Экзамен зачет учебный год 2023 / European Condominium Law

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land, common facilities or common equipment surrounding the houses. This format, which combines exclusive home-ownership with a high level of privacy and excellent common amenities (such as gardens, a swimming-pool, laundry services, and a porter or security guard), has become the legal framework for housing accommodation for the Portuguese upper class. These schemes must, however, comply with town planning provisions,5 which require, inter alia, that the ownership of roads, other infrastructures and facilities must be transferred to the municipality.6 The municipality, in turn, may assign to the ownersÕ association the obligations relating to the maintenance and upkeep of the infrastructures and facilities.7

3. Commercial or industrial condominiums

Units in commercial and industrial condominiums are utilised as shops, cinemas, parking garages, warehouses, hotels, motels and small factories. Small tradesmen and entrepreneurs who would otherwise be compelled to buy a building or rent suitable premises are particularly interested in this type of condominium. One condominium may, for example, be owned by several printers and lithographers as well as other entrepreneurs in the graphic arts industry; another condominium may house an electrical and a plumbing contractor, a paper distributor, an interior decorator and a home equipment specialist. Likewise, a number of entrepreneurs may combine to erect a condominium on an industrial parcel of land to house a chemical factory, a factory producing medical instruments or electronic engineering equipment on the different ßoors of the building. More recently, iParks, promoting, creating and settling companies with a high technological content, have been structured as condominiums in Portugal.

Unit owners beneÞt from a wide range of services provided by the management body, such as administrative support; legal, Þnancial and strategic consultation; marketing support and external promotion activities; supervision and maintenance of infrastructures and shared spaces; organisation and coordination of training programmes for human resources; dissemination of information concerning innovation,

5Decree-Law of 1999: Legal regime on Urbanism and Construction of Buildings.

6Art. 41 and arts. 43, 44 and 57 respectively.

7Arts. 46 and 47; Oliveira et al., Regime Jurı´dico da Urbanizac¸a˜o e Edificac¸a˜o Comentado (2009), pp. 387Ð8.

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four residential ßats on each storey but two shops on the ground ßoor is a typical layout of a Scottish tenement building.9 On the construction of commercial condominiums or on conversion of commercial rental buildings to the condominium regime, the developer frequently retains ownership of at least some of the commercial units as a nest egg.10 In Sweden, mixed-use cooperative housing schemes consist mainly of storage units on the ground ßoor and residential apartments in the rest of the building. In more modern buildings in Poland, ground ßoor units in condominium schemes are often planned as retail, ofÞce or services units and the Þrst ßoor and above are residential units.

6. Resort condominiums

Resort condominiums on the coast, in mountainous areas or in the vicinity of game parks have become popular in Europe.11 The advantages of such condominiums are unparalleled recreational facilities in the form of semi-private golf courses, swimming pools and gymnastic amenities; the labour associated with the keeping of a weekend or holiday retreat is transferred from the owner to a managing agent; vandalism at empty holiday cottages is greatly eliminated; resort apartments can more readily be let in terms of a Ôrental poolÕ or managing contract arrangements; and because of steady increases in market value, resort condominiums represent a capital investment.

Since the advent of time-sharing, the sale of time-shares in resort buildings has gained increasing popularity. As most time-share schemes are structured as condominiums, this form of Ôinterval ownershipÕ represents one of the most recent developments in resort apartment ownership.12 In the Netherlands Antilles, the law on apartment ownership schemes has been specially amended to allow timeshares in multi-unit buildings to be structured as apartment units. In Spain, resort or tourist condominiums (other than hotels) are established under the Law on Horizontal Property and regulated mainly by the Law on the Use of Immovable Property in Turns of 1998 that

9 Scot Law Com No 162 par. [5.28].

10England: Baker and Fenn, ÔCommonhold Ð its potential for Mixed Use DevelopmentsÕ (2004), pp. 121Ð4; Baker ÔFirst Major Commonhold ProjectÕ (2006), pp. 70Ð2.

