Экзамен зачет учебный год 2023 / European Condominium Law

graveyards, because individuals have only a personal, time-limited right to the exclusive use of the space concerned. According to the Scottish reporter, the law of the tenement will have considerable difÞculties in dealing with dockominiums, graveyard condominiums or any other bare-land condominiums, mainly because they do not satisfy the requirement of being a tenement, for the obvious lack of a building.31 However, he suggested that these land-only schemes may well be structured in future as Development Management Schemes by ingenious conveyancers.

13. French service condominiums

The French Law on Apartment Ownership contains special provisions pertaining to Ôservice condominiumsÕ(re´sidences-services), which apply to retirement schemes and resort condominiums. These schemes offer various services to apartment owners, such as a restaurant, security services and sporting activities. Since 2006, the schemes have also been regulated by the Law on National Commitment to Housing of 2006 (art. 95-I). This statute regulates the distribution of maintenance and other charges between owners in a more satisfactory way, and clearly distinguishes schemes according to whether personal and medical assistance is or is not available to the unit owners. The former schemes are also regulated by some of the provisions of the Code on Social Action and Families (for the better protection of the elderly in particular