounded up to the nearest higher whole number) of tenants represented by the minimum proportion of all apartments in the designated apartment complex concerned specified in column (3) of the said Table opposite the said entry in column (1).
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TABLE Class of apartment complex determined by the number of apartments comprised therein of which the housing authority is the apartment owner
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(1)Minimum number of apartment sales
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(2)Minimum proportion of all apartments in apartment complex
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(3)Apartment complex comprising not more than 19 apartments 2 35% Apartment complex comprising 20 or more apartments 7 30%
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(7)For the purposes of subsection (5) and section 64
\n
(3), a sale is ready to proceed where, in accordance with the terms and conditions of sale, the tenant has— (a) signed the apartment assignment order, (b) paid such deposit as is payable to the housing authority in respect of the purchase concerned, and (c) provided to the housing authority written notice of loan approval or otherwise established, to the satisfaction of the housing authority, his or her capacity to pay the balance of the purchase money on the completion of the sale to him or her.
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Establishment and objects of management company.
\n
57.— (1) In this section references to an apartment include a community apartment.
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(2)A housing authority shall, in relation to a designated apartment complex, establish a company (in this Part referred to as a “ management company ”) to achieve the principal objects specified in subsections (5) and (6) which shall be a company formed and registered under the Companies Acts and limited by— (a) shares, where there are not more than 6 apartments in the designated apartment complex concerned, or (b) guarantee, where there are more than 6 apartments in the designated apartment complex.
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(3)The name of every management company shall be comprised of the name of the designated apartment complex concerned and the words “owners’ management company” which words may be abbreviated to “OMC”.
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(4)The memorandum and articles of association of a management company shall be in such form consistent with this Act as may be determined by the housing authority.
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(5)The principal objects of a management company shall be stated in its memorandum of association to be as follows: (a) to take a transfer of ownership of a designated apartment complex in accordance with an apartment complex transfer order; (b) in the case of apartments in the designated apartment complex which have not been sold by the housing authority under section 90 of the Principal Act, whether before or after the coming into operation of this Part, to grant a lease or sublease of the apartments to the housing authority in accordance with an apartment transfer order; (c) to manage, control and maintain the common areas, structures, works and services in accordance with section 63
\n
(3); (d) to carry out its functions in accordance with this Part.
\n
(6)Subsection (5) does not prevent or restrict the inclusion of objects and powers that are— (a) reasonably necessary, proper for or incidental or ancillary to attaining the principal objects referred to in subsection (5), and (b) not inconsistent with this Part or any other enactment.
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(7)The articles of association shall include provision for— (a) the levying and collection annually of an apartment complex service charge and a charge in respect of the sinking fund contribution, and (b) the covenants and agreements relating to the designated apartment complex and the apartments comprised therein.
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Annual meetings and reports of management company.
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58.— (1) A management company shall— (a) prepare and furnish to each member an annual report which complies with subsection (2), and (b) hold a meeting at least once in each year for purposes which include the consideration of the annual report referred to in paragraph (a).
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(2)An annual report of a management company shall include: (a) a statement of income and expenditure relating to the period covered by the report; (b) a statement of the assets and liabilities of the company; (c) a statement of the funds standing to the credit of the sinking fund; (d) a statement of the amount of the apartment complex service charge and the basis of such charge in respect of the period covered by the report; (e) a statement of the projected or agreed apartment complex service charge relating to the current period; (f) a statement of any planned expenditure on refurbishment, improvement or maintenance of a non-recurring nature which it is intended to carry out in the current period; (g) a statement of the insured value of the designated apartment complex, the amount of the premium charged, the name of the insurance company with which the policy of insurance is held and a summary of the principal risks covered; and (h) a statement fully disclosing any contracts entered into or in force between the management company and a director or shadow director of the company or a person who is a connected person as respects that director or shadow director.
\n
(3)At least 21 days written notice of the meeting referred to in subsection (1) (b) shall be given to each member.
\n
(4)A copy of the annual report referred to in subsection (1) (a) shall be given to each member at least 10 days before the meeting referred to in subsection (1) (b).
\n
(5)The meeting referred to in subsection (1) (b) shall take place within reasonable proximity to the designated apartment complex and at a reasonable time (unless otherwise agreed by 75 per cent majority vote of the members).
\n
(6)The obligations of a management company under this section are in addition to any other obligation or duty of such company whether arising under an Act, statutory instrument, by rule of law or otherwise.
\n
(7)For the purposes of subsection (2) (h), “ shadow director ” and “ connected person ” have the same meanings as they have in the Companies Acts.
\n
Transfer of ownership of designated apartment complex to management company.
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59.— (1) As soon as practicable after the establishment of the management company under section 57 the housing authority shall, for nominal consideration transfer its ownership of the apartment complex (including its interest in any apartment sold under section 90 of the Principal Act whether before or after the coming into operation of this Part) to the management company by means of an order (in this Part referred to as an “ apartment complex transfer order ”), in the prescribed form, made by the housing authority, which order shall be expressed and shall operate to vest, on the date specified in the order, the interest specified therein, subject as therein provided and to the terms and conditions specified in subsection (2).
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(2)The terms and conditions referred to in subsection (1) include the following— (a) that the management company shall, on the date specified in the apartment complex transfer order or as soon as practicable thereafter, lease or sublease, as the case may be, each apartment (including any community apartment) in the designated apartment complex to the housing authority in accordance with this Part other than any apartments sold by the housing authority under section 90 of the Principal Act whether before or after the coming into operation of this Part, (b) that the transfer of ownership under subsection (1) is subject to— (i) the tenancy agreements between the housing authority and the tenants of the apartments concerned entered into before the date of the apartment complex transfer order, and (ii) any lease entered into between the housing authority before the date of the apartment complex transfer order for the purpose of the sale of an apartment in the designated apartment complex under section 90 of the Principal Act whether before or after the coming into operation of this Part, (c) that the consent of the management company shall not be required in respect of the sale or letting of apartments by the housing authority under the Housing Acts 1966 to 2009, (d) that the management company shall, where the designation of an apartment complex lapses under section 55
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(3), comply with the requirements of section 61 , (e) such other terms and conditions as may be prescribed for the purposes of an apartment complex transfer order.
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(3)Save as provided for by any other enactment or regulations made thereunder, the transfer of ownership of a designated apartment complex to a management company under this section shall not imply any warranty on the part of the housing authority in relation to the state of repair or condition of the apartment complex or the fitness for human habitation of the apartments concerned.
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Lease of apartment to housing authority.
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60.— (1) In this section, in the case of a designated apartment complex in respect of which a leasehold interest is assigned to the management company for the purposes of section 59 , a reference to a lease includes a sublease.
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(2)Subject to and in accordance with this section, as soon as practicable after the date specified in the apartment complex transfer order for the purposes of section 59
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(1), the management company shall, for nominal consideration, grant a lease to the housing authority in respect of each apartment (including any community apartment) in the designated apartment complex, by means of an order (in this Part referred to as an “ apartment transfer order ”) in the prescribed form, made by the management company, which shall be expressed and shall operate to vest, on the date specified in the order, the interest specified therein, subject as therein provided and to the terms and conditions specified in subsection (3).
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(3)The terms and conditions referred to in subsection (2) include the following— (a) that the housing authority may, without the consent of the management company— (i) sell the apartment, under this Part, to a tenant thereof, or (ii) without prejudice to any tenancy agreement entered into between the housing authority and a tenant of the apartment concerned before the date specified in the apartment transfer order for the purposes of subsection (2), let the apartment in accordance with and in the performance of its functions under the Housing Acts 1966 to 2009, (b) that the housing authority shall not, without the prior written consent of the management company make material improvements to the apartment, (c) the condition specified in section 69
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(3)relating to payment of the management company annual charges in respect of the apartment and the consequences of failing to pay, (d) that the management company shall, where the designation of an apartment complex lapses under section 55
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(3), comply with the requirements of section 61 , (e) terms and conditions relating to membership of the management company, and (f) such other terms and conditions relating to the lease of an apartment to the housing authority under this section as may be prescribed for the purposes of an apartment transfer order.