11Belgium: Aeby et al., La Proprie´te´ des Appartements. Ses Aspects Juridiques et Pratiques (1983), no. 2.

12France: Givord and Givordon, La Coproprie´te´ (1987), no. 9; Portugal: Decree Laws 275 of 5 August 1993 on Timeshares as amended.

establishes a special regime that closely resembles time-sharing. In Norway, leisure schemes consisting of owned units (holiday homes) are regarded as residential schemes, usually with less restrictive rules than for ordinary residential units.

Since 1997 the condominium regime became extensively used in Portugal to regulate the complex relationships that ßow from multiproprietary rights in holiday apartments, villages and resorts in order to promote tourism as one of the core growth engines of the Portuguese economy, and a core strategic national policy.13 Decree-Law 39/ 2008, in force as from 7 March 2008,14 reshaped the condominium regime to iron out problems in multi-ownership tourist enterprises by the provision of high quality structures and services in the Portuguese tourism industry, which prides itself on constant scrutiny and improvements. Furthermore, article 53 expressly provides that the condominium legal regime operates as the default legal regulation for the internal relationship among owners in a resort scheme. In Portugal, hotel condominiums can be established as long as the rooms can be structured as autonomous, self-sufÞcient units that have independent access to common areas.15

The English reporter suggests that there is no reason why a commonhold scheme should not apply to a holiday apartment scheme, because all that is required of a unit is that it is to be speciÞed in a CCS as one of at least two parcels of land.16 In Sweden, some cooperative associations, especially those situated in tourist destinations, are resort associations and the apartments may be rented out in accordance with time-share arrangements. In Slovenia, the tourist condominium format is mainly used to provide second homes for Slovenian citizens.

6. Advantages of non-residential condominiums

Non-residential condominiums have numerous advantages: smaller companies or single entrepreneurs can pool their Þnancial resources to plan and construct a building according to their needs (e.g. with a large parking area); the cost of future maintenance of the building

13Decree-Law 167 of 4 July 1997.

14As amended by Decree-Law 228 of 14 September 2009.

15Passinhas, ÔEmpreendimentos turõ«sticos em propriedade pluralÕ (2010), p. 197; Siza Vieira, ÔPropriedade Plural e Gesta÷ o de Empreendimentos Turõ«sticosÕ (2010), p. 180.

16CLRA 2002 s 11(2).

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would not include an element of landlord proÞt; unlike lessees, apartment owners can plan future developments and expenditure more accurately without the threat of an existing lease being cancelled or the rent drastically increased on periodic renewal; substantial savings in terms of supplies, services and inter-company transactions could be gained; and the public relations value of Þrms engaged in interrelated Þelds being in close proximity could be inestimable.17

Moreover, the fact that the apartment is owned, as opposed to leased, need not necessarily be restrictive. Both the owner and the lessee would have the opportunity to lease additional space in the same building, with the owner being in a better position to stipulate for a right of Þrst refusal with regard to another unit in the building. Alternatively, he or she can utilise the provisions on expansion in applicable condominium legislation. Conversely, an apartment owner, like a lessee, can sublet part of his or her unit and in addition utilise the provisions on subdivision to subdivide and sell off part of the unit.18

7. Original statutes catered for residential condominiums

Although most apartment ownership statutes recognise either expressly or implicitly that condominiums could be put to residential, non-residential or mixed use, the provisions of the original statutes were primarily framed to suit residential apartments.19 Non-residential condominiums are based on business, rather than personal, considerations and a central locality, ample scope for advertising and constant modernisation are at a premium. By contrast, a quiet environment, privacy and minimum modernisation are catered for in residential condominiums. Examples of unsuitable provisions for non-residential schemes include the classiÞcation of the outside shell of the building as common property, thus requiring the consent of the other owners for advertisement purposes, and the special majorities required for termination of the condominium regime, alterations, modernisation and reorganisation of the building or of apartments. Furthermore, the

17Van der Merwe and Butler, Sectional Titles, Share Blocks and Time-sharing (1985), p. 12.