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(4)This section does not apply to any apartment in a designated apartment complex sold by a housing authority under section 90 of the Principal Act whether before or after the coming into operation of this Part.
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(5)In this section “ material improvements ” means improvements made to an apartment whether for the purposes of extending, enlarging or converting the apartment but does not include internal decoration and repair.
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Consequences of designation lapsing under section 55 .
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61.— (1) Where the designation of an apartment complex lapses under section 55
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(3), the housing authority shall notify the management company in writing and the management company shall, as soon as practicable after receipt of the notification— (a) terminate the leases granted to the housing authority in respect of each apartment in accordance with the terms and conditions of the apartment complex transfer order and the apartment transfer order; (b) transfer ownership of the apartment complex to the housing authority, subject to any lease referred to in section 59
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(2)(b) (ii), and (c) arrange for the winding up of the management company in accordance with the Companies Acts.
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(2)Where the designation of an apartment complex lapses under section 55
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(3)and subject to compliance by the management company with the requirements of subsection (1), the housing authority shall continue to perform its functions under the Housing Acts 1966 to 2009 relating to the management and control of the apartment complex.
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Costs incurred by management company.
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62.— A housing authority shall reimburse a management company established by it in respect of such reasonable and vouched expenses as may be incurred by the management company in the performance of its functions under sections 59 , 60 and 61 .
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Management, control and maintenance of designated apartment complex.
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63.— (1) Notwithstanding the transfer of ownership of a designated apartment complex to a management company under section 59 , the housing authority shall manage and control the designated apartment complex in the performance of its functions under the Housing Acts 1966 to 2009, for the period beginning on the date specified in the apartment complex transfer order for the purposes of section 59
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(1)and ending on the date of the first sale of an apartment in the apartment complex to the tenant thereof.
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(2)The management company shall pay to the housing authority as soon as practicable after receipt thereof any charges paid to the management company in respect of the period specified in subsection (1) by any person to whom an apartment in the designated apartment complex was sold under section 90 of the Principal Act whether before or after the coming into operation of this Part.
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(3)On the date of the first sale under this Part of an apartment in a designated apartment complex to the tenant thereof the management company shall, in relation to the common areas, structures, works and services in the designated apartment complex, in accordance with its memorandum and articles of association ensure the effective management and maintenance of the common areas, structures, works and services, and without prejudice to the generality of the foregoing, ensure that the designated apartment complex functions effectively and otherwise comply with the obligations imposed on the management company under and in accordance with this Part and the apartment complex transfer order.
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Sale by housing authority of apartments to tenants.
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64.— (1) In this section, in the case of an apartment in respect of which a sublease is granted to the housing authority for the purposes of section 60 , a reference to a lease includes a sublease.
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(2)Subject to and in accordance with this Part and the Housing Acts 1966 to 2004 and subject to such regulations as may be made under section 77 , a housing authority may, subject to subsections (3) and (4), in consideration of the receipt by the housing authority of the purchase money, sell an apartment, of which it is the apartment owner, in a designated apartment complex, in the state of repair and condition existing on the date of sale, to the tenant of the apartment (in this Part referred to as an “ apartment purchaser ”) by assignment of the lease granted to the housing authority under section 60 by means of an order (in this Part referred to as an “ apartment assign ment order ”), in the prescribed form, made by the housing authority, which shall be expressed and shall operate to vest, on the date specified in the order, the interest specified in the order, in accordance with and subject to the terms and conditions specified in subsection (5) and the terms and conditions of a charging order.
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(3)The manager shall not sign the apartment assignment order for the sale to a tenant under this Part of the first apartment in a designated apartment complex where— (a) the initial selling period has expired, or (b) he or she is not satisfied that the sales are ready to proceed (within the meaning of section 56
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(7)) within 4 weeks of the date of signing the assignment order of at least the minimum number of apartments available for sale in the designated apartment complex, calculated in accordance with subsection (4), or (c) the number of tenants of the apartments referred to in paragraph (b) who have indicated a willingness to serve as directors of the management company is less than half of the minimum number of apartments calculated in accordance with subsection (4).
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(4)The minimum number of apartments for the purposes of subsection (3) (b) includes the first apartment referred to in subsection (3) and is calculated as the greater of— (a) the minimum number of apartments specified in column (2) of the following Table opposite the entry in column (1) of the class of apartment complex corresponding to the class of the designated apartment complex concerned, or (b) the minimum number (rounded up to the nearest higher whole number) of tenants represented by the minimum proportion of all apartments specified in column (3) of the following Table opposite the said entry in column (1).
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TABLE Class of apartment complex determined by the number of apartments comprised therein of which the housing authority is the apartment owner
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(1)Minimum number of apartment sales
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(2)Minimum proportion of all apartments in apartment complex
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(3)Apartment complex comprising not more than 19 apartments 2 30% Apartment complex comprising 20 or more apartments 6 25%
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(5)The terms and conditions referred to in subsection (2) shall include the following— (a) that the apartment shall, during the charged period, unless the housing authority gives its prior written consent, be occupied as the normal place of residence of the apartment purchaser or of a member of the apartment purchaser’s household; (b) that the apartment or any part thereof shall not, during the charged period without the prior written consent of the housing authority, be sold, assigned, let or sublet or otherwise disposed of or mortgaged, charged or alienated, otherwise than by devise or operation of law; (c) terms and conditions relating to the resale of the apartment under section 76 during the charged period; (d) such other terms and conditions relating to the sale of an apartment as may be prescribed for the purposes of an apartment assignment order.
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(6)A tenant who applies to purchase his or her apartment under this Part shall, on or before signing the apartment assignment order, pay to the housing authority a deposit of an amount determined in accordance with such method as may be prescribed under section 77 which deposit, subject to subsection (7), shall not be refundable if the tenant withdraws from the sale for any reason at any time before the expiration of 6 months from the date on which he or she signs the order.
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(7)Where a housing authority does not proceed with the sale of an apartment for any reason, the housing authority shall— (a) notify the tenant in writing, (b) refund any deposit paid by the tenant and reimburse the tenant in respect of such reasonable legal expenses as may be incurred by him or her in respect of the proposed purchase of the apartment by him or her under this Part, and (c) pay to the tenant interest on the amount of the deposit refunded under paragraph (b) at the rate prescribed under section 33 for the period beginning on the date the tenant signed the apartment assignment order and ending on the date on which the housing authority notifies the tenant that it is not proceeding with the purchase.
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(8)Save as provided for by any other enactment or regulations made thereunder, the sale of an apartment under this Part to a tenant shall not imply any warranty on the part of the housing authority in relation to the state of repair or condition of the apartment or its fitness for human habitation.
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(9)A housing authority shall not proceed with the sale of an apartment under this Part to the tenant thereof— (a) where— (i) at any time during the 3 years immediately before applying to the authority to purchase an apartment under this Part, the tenant was in arrears of rent for an accumulated period of 12 weeks or more in respect of the apartment or any other dwelling or site let to him or her by any housing authority under the Housing Acts 1966 to 2009 or provided under Part V of the Planning and Development Act 2000 , and (ii) the housing authority has not entered into an arrangement under section 34 with the tenant for the payment of the moneys due and owing to the housing authority in respect of those arrears, (b) where, on the basis of any structural survey of the apartment complex or of an individual apartment that may be carried out after the date of the designation of the apartment complex under section 55 , the authority considers that it is not in the interest of good estate management to proceed with the sale, (c) where the authority is not satisfied, having regard to the provisions of section 65
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(5), that the number of existing and prospective apartment purchasers willing to serve as directors of the management company is sufficient to enable the company to function effectively, or (d) where the designation of the apartment complex for tenant purchase has lapsed under section 55
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(3).
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(10)
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Section 211
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(2)of the Planning and Development Act 2000 and section 183 of the Local Government Act 2001 shall not apply to the sale of an apartment to a tenant in accordance with this Part.
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Management company provisions.
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65.— (1) In this section— (a) references to an apartment include a community apartment, and (b) references to an apartment owner include— (i) a person to whom an apartment in a designated apartment complex was sold under section 90 of the Principal Act whether before or after the coming into operation of this Part, and (ii) a person in whom there subsequently becomes vested the interest of the person referred to in subparagraph (i) or his or her successor in title and the personal representative of that person or successor in title.