18South African Sectional Titles Act ss. 21 and 22.

19German Law on Apartment Ownership ¤ 1 par. 4 makes a distinction between Wohnungseigentum and Teileigentum and provides expressly that the provisions pertaining to residential condominiums apply also to non-residential condominiums.

condominium by-laws deal mostly with rules related to residential units, such as the keeping of pets, rather than the use of parking spaces and toilets by the clients of non-residential schemes. In this sense, the law on commercial condominiums is underdeveloped and in need of updating to correlate with commercial reality. A separate set of rules for non-residential schemes is surely desirable as a result of the stark differences in purpose and use between residential and commercial or industrial schemes.

Therefore, developers in Germany often impose speciÞc restrictions on the particular type of commercial activity that may be carried out in units by including these restrictions in the by-laws of the condominium (Gemeinschaftsordnung). The Catalan CC arts 553-1 ff. cater for all types of condominiums whether residential commercial, industrial, ofÞce or tourist but require that these provisions must be duly adapted to the nature of each particular scheme.

Since 1994, developers in Portugal have been able to structure shopping centres as condominiums on the basis of CC art 1438-A supplemented by Decree-Law 267 of 94 of 25 October 1994. Developers then normally assume the management of the centre and use their wide individual autonomy to design a set of by-laws to regulate the powers and duties of the various entrepreneurs inter se, the use of the building, units, common facilities and equipment.20 In a commercial scheme, for example, the outside shell of each unit need not be structured as common property and can thus be used for advertisement purposes without prior consent from the other owners,21 and the constitutive title may contain special provisions to regulate the use of parking spaces and toilets by clients.

The Norwegian reporter notes that rules applicable to commercial schemes are less restrictive in Norway than those governing residential schemes and that the principle of a closed number of ownership models does not apply in the same way. The Polish reporter mentions that the Law on Unit Ownership art. 12 s. 3 provides that the community of owners may pass a resolution obliging the owners of non-residential units to make larger contributions toward the maintenance of the common property than

20Decisions of the Supreme Court of 7 October 1986, 9 March 2004, 30 June 2009 and 27 January 2010 in www.dgsi.pt.

21On condition that the units are designed as a harmonious architectural entity.

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owners of residential units, so long as this is justiÞed by the particular uses of the non-residential units.22

8. Parking garages and street market units

Most countries have deviated from the requirement that units must have permanent walls, ßoors and ceilings, and also allow spaces such as clearly demarcated parking bays and storage places surrounded by wire to be structured as condominiums as long as these spaces are indicated on the constitutive plans. Catalonia,23 Germany, Poland, Slovenia and South Africa allow the structuring of parking garages (and Catalonia also street markets consisting of individual stands as units) as condominiums.24 In Catalonia, condominiums consisting of store-rooms or parking bays in a parking garage are often used to supplement storage and parking shortages in nearby residential condominiums. According to the Portuguese reporter, notaries have accepted public deeds of parking areas structured as units in a condominium by allotting a separate description to them in the constitutive title.

9. Caravan site and dockominiums

In the Netherlands, the possibility to structure bare-land or caravan site condominiums, as well as dockominiums consisting of mooring spaces for boats and yachts as condominium units,25 was explicitly introduced by the amendment of the deÞnition of Ôapartment rightÕ in CC art. 5:106 par. 4 to include the right to the exclusive use of certain demarcated parts of the land designated to be used as separate units. In Catalonia, bare-land or caravan condominiums are regulated by CC arts 553-53 to 553-59, which require clearly demarcated spaces surrounded by sufÞcient common spaces to allow access to the units. The Catalan

22Such justiÞcations may include the need to pay more for cleaning the hallways used by clients of the non-residential unit owners, a higher consumption of energy in the

common parts as a result of the non-residential use, or more frequent reparation of parking areas used by clients of the non-residential unit owners. See Pisuliński, ÔWłasnos«c« lokaliÕ (2007), pp. 281Ð2.