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(2)Each apartment owner shall be a member of the management company.
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(3)(a) The voting rights of the members shall be structured in such a manner that in the determination of any matter by the members one vote shall attach to each apartment owner in respect of each apartment in the designated apartment complex to which the management company relates, and that no other person has such a vote. (b) Each vote referred to in paragraph (a) shall be of equal value.
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(4)Where 2 or more persons are joint apartment owners they shall constitute one member in respect of the exercise of the voting and other powers vested in such member.
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(5)According as apartments in a designated apartment complex are sold to tenants under this Part, a housing authority shall, subject to subsection (6), nominate for election as directors of the management company such number of persons which, when expressed as a proportion of the total number of directors of the company that will be serving after the election is concluded, does not exceed the proportion of the total number of apartments in the designated apartment complex of which the housing authority is the apartment owner.
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(6)A housing authority may decide not to nominate any person for election as a director of the management company where the number of apartments of which the housing authority is the apartment owner is equal to or less than 20 per cent of the total number of apartments in the designated apartment complex.
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Automatic transfer of membership of management company on sale of apartment.
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66.— (1) Where ownership of an apartment in a designated apartment complex is transferred, whether by conveyance, transfer, assignment, by operation of law or otherwise, membership of the management company which arises by virtue of ownership of the apartment shall, notwithstanding any provision to the contrary in the Companies Acts or other enactment, on such transfer stand transferred to the person becoming entitled to the interest in the apartment 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) subject to subsection (3), be obliged to perform all the obligations (including the payment of the apartment complex service charge, the charge in respect of the sinking fund contribution and any other charges) pertaining to the membership of the company concerned.
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(2)Notwithstanding subsection (1) a 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 an apartment, (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.
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(3)This section is without prejudice to the rights, entitlements and obligations of any person to whom an apartment in a designated apartment complex was sold under section 90 of the Principal Act, whether before or after the coming into operation of this Part including a person in whom there subsequently becomes vested the interest of such person or his or her successor in title and the personal representative of that person or successor in title.
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Apartment complex service charge.
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67.— (1) Before the end of the period specified in section 63
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(1), and thereafter before the end of the first month of each financial year, the management company shall prepare an estimate of the amount to be raised, in respect of the financial year concerned, by way of an annual charge or charges (in this Part referred to as the “ apartment complex service charge ”) payable by apartment owners, being the amount required to discharge ongoing expenditure reasonably incurred on the insurance, maintenance (including cleaning and waste management services) and repair of the common areas, structures, works and services of the designated apartment complex concerned and on the provision of common or shared services to the apartment owners and occupiers of the designated apartment complex.
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(2)The management company shall prepare the estimate referred to in subsection (1) by reference to the actual or projected expenditure for the financial year in respect of which the service charge is to be levied.
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(3)The estimate referred to in subsection (1) shall include the following categories: (a) insurance; (b) general maintenance; (c) repairs; (d) waste management; (e) cleaning; (f) gardening and landscaping; (g) security services; (h) legal services and accounts preparation; and (i) other expenditure anticipated to arise in connection with the maintenance, repair and management of the common areas anticipated to arise.
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(4)The apartment complex service charge for each financial year shall not be levied by the management company unless it has been considered by a general meeting of the members called for purposes which include the consideration of the estimate referred to in subsection (1).
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(5)The general meeting referred to in subsection (4) shall take place within reasonable proximity to the designated apartment complex and at a reasonable time (unless otherwise agreed by a 75 per cent majority vote of the members).
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(6)(a) The proposal in relation to the setting of the apartment complex service charge may be amended at the meeting referred to in subsection (4) with the approval of a 60 per cent majority vote of the members present and voting at the meeting. (b) Where the apartment complex service charge proposed to the general meeting is disapproved of by not less than a 75 per cent majority vote of the members present and voting at the meeting, the proposed apartment complex service charge shall not take effect but the apartment complex service charge applying to the previous financial year shall continue to apply pending the adoption of an apartment complex service charge in respect of the financial year concerned.
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(7)The amount of the apartment complex service charge shall as soon as practicable after its adoption under this section be levied by the management company as a charge on each apartment in the designated apartment complex, the proportion of the apartment complex service charge attributable to any apartment being the same as the proportion which the floor area of that apartment, determined in the prescribed manner, bears to the aggregate floor area of all apartments in the designated apartment complex.
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(8)(a) In the case of a designated apartment complex where the housing authority has sold one or more than one apartment under section 90 of the Principal Act, whether before or after the coming into operation of this Part, the management company shall— (i) determine the net amount of the apartment complex service charge by deducting from the amount of the apartment complex service charge for the financial year concerned the amount of its estimated service charge receipts for the current financial year from the apartment owners of the apartments so sold under the terms and conditions of the transfer orders in respect of the sales of those apartments, (ii) excluding the apartments so sold from the calculation and subject to the prior approval of the Minister, apportion the net amount of the apartment complex service charge between each of the other apartments in the designated apartment complex by the method of apportionment provided for in the said transfer orders, and (iii) levy the amount so apportioned in respect of each of those other apartments in the designated apartment complex as a charge on such apartment. (b) The Minister shall not approve the method of apportionment referred to in paragraph (a) (ii) where he or she is not satisfied that such method is equitable as between the apartments referred to in paragraph (a) (iii). (c) Where the Minister does not approve the method of apportionment referred to in paragraph (a) (ii), the management company shall, excluding the apartments so sold under section 90 of the Principal Act from the calculation, apportion the net amount of the apartment complex service charge between each of the other apartments in the designated apartment complex by the method of apportionment specified in subsection (7).
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(9)(a) To the extent that any part of the apartment complex service charge is not required for the year concerned, any excess shall be taken account of in setting the apartment complex service charge for the following year. (b) To the extent that the apartment complex service charge is inadequate for the expenditure in the year concerned, the extent of such inadequacy may be added to the apartment complex service charge otherwise payable in respect of the following year.
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(10)The management company shall maintain sufficient and proper records of expenditure incurred by it to enable appropriate verification and audits to be undertaken.
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(11)The apartment complex service charge levied pursuant to this section shall be applied for the purposes specified in subsection (1) but any excess may, notwithstanding subsections (2) or (9), be applied on expenditure which may be incurred by the sinking fund.
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(12)The Minister may make regulations prescribing the class or classes of items of expenditure which may be the subject of the apartment complex service charge.
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Sinking fund.
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68.— (1) Before the end of the period specified in section 63
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(1), the management company shall establish a building investment fund (in this Part referred to as a “ sinking fund ”) for the purpose of discharging expenditure reasonably incurred, in respect of the designated apartment complex concerned on— (a) refurbishment, (b) improvement, (c) maintenance of a non-recurring nature, or (d) advice from a suitably qualified person relating to paragraphs (a) to (c).
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(2)For the purposes of subsection (1), expenditure shall not be considered to be expenditure on maintenance of a non-recurring nature— (a) where the expenditure relates to a matter in respect of which expenditure is generally incurred in each year, (b) unless it is certified by the directors of the management company as being expenditure on maintenance of a non-recurring nature, and (c) unless the expenditure is approved by a meeting of the members as being expenditure on maintenance of a non-recurring nature.
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(3)(a) Before the end of the period specified in section 63
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(1), and thereafter before the end of the first month of each financial year, the management company shall, subject to paragraph (b) prepare an estimate of the sum of moneys (referred to in this Part as the “sinking fund contribution” ) that it considers appropriate and prudent for addition to the sinking fund in the financial year concerned and, applying the method of apportionment specified in subsection (4) (a) or (b), as appropriate, calculate the amount equal to the proportion of the sinking fund contribution that would be attributable to each apartment in the designated apartment complex. (b) The management company shall not prepare an estimate of the sinking fund contribution for the financial year concerned which, when apportioned between each apartment in the designated apartment complex in accordance with paragraph (a), results in the smallest amount attributable to any apartment being less than €200 or such other amount as may be prescribed for the purposes of this subsection. (c) If, under the calculation set out in paragraph (a), the smallest amount attributable to any apartment in the designated apartment complex is equal to €200 or such other amount as may be prescribed for the purposes of this subsection, the management company may adopt its estimate under paragraph (a) as the sinking fund contribution for the financial year concerned. (d) If under the calculation specified in paragraph (a), the smallest amount attributable to any apartment in the apartment complex is more than €200 or such other amount as may be prescribed for the purposes of this subsection, the sinking fund contribution for the financial year shall be adopted by a general meeting of members called for those purposes, provided that such contribution, when apportioned between each apartment in the designated apartment complex on the same basis as the apartment complex service charge, does not result in the smallest amount attributable to any apartment being less than €200 or such other amount as may be prescribed for the purposes of this subsection.