23Under Catalan CC art. 553-2.2.

24The Slovenian reporter adds parking lots, sports terrains and so on.

25Mijnssen et al., Mr. C Asser’s Handleiding tot de beoefening van het Nederlands Burgerlijk Recht

(2008), no. 344.

CC article 553-2.2 caters for the structuring of dockominiums, with the units being the mooring spaces for boats and yachts.

Land Registrars in Spain have registered spaces for boats and yachts in a port as condominium units. However, several Appeal Court cases held that the Law on Horizontal Property cannot be applied to the seashore because it is a public domain.26 Consequently, the right to use spaces for boats and yachts are generally based on concessions being granted to individuals by the competent public authority. Another difÞculty is compliance with the requirement that the private ownership of a delineated space must be combined with a co-ownership share in the common parts of the scheme.

The Greek reporter is of the opinion that it is theoretically possible to structure mooring spaces for boats and yachts, and bare-land condominiums or caravan sites as condominiums under the provisions of the Law on Ownership of Storeys and the general articles of the Greek Civil Code on lease (arts. 574 ff.). The Slovenian reporter suggests that it may be theoretically possible to create caravan site condominiums provided that each unit has at least some basic infrastructure (such as a pavement, electricity supply and plumbing) and dockominiums, but that this has not yet occurred in practice in that country.

10. Graveyard condominiums

The Catalan reporter is of the opinion that graveyard sites can be structured as condominiums under CCC article 553-2.2 as long as the graves are clearly demarcated and surrounded by sufÞcient common property for convenient access. The idea behind this structure is that private owners would be able to maintain the graveyard and the graves in a better condition. The English reporter suggests that there is no reason why a commonhold scheme should not apply to a graveyard scheme, because all that is required is that a unit must be speciÞed in a Commonhold Community Scheme as one of at least two parcels of land.27 A unit need not contain all or any part of a building.28

26 See, for example, Court of Appeal of Almerõ«a of 26 February 1999.

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11. Airspace condominiums

In Catalonia, airspace condominiums, or at least rights to establish condominiums on airspace reserved for that purpose, are encountered in two cases. In the Þrst instance, the developer is allowed to establish a condominium based on building plans for a new building or a building in the process of construction (CCC art 553-7.1). In the second instance, the developer (or any third party) is allowed to reserve for himself the right to extend an existing building upwards or downwards in the constitutive deeds of the condominium (CCC art 553-8, 553-10.2, 553-13, 567-1 and 567-2). The Scottish reporter notes that airspace is not a recognised separate tenement.29 Therefore, it will be impossible under the current law of Scotland to own a non-enclosed airspace at all.

12. Rejection of dockominiums, caravan site, graveyard and airspace condominiums

In France, Scotland, Denmark, Sweden, Poland and South Africa, the requirement that there must be a building inhibits the establishment of dockominiums, graveyard, airspace or caravan sites as condominiums or cooperative housing schemes. Some ingenious South African developers, however, subdivide a building into various storage units next to a river and then allocate mooring berths for yachts as exclusive use areas to these units in order to create dockominiums.30 The same structure is followed to establish caravan site condominiums with an ablution block being divided into units consisting of separate bathrooms or even only showers.

In Italy, there are no speciÞc rules governing the rather rare use of caravan site condominiums (without buildings) or graveyard condominiums. In Spain, it is theoretically possible to establish bare-site condominiums with regard to clearly delineated self-contained areas surrounded by common areas. However, the few Courts of Appeal cases on camping sites structured under the Law on Horizontal Property of 1960 dealt with condominiums with at least some permanent buildings, such as shops, reception halls or ablution blocks on the site.

The Portuguese reporter suggests that the condominium regime does not apply to such areas as caravan parks, dockominiums and

29For separate tenements, see Reid, The Law of Property in Scotland (1996), par. 212.

30Van der Merwe and Rossouw, ÔDockominiums or sectionalised mooring spaces in terms of the Sectional Titles ActÕ (2004), pp. 72Ð83.