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(4)The amount of the sinking fund contribution shall, as soon as practicable after its determination, be levied by the management company as a charge on each apartment in the designated apartment complex, the amount being apportioned between each apartment in the designated apartment complex on the same basis as the apartment complex service charge is apportioned— (a) in accordance with section 67
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(7), or (b) in the case of a designated apartment complex where the housing authority has sold one or more than one apartment under section 90 of the Principal Act, in accordance with section 67
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(8).
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(5)The contributions made to the sinking fund shall be held in a separate account and in a manner which identifies such funds as belonging to the sinking fund and those funds shall not be used or expended on matters other than expenditure of a type referred to in subsection (1).
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(6)The Minister may make regulations prescribing all or any one or more of the following: (a) a class or classes of expenditure which may be incurred by a sinking fund; (b) thresholds of expenditure (by reference to amounts of expenditure or by reference to the proportion of the sinking fund) which necessitate approval of the members; (c) any other amount for the purposes of subsection (3) having regard to the average level of service charges in designated apartment complexes.
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Management company annual charges.
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69.— (1) A management company may issue a single request for payment of the aggregate of the charges arising under sections 67 and 68 , and every request for payment, whether in reliance on this section or on section 67 or 68 shall set out the basis of the calculation of the charge, a breakdown of how it is calculated and the amount payable in respect of the apartment concerned.
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(2)Where payment of charges arising under sections 67 and 68 are requested or collected together such charges may collectively be referred to as “ management company annual charges ”.
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(3)It shall be a condition of the apartment transfer order and the apartment assignment order that— (a) the apartment owner shall pay the management company annual charges of such amount or amounts and at such times and in such manner as the management company may specify subject to and in accordance with the terms and conditions of the apartment transfer order or the apartment assignment order, as the case may be, and (b) where the apartment owner fails to comply with the obligation in paragraph (a), the management company shall have the right to re-enter and take possession of the apartment, whereupon the term of the apartment transfer order or the apartment assignment order, as the case may be, shall end, without prejudice to the rights and remedies of the company in respect of any such charge in arrears or of any other breach of the apartment transfer order or apartment assignment order.
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(4)Where the management company annual charges or part thereof remain unpaid by the apartment owner on the expiration of the period for payment specified in the apartment transfer order or apartment assignment order, as the case may be, the amount concerned shall bear interest, at the rate provided for therein and calculated in accordance therewith.
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(5)Where, during the charged period, the management company annual charges or part thereof remain unpaid by the apartment purchaser concerned for a period of more than 6 months after the expiry of the period for payment of the charge specified in the apartment assignment order, the management company shall notify the housing authority in writing.
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(6)Where a housing authority sells an apartment to the tenant thereof under this Part, it shall not be liable, in respect of any period after the date on which the housing authority signs the apartment assignment order, for the management company annual charges for the proportion of the financial year remaining after that date or for any financial year thereafter.
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Apartment complex support fund.
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70.— (1) Subject to subsection (3), on the first sale of an apartment in a designated apartment complex to the tenant thereof under this Part, the housing authority shall establish, maintain and account for a fund (referred to in this Part as an “ apartment complex support fund ”) for the purposes set out in subsection (4).
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(2)(a) The housing authority shall, on the establishment of the apartment complex support fund, pay into the fund an amount fixed in accordance with paragraph (b). (b) The amount referred to in paragraph (a) shall be calculated as the sum of the prescribed proportion of the purchase price on the date of the first sale referred to in subsection (1) of each apartment in the designated apartment complex, including community apartments and any apartments sold to tenants under section 90 of the Principal Act whether before or after the coming into operation of this Part, which proportion shall not exceed the greater of— (i) 5 per cent of such purchase price, or (ii) such amount as may be prescribed for the purposes of this section having regard to the number and size of the apartments comprised in the designated apartment complex concerned.
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(3)The moneys referred to in subsection (2) in respect of one or more than one designated apartment complex may be held in, managed and accounted for by a housing authority in a single apartment complex support fund, provided that the funding for each such apartment complex is capable of being separately identified.
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(4)The housing authority, in accordance with this section, on a request being made in that behalf by the management company and subject to there being sufficient moneys in the apartment complex support fund, may decide to transfer moneys from the apartment complex support fund to the company’s sinking fund to meet expenditure by, or on behalf of, the management company on any of the works referred to in section 68
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(1)(a) to (c).
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(5)(a) Where a request is made under subsection (4), the management company shall, as the housing authority may reasonably require for the purpose of deciding whether to transfer moneys from the apartment complex support fund to the sinking fund— (i) provide details (including drawings and estimated costs) of the proposed works, (ii) provide financial and other information (including the company’s records relating to management, maintenance and repair of the common areas, structures, works and services), and (iii) carry out, or facilitate the housing authority in carrying out, inspections, surveys and tests. (b) The reasonable costs incurred by the management company in meeting the requirements of a housing authority under this subsection shall be paid by the housing authority.
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(6)A housing authority may refuse to transfer moneys under subsection (4) where it is of the opinion that any of the following applies: (a) the works proposed are not in the interest of good estate management; (b) the management company is not in a position to meet the cost of the works, from its own resources, including the sinking fund, moneys which it has requested under subsection (4) from the apartment complex support fund and borrowings; (c) the works proposed are necessary because of the management company’s failure to discharge its obligations under section 63
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(3), whether this failure is attributable to the company’s failure to levy or collect an adequate apartment complex service charge in one or more than one financial year, or otherwise; (d) the moneys may be used by the management company for purposes other than the carrying out of the works proposed, including eliminating or reducing any excess of expenditure over income (but not including the sinking fund) on the management company’s accounts.
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(7)Where a housing authority decides to transfer moneys under subsection (4) it may do all or any of the following— (a) transfer from the apartment complex support fund the amount requested by the management company under subsection (4) or an amount less than that so requested; (b) attach such conditions as it considers appropriate to its decision including conditions specifying— (i) the works to be carried out, (ii) the works not to be carried out, (iii) the standard of the works to be carried out, and (iv) the timing and content of reports to be given to the housing authority in relation to the works carried out; (c) transfer same to the sinking fund of the management company in such instalments and at such times as the housing authority considers reasonable having regard to the progress of the works concerned.
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(8)The management company in carrying out any of the works referred to in section 68
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(1)(a) to (c) shall comply with such conditions if any as may be attached under subsection (7) (b) to the decision to transfer moneys under subsection (4).
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(9)(a) The housing authority may, for the purpose of establishing that the moneys transferred under subsection (4) were used for the purpose for which they were intended and in compliance with the conditions attached under subsection (7) (b) to its decision to transfer moneys, carry out such further inspections, surveys and tests of the works concerned as it considers necessary. (b) The management company shall facilitate the housing authority in the carrying out of the inspections, surveys and tests referred to in paragraph (a) and, if requested by the authority, shall itself carry out such inspections, surveys and tests of the works concerned, as the housing authority considers necessary, the reasonable cost of which shall be paid by the housing authority.
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(10)(a) The management company shall be liable to repay to the housing authority— (i) in case of its failure to use all or any of the moneys transferred under subsection (4) for the purpose for which they were intended, the entire of such moneys or such part thereof, as the case may be, or (ii) in case of a breach of one or more than one condition attached by the authority under subsection (7) (b) to its decision to transfer moneys under subsection (4), that proportion of the amount of the transferred moneys corresponding to the cost of complying with the condition or conditions concerned expressed as a proportion of the total cost of carrying out the works in respect of which the authority agreed to so transfer moneys. (b) Any moneys due and owing to the housing authority under paragraph (a) shall, subject to section 71 , be repaid by the management company not later than 2 months after the date on which the authority demands repayment from the management company by notice in writing specifying the matters giving rise to the demand for repayment and the amount concerned. (c) Any moneys repaid by a management company to a housing authority under this subsection shall be paid into the apartment complex support fund.
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(11)The housing authority may recoup from the apartment complex support fund such reasonable expenses as it may incur in the exercise of its functions under this section.
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(12)The apartment complex support fund shall consist of a current account (in this section referred to as the “ current account ”) and an investment account (in this section referred to as the “ invest ment account ”).
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(13)The housing authority shall pay into the current account, from time to time, the amount that the authority determines is required for the purposes of— (a) transferring moneys to a sinking fund under this section, and (b) defraying the costs incurred by the authority— (i) under subsection (5) (b), (9) or (11), as the case may be, and (ii) in the performance of its functions under this section relating to management of the apartment complex support fund.
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(14)All other moneys standing to the credit of the apartment complex support fund shall be paid into the investment account.
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(15)Whenever the moneys in the current account are insufficient to meet the liabilities of the apartment complex support fund specified in subsection (13), there shall be paid into that account from the investment account the moneys that are necessary to meet those liabilities.
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(16)Moneys in the investment account that are not required to meet current and prospective liabilities of that account shall be invested and the investments shall be realised or varied from time to time as occasion requires and the proceeds of any such realisation, and any dividends or other payments received in respect of moneys invested under this paragraph, shall be paid into the investment account or invested under this subsection.
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(17)An investment under subsection (16) shall be invested in the State and in the currency of the State— (a) in the securities (other than shares in a company) that the housing authority considers appropriate, or (b) by way of deposit of moneys with any credit institution, or the investment of moneys in short term financial products, such as certificates of deposit or commercial paper, issued by any person.
\n
Dispute between housing authority and management company arising under section 70
\n
(10).
\n
71.— (1) Where there is a dispute between the housing authority and the management company on any matter relating to a demand for repayment under section 70
\n
(10), which is subsequently resolved by agreement in writing between the housing authority and the management company, repayment of the amount concerned or any revised amount shall be made by the management company not later than 2 months after the date of the agreement.
\n
(2)Where there is a dispute between the housing authority and the management company relating to the demand for repayment under section 70
\n
(10)in respect of a breach of a condition attached under section 70
\n
(7)(b) to its agreement to transfer moneys under section 70
\n
(4), subject to the agreement of the parties in writing, the dispute may be resolved by the management company agreeing to carry out, at its expense, such additional works as are agreed by the parties to be necessary to secure compliance with the condition concerned.
\n
(3)Where there is a dispute between the housing authority and the management company on any matter or matters relating to the demand for repayment under section 70
\n
(10), which cannot be resolved to the satisfaction of both parties, the matter shall be determined by conciliation procedures agreed between both parties or, in default of such agreement, by arbitration under the Arbitration Acts 1954 to 1998.
\n
Accounts of management company.
\n
72.— (1) A management company shall keep all proper and usual books or other accounts of— (a) all moneys received or expended by it, and (b) all property, assets and liabilities of the management company, including an income and expenditure account and a balance sheet.
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(2)Without prejudice to the generality of subsection (1), a management company shall establish, operate and maintain financial systems, accounts, reporting and record keeping procedures, including the preparation of annual financial statements, which are based on generally accepted accounting principles and practices.
\n
(3)A management company shall— (a) submit to the housing authority concerned a copy of its annual audited accounts no later than 4 months after the end of each financial year of the management company to which the accounts relate, and (b) on the request of any member, provide a copy of those accounts at a price not exceeding the reasonable cost of reproduction.
\n
(4)Subsection (3) (a) shall cease to apply in respect of the financial year following the financial year in which the sale of an apartment results in the total number of all apartments in the designated apartment complex that are sold exceeding by one the total number, divided by 2, of apartments (including any community apartment) in the designated apartment complex, rounded up to the nearest whole number, as appropriate.
\n
Property services agreement.
\n
73.— (1) In this section “ specified body ” means— (a) the housing authority which transferred ownership of the designated apartment complex to the management company under an apartment complex transfer order, (b) a company referred to in subsection (6), or (c) an approved body.
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(2)Subject to subsection (3), a management company and a specified body may enter into an agreement (in this Part referred to as a “ property services agreement ”) for the purposes of the provision of such property management services, as may be specified in the agreement, to the management company in respect of the designated apartment complex.
\n
(3)In the case of a property services agreement between a management company and a housing authority the agreement shall be for such period not exceeding 5 years from the date of the first sale of an apartment to the tenant thereof under this Part in the designated apartment complex concerned.
\n
(4)A property services agreement shall be in writing and shall be subject to the terms and conditions and include the information specified in Schedule 4.
\n
(5)The expenses incurred by a specified body in the provision of property management services pursuant to a property services agreement, shall be recouped to the specified body by the management company in accordance with the terms and conditions of the agreement.
\n
(6)A housing authority may, for the purposes of this section, establish a company whose objects include the provision of property management services to management companies, which company shall be a company formed and registered under the Companies Acts.
\n
Charging order.
\n
74.— (1) As soon as practicable after an apartment is sold to an apartment purchaser under this Part, the housing authority shall, subject to such regulations as may be made under section 77 , make an order (in this Part referred to as a “ charging order ”), in the prescribed form, charging the apartment in the terms specified in this section for the period specified in the order (in this Part referred to as the “ charged period ”).
\n
(2)The charging order shall create a charge in favour of the housing authority in respect of an undivided percentage share (in this Part referred to as the “ charged share ”), calculated in accordance with subsection (3), in the apartment which charged share shall be reduced in accordance with subsection (4).
\n
(3)The charged share is calculated in accordance with the following formula:
\n
Y x 100 Z where— (a) Y is the difference between the purchase price of the apartment at the time of sale to the apartment purchaser and the purchase money, and (b) Z is the purchase price of the apartment at the time of sale to the apartment purchaser.
\n
(4)(a) Subject to paragraph (b) and section 75 , the charged share shall be reduced in equal proportions (referred to in this section as “ incremental releases ”) applied annually on the anniversary of the date of the apartment assignment order in respect of each complete year after that date during which an apartment purchaser or a member of his or her household has been in occupation of the apartment as his or her normal place of residence, until the earlier of— (i) subject to section 76 , the first resale of the apartment, or (ii) subject to section 75 , the expiration of the charged period. (b) The reduction of the charged share for the period of 5 years from the date of the apartment assignment order shall be cumulative and shall not apply until the expiration of that period, provided the apartment purchaser or a member of his or her household has been in occupation of the apartment as his or her normal place of residence for that period.
\n
(5)The housing authority shall, at any time where requested by the apartment purchaser, give a statement in writing in the prescribed form, to the apartment purchaser indicating the accumulated amount of incremental releases that have been applied under the charging order.
\n
(6)A charging order shall be deemed to be a mortgage made by deed within the meaning of the Conveyancing Acts 1881 to 1911 and to have been executed, at the time of the sale of the apartment, in favour of the housing authority for a charge in the terms provided for in this section.
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(7)Accordingly, the housing authority shall, as on and from the making of the charging order— (a) be deemed to be a mortgagee of the apartment for the purposes of the Conveyancing Acts 1881 to 1911, and (b) have, in relation to the charge referred to in subsection (8), all the powers conferred by those Acts on mortgagees under mortgages made by deed.
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(8)Where a housing authority makes a charging order, it shall, as soon as practicable thereafter, cause the order to be registered in the Registry of Deeds or the Land Registry, as appropriate, and it shall be a sufficient description of the charge in respect of which the order is being registered to state that charge to be the charge referred to in section 74
\n
(2)of the Housing (Miscellaneous Provisions) Act 2009.
\n
(9)A charging order affecting an apartment which is registered land within the meaning of the Registration of Title Act 1964 shall be registrable as a burden affecting such land whether the person named in the order as the owner of the land is or is not registered under the said Act as the owner of the land.
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(10)A housing authority may, subject to subsection (11), enter into an agreement with a holder of a licence under the Central Bank Act 1971 , a building society or other financial institution that a charge proposed to be created by it by a charging order shall have a priority, as against a mortgage or charge proposed to be created in favour of that holder, society or institution, that is different from the priority the charge would otherwise have if this subsection had not been enacted.
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(11)A housing authority may only enter into an agreement referred to in subsection (10) if it considers that the agreement will— (a) enable a tenant to whom it is proposing to sell an apartment under this Part to obtain an advance of moneys from the holder, society or institution referred to in subsection (10) for the purposes of purchasing the apartment, or (b) enable an apartment purchaser— (i) to refinance an existing advance of moneys from the holder, society or institution referred to in subsection (10), or (ii) to obtain a further advance of moneys from the holder, society or institution referred to in subsection (10), for any purpose.
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(12)Any amount that becomes payable to a housing authority under section 75 or 76 , as the case may be, may, without prejudice to any other power in that behalf, be recovered by the housing authority from the person concerned as a simple contract debt in any court of competent jurisdiction.
\n
(13)For the avoidance of doubt, neither a charging order nor a charge that arises under it shall be regarded as a conveyance for the purposes of section 3 of the Family Home Protection Act 1976 .
\n
(14)(a) On the occurrence of the earlier of the events specified in subsection (4)(a) and subject to the terms and conditions of the apartment assignment order and of the charging order having been complied with, the housing authority shall, where requested to do so by the apartment purchaser, execute a deed of discharge in respect of the charging order. (b) The housing authority shall be liable for any expenses incurred in the execution and registration of a deed of discharge but shall not otherwise be liable for any expenses incurred by an apartment purchaser under this section or under section 75 or 76 .
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Suspension of reduction of charged share.
\n
75.— (1) A housing authority may suspend the reduction of the charged share provided for under section 74 in respect of any year ending on the anniversary of the apartment assignment order, where the apartment purchaser fails to comply with any of the terms and conditions of the apartment assignment order.
\n
(2)Where the housing authority suspends the reduction of the charged share under subsection (1), the charged share on the property shall be calculated in accordance with the following formula:
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Y x 100 - R Z where— (a) Y is the difference between the purchase price of the apartment at the time of sale to the apartment purchaser and the purchase money, (b) Z is the purchase price of the apartment at the time of sale to the apartment purchaser, and (c) R is the portion of the charged share that has been released in accordance with this subsection.
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(3)(a) Where a housing authority has suspended the reduction of the charged share under subsection (1), the housing authority shall, as soon as practicable thereafter, notify the apartment purchaser in writing of the suspension and the reasons for the suspension. (b) The housing authority shall, on the expiration of the charged period, give a statement to the apartment purchaser in writing, in the prescribed form, indicating the amount of the charge outstanding under the charging order on the date of expiration of the charged period, which amount shall be expressed as a percentage of the market value of the apartment, equivalent to the charged share of the housing authority in the apartment on that date calculated in accordance with subsection (2).
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(4)(a) The apartment purchaser shall, within 2 months of receipt of the statement referred to in subsection (3), pay to the housing authority the amount set out in the statement. (b) Where the apartment purchaser fails to pay the amount referred to in paragraph (a), section 74
\n
(12)applies.
\n
(5)For the purposes of this section, “ market value ” means the price for which an apartment might reasonably be expected to be sold on the date of expiration of the charged period, in its existing state of repair and condition and not subject to the conditions specified in section 64
\n
(5)or to a charging order.
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(6)(a) For the purposes of this section, the market value of an apartment shall be determined by the housing authority or, where the apartment purchaser does not agree with the market value so determined, by an independent valuer nominated by the apartment purchaser from a panel of suitably qualified persons, established by the housing authority, who are of a class or description prescribed under section 77 . (b) The housing authority shall not be liable for any expenses incurred by an apartment purchaser under paragraph (a).
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Control on resale of apartment subject to a charging order.
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76.— (1) In this section references to an apartment purchaser shall not include a person in whom there subsequently becomes vested, for valuable consideration, the interest of the apartment purchaser or the successor in title of that person and the personal representative of that person or successor in title.
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(2)Where an apartment purchaser proposes to sell an apartment during the charged period, he or she shall give prior written notice to the housing authority in accordance with the terms and conditions specified in the apartment assignment order.
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(3)Upon receipt of a notice referred to in subsection (2), the housing authority may purchase the apartment for a sum equivalent to its current market value, reduced by an amount equal to that proportion of the current market value of the apartment corresponding to the charged share in the apartment on the date of resale.
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(4)Without prejudice to any other power in that behalf, a housing authority may refuse to consent to the sale to any person of the apartment where the housing authority is of the opinion that— (a) the proposed sale price is less than the current market value, (b) the said person is or was engaged in anti-social behaviour or the sale would not be in the interest of good estate management, or (c) the intended sale would, if completed, leave the vendor or any person who might reasonably be expected to reside with him or her without adequate housing.
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(5)Where an apartment purchaser resells an apartment to a person other than a housing authority during the charged period the apartment purchaser shall pay to the housing authority an amount equal to a percentage of the current market value, such percentage being the equivalent of the charged share of the authority in the apartment on the date of resale of the apartment.
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(6)Where the amount payable under any of the provisions of this section would reduce the proceeds of the sale (disregarding solicitor and estate agent’s costs and fees) below the purchase money, the amount payable under the charging order shall be reduced to the extent necessary to avoid that result.
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(7)Where a purchaser resells an apartment which is subject to a charging order the charged period of which has expired and in respect of which the amount referred to in section 75
\n
(3)has not been paid in accordance with that section, section 74
\n
(12)applies.
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(8)(a) For the purposes of this section, the current market value of an apartment shall be determined by the housing authority or, where the vendor does not agree with the current market value so determined, by an independent valuer nominated by the vendor from a panel of suitably qualified persons, established by the housing authority, who are of a class or description prescribed under section 77 . (b) The housing authority shall not be liable for any expenses incurred by a vendor under paragraph (a).
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Regulations (Part 4).
\n
77.— The Minister may make regulations for the purposes of this Part in relation to all or any one or more of the following: (a) the class or classes of apartment that are excluded from sale under this Part; (b) the minimum period for which a person must be a tenant for the purposes of making an application to purchase an apartment under this Part, which period shall not in any case be less than one year before the date of the making of such application; (c) the method for determining the purchase price; (d) the method for determining the purchase money, taking account of the financial circumstances of tenants to whom apartment may be sold; (e) the method for determining the amount of a deposit to be paid by the apartment purchaser under section 64
\n
(6)in respect of the purchase of an apartment under this Part; (f) the form of, and terms and conditions to be specified in, an apartment complex transfer order, an apartment transfer order and an apartment assignment order; (g) the form of a charging order; (h) the determination of the minimum period, or the range within which a housing authority shall fix the minimum period, for which a charging order shall apply in respect of an apartment sold under this Part, which period shall not in any case be less than 20 years from the date of the apartment assignment order; (i) the determination of the floor area of an apartment, for the purpose of section 67
\n
(7); (j) the proportion of the sum of the purchase price of each apartment in the designated apartment complex that a housing authority shall pay into the apartment complex support fund under section 70
\n
(2)and the maximum amount that it shall pay into the fund under that provision; (k) the form of the statement to be issued by a housing authority under section 74
\n
(5)or 75
\n
(3), as the case may be; (l) the class or classes or description of person who are suitably qualified by reference to their qualifications and experience to determine the current market value or market value (within the meaning of section 75 ), as the case may be, of an apartment for any of the purposes of this Part.
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PART 5
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AFFORDABLE DWELLING PURCHASE ARRANGEMENTS Interpretation (Part 5).
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78.— (1) In this Part— “ affordable dwelling ” has the meaning given to it by section 82 ; “ Affordable Dwellings Fund ” has the meaning given to it in section 94 ; “ affordable dwelling purchase arrangement ” has the meaning given to it by section 83 ; “ charging order ” has the meaning given to it by section 86 ; “ charged period ” has the meaning given to it by section 86 ; “ direct sales agreement ” has the meaning given to it by section 80 ; “ eligible household ” means a household assessed by a housing authority under section 84 as being eligible for an affordable dwelling purchase arrangement; “ market value ”, in relation to an affordable dwelling, means the price for which the dwelling might reasonably be expected to be sold on the open market; “ net market value ” means the market value reduced by an allowance equal to the amount of the market value attributable to material improvements; “ open market dwelling ” has the meaning given to it by section 81 ; “ Part V agreement ” has the meaning given to it by section 80 ; “ purchase money ”, in relation to an affordable dwelling, means the monetary value of the proportion of the purchase price of the dwelling fixed by the housing authority as the proportion that is required to be paid by an eligible household to purchase the dwelling under an affordable dwelling purchase arrangement; “ purchaser ” means a person who purchases an affordable dwelling under an affordable dwelling purchase arrangement and includes a person in whom there subsequently becomes vested (other than for valuable consideration) the interest of the purchaser or his or her successor in title and the personal representative of that person or successor in title; “ scheme of priority ” has the meaning given to it by section 85 .
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(2)In this Part save where the context otherwise requires, a reference to a transfer of ownership shall be construed as a reference to a deed of transfer, conveyance or assignment.
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(3)(a) Material improvements to an apartment shall not be taken into account for any of the purposes of this Part. (b) In this subsection “ apartment ” means a separate and self-contained dwelling in a premises, divided into 2 or more such apartments, which requires arrangements for the upkeep and management of all or any part of the common areas, structures, works or services other than by the purchaser.
\n
Provision of dwellings.
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79.— (1) A housing authority may make dwellings available for the purpose of sale to eligible households under affordable dwelling purchase arrangements and may, in accordance with the Housing Acts 1966 to 2009 and regulations made thereunder, acquire, build or cause to be built, or otherwise provide or facilitate the provision of, dwellings for that purpose.
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(2)A housing authority may, for the purposes of subsection (1), enter into— (a) arrangements with an approved body, or (b) public private partnership arrangements.
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(3)The Minister may, with the consent of the Minister for Finance, pay, out of moneys provided by the Oireachtas, a grant towards the cost of making dwellings available under this section to all or any of the following: (a) a housing authority, in respect of dwellings made available by the authority or provided by an approved body or other person on behalf of the authority; (b) the Affordable Homes Partnership (established pursuant to the Affordable Homes Partnership (Establishment) Order 2005 ( S.I. No. 383 of 2005 )), in respect of affordable dwellings acquired or provided by it on behalf of housing authorities; (c) such other body, established by or under statute, as the Minister may prescribe by order for the purposes of this section whose functions include the provision of services to a housing authority in relation to the acquisition of dwellings.
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(4)In performing its functions under subsection (1), a housing authority shall have regard to its housing services plan and the need to— (a) counteract undue segregation in housing between persons of different social backgrounds, and (b) ensure that a mixture of dwelling types and sizes is provided to reasonably match the requirements of eligible households.
\n
Direct sales agreement.
\n
80.— (1) This section applies to the following persons— (a) a person with whom the housing authority has a contract for the provision of dwellings for the purposes of section 79 , (b) a public private partnership with whom the housing authority has entered into an arrangement under section 79
\n
(2)(b) for the provision of dwellings for the purposes of that section, and (c) a person with whom the planning authority has entered into an agreement under section 96
\n
(2)of Part V of the Planning and Development Act 2000 for the provision of dwellings referred to in section 94(4)(a) of that Act (in this Part referred to as a “ Part V agreement ”).
\n
(2)A housing authority, pursuant to its functions under section 79 , or a planning authority, pursuant to its functions under Part V of the Planning and Development Act 2000 , may enter into an agreement (in this Part referred to as a “ direct sales agreement ”) with a person to whom this section applies for the direct sale, in accordance with this Part, of the dwellings specified in the agreement to eligible households nominated by the housing authority in accordance with a scheme of priority.
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(3)A direct sales agreement shall provide that a person to whom this section applies may carry out any necessary transactions in relation to the direct sale, in accordance with this Part, of the dwellings specified in the agreement to eligible households, subject to the terms and conditions specified in subsection (4).
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(4)The terms and conditions referred to in subsection (3)— (a) shall include the following: (i) that the sale price for each dwelling specified in the agreement shall be the purchase money; (ii) that the dwellings specified in the agreement shall be sold directly to eligible households nominated by the housing authority in accordance with a scheme of priority; (iii) terms and conditions relating to— (I) arrangements for the completion of sales, (II) notification of sales to the housing authority, and (III) any other matters relating to the sale of the dwellings specified in the agreement to eligible households, and (b) may include such other terms and conditions relating to the transactions referred to in subsection (3) as may be prescribed for the purposes of affordable dwelling purchase arrangements.
\n
(5)In the case of a Part V agreement, where the total amount due under a direct sales agreement to a person referred to in subsection (1) (c) is less than the amount due to such person under the Part V agreement, the amount of any such difference shall be paid by the housing authority to that person.
\n
Open market dwelling.
\n
81.— (1) A housing authority may, subject to the Housing Acts 1966 to 2009, and regulations made thereunder, provide financial assistance to an eligible household to purchase a dwelling (in this Part referred to as an “ open market dwelling ”) under an affordable dwelling purchase arrangement, subject to the dwelling being— (a) available for purchase in the State, and (b) of a class of dwelling prescribed under section 95
\n
(1)(a) for the purposes of this section.
\n
(2)The amount of financial assistance which may be provided to an eligible household under this section in respect of the purchase of an open market dwelling— (a) shall be the difference between the purchase money and the market value of the dwelling, and (b) shall not exceed such maximum amount as the Minister may prescribe under section 95
\n
(1)(d).
\n
Application of Part 5.
\n
82.— This Part applies to the following dwellings (in this Part referred to as “ affordable dwellings ”): (a) dwellings made available by a housing authority under section 79 ; (b) dwellings to which a Part V agreement applies, including dwellings made available for sale under such an agreement but not yet sold before the coming into operation of this Part; (c) dwellings made available for sale in accordance with Part 2 of the Act of 2002 but not yet sold before the coming into operation of this Part and section 7 (in so far as it applies to the said Act); (d) open market dwellings.
\n
Affordable dwelling purchase arrangements.
\n
83.— (1) A housing authority may, in accordance with this Part and the Housing Acts 1966 to 2004 and subject to such regulations as may be made under section 95 , enter into an arrangement (in this Part referred to as an “ affordable dwelling purchase arrangement ”) for the sale of an affordable dwelling under this Part to an eligible household in accordance with a scheme of priority.
\n
(2)The arrangements referred to in subsection (1) are as follows: (a) in the case of an affordable dwelling which is the subject of a direct sales agreement, in consideration of the receipt of the purchase money specified in the agreement, the dwelling may be sold to an eligible household in accordance with and subject to the terms and conditions specified in subsection (3), the terms and conditions of a charging order and such other terms and conditions as may be prescribed for the purposes of affordable dwelling purchase arrangements; (b) in the case of an affordable dwelling referred to in section 82 (a), (b), or (c), in consideration of the receipt by the housing authority of the purchase money, the housing authority shall transfer its ownership in the dwelling by means of an order (in this Part referred to as a “ transfer order ”), in the prescribed form, made by the housing authority which shall be expressed and shall operate to vest, on the date specified in the transfer order, the interest specified in the order, in accordance with and subject to the terms and conditions specified in subsection (3), the terms and conditions of a charging order and such other terms and conditions as may be prescribed for the purposes of affordable dwelling purchase arrangements; (c) in the case of an open market dwelling, the provision by the housing authority of financial assistance under section 81 to an eligible household to purchase the dwelling subject to the terms and conditions specified in subsection (3), the terms and conditions of a charging order and such other terms and conditions as may be prescribed for the purposes of affordable dwelling purchase arrangements.
\n
(3)The terms and conditions referred to in subsection (2)— (a) shall include the following: (i) that where the purchaser sells the dwelling during the charged period, the purchaser shall pay to the housing authority an amount calculated in accordance with section 90 ; (ii) that the dwelling shall, during the charged period, unless the housing authority gives its prior written consent, be occupied as the normal place of residence of the purchaser or of a member of the purchaser’s household; (iii) that the dwelling or any part thereof shall not, during the charged period, without the prior written consent of the housing authority, be let or sublet; (iv) terms and conditions relating to the making of payments under section 87 , 89 or 90 , as the case may be, and the consequences for the purchaser of failure to make those payments, and (b) may include the following: (i) that the dwelling or any part thereof shall not, during the charged period, without the prior written consent of the housing authority, be sold, assigned or otherwise disposed of or mortgaged, charged or alienated, otherwise than by devise or operation of the law; (ii) terms and conditions relating to the payment by the eligible household of a deposit of such amount as may be prescribed under section 95
\n
(1)(e) (ii).
\n
(4)Save as provided for by any other enactment or regulations made thereunder, the sale of a dwelling under an affordable dwelling purchase arrangement referred to in subsection (2) (a) shall not imply any warranty on the part of the housing authority concerned in relation to the state of repair or condition of the dwelling or its fitness for human habitation.
\n
(5)
\n
Section 211
\n
(2)of the Planning and Development Act 2000 and section 183 of the Local Government Act 2001 shall not apply to the sale of a dwelling to an eligible household under an affordable dwelling purchase arrangement.
\n
(6)Nothing in this Part shall preclude a housing authority from making a loan under section 11 of the Act of 1992 to an eligible household for any of the purposes of this Part.
\n
Assessment of eligibility of household for affordable dwelling purchase arrangement.
\n
84.— (1) A reference in this section to a household shall be read as including a reference to 2 or more persons who, in the opinion of the housing authority concerned, have a reasonable requirement to live together.
\n
(2)Where a household applies to a housing authority to purchase an affordable dwelling under an affordable dwelling purchase arrangement, the housing authority shall, subject to and in accordance with this section and any regulations made under this section and section 95 , carry out an assessment of the household’s eligibility for an affordable dwelling purchase arrangement taking account of the following: (a) the accommodation needs of the household, having regard to, but not necessarily limited to the following— (i) the current housing circumstances of the household, (ii) the distance of such preferred location or locations as the household may indicate in its application from the place of employment of any member of the household, and (iii) whether any members of the household are attending any university, college, school or other educational establishment in the administrative area concerned; (b) subject to subsection (3), whether the income of the household is adequate to meet the repayments on a mortgage for the purchase of a dwelling to meet the accommodation needs of the household because the payments calculated over the course of a year would exceed 35 per cent of the annual income of the household net of income tax and pay related social insurance; (c) subject to subsections (4) and (5), whether the household or any household member has previously purchased or built a dwelling for his or her occupation or for any other purpose in the State; (d) subject to subsections (4) and (5), whether the household or any household member either owns, or is beneficially entitled to, an interest in any dwelling or land in the State or elsewhere.
\n
(3)For the purposes of subsection (2) (b), any other assets of the household which could be used to defray all or any part of the cost of providing accommodation to meet the accommodation needs of the household shall be taken into account.
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(4)Where the household making an application for the purposes of this section, or any member of the household, was a spouse to a marriage the subject of a deed of separation, a decree of judicial separation, a decree of divorce or a decree of nullity, subsection (2) (c) shall not apply, provided that, in relation to the former family home (within the meaning of the Family Home Protection Act 1976 ), the spouse concerned— (a) has not retained an interest in that home, and (b) immediately before the date of the deed of separation or decree concerned is not beneficially entitled to an interest in a dwelling other than the said family home.
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(5)Where, having regard to its accomodation needs referred to in subsection (2) (a), a household requires to relocate to either a different dwelling or administrative area or both, subsection (2) (c) shall not render the household ineligible for an affordable home purchase arrangement where the household— (a) has previously purchased a dwelling under an affordable dwelling purchase arrangement, or (b) before the coming into operation of this Part, purchased a dwelling referred to in section 82 (b) or (c).
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(6)For the purposes of subsection (2) (b), “ mortgage ” means a loan (other than a loan made for the purposes of the purchase of an affordable dwelling referred to in section 82 (d)) for the purchase of a dwelling secured by a mortgage in an amount not exceeding 90 per cent of the market value of the dwelling.
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(7)The Minister may make regulations providing for the means by which the eligibility of households for an affordable dwelling purchase arrangement shall be assessed including, but not necessarily limited to, the following: (a) the procedures to be applied by a housing authority for the purposes of assessing a household’s eligibility by reference to income and other financial circumstances having regard to subsections (2) (b), (3), (4) and (5); (b) having regard to the different classes of household in the administrative area concerned and the different classes of dwellings purchased by first-time purchasers in that administrative area and the average market value of those dwellings, the methodology according to which the housing authority shall determine, for the purposes of subsection (2) (b), the purchase price of a dwelling suitable to a household’s accommodation needs; (c) the availability to the household of alternative accommodation that would meet its accommodation needs; (d) any affordable dwelling or other housing support previously provided by any housing authority to the household which may be taken account of by a housing authority in making an assessment of eligibility under this section.
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Scheme of priority for affordable dwelling purchase arrangements.
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85.— (1) A housing authority shall, not later than one year after the coming into operation of this Part, in accordance with this section and regulations made thereunder, make a scheme (in this Part referred to as a “ scheme of priority ”) determining the order of priority to be accorded to eligible households in relation to— (a) the sale of affordable dwellings referred to in section 82 (a), (b) and (c) where the demand for such dwellings exceeds the number of such dwellings available for the purposes of this Part, and (b) the provision of financial assistance under section 81 to eligible households to purchase open market dwellings where the demand for such financial assistance exceeds the financial resources available to the housing authority to provide such assistance.
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(2)The Minister may make regulations providing for the matters to be included in a scheme of priority, including the following: (a) the manner in which affordable dwellings are made available or, in the case of open market dwellings, financial assistance is provided under section 81 to different classes of eligible households including— (i) the nomination of eligible households to dwellings the subject of a direct sales agreement, and (ii) the determination of the suitability of the dwellings by reference to size and location, having regard to the circumstances of eligible households, including but not necessarily limited to, family and financial circumstances; (b) the classification of eligible households for the purposes of subsection (3); (c) the order of priority in accordance with which affordable dwellings are sold or, in the case of open market dwellings, financial assistance is provided under section 81 to eligible households, including the priority as between eligible households who fall within the same classification referred to in paragraph (b), taking account of— (i) the period that has elapsed since the eligibility of the household was assessed under section 84 for an affordable dwelling purchase arrangement, (ii) any preferences of the eligible household in respect of the type of dwelling and its location, (iii) the income or other financial circumstances of the eligible household, and (iv) the period for which the eligible household has resided in the administrative area of the housing authority; (d) such other matters as the Minister considers necessary and appropriate for the purposes of making a scheme of priority.
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(3)To facilitate the sale of affordable dwellings under this Part or, in the case of open market dwellings, the provision of financial assistance under section 81 to eligible households, a scheme of priority shall provide for the classification of eligible households of similar circumstances by reference to the order of priority established in accordance with regulations made for the purposes of subsection (2) (c).
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(4)A housing authority may from time to time review a scheme of priority and, as it considers necessary and appropriate, amend the scheme or make a new scheme.
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(5)The making of a scheme of priority or the amendment of such a scheme are reserved functions.
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(6)The sale of affordable dwellings to eligible households under this Part and, in the case of open market dwellings, the provision of financial assistance under section 81 to eligible households are executive functions.
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(7)Notwithstanding the repeal by this Act of section 98 of the Planning and Development Act 2000 and section 8 of the Act of 2002, a scheme established under the said section 98 or the said section 8, as the case may be, and in force immediately before the coming into operation of this Part continues to have effect after such coming into operation and is deemed to have been made under this section until a scheme of priority made under this section comes into force.
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(8)A housing authority shall make a copy of its scheme of priority available for inspection by members of the public, without charge, on the Internet and at its offices and such other places, as it considers appropriate, during normal working hours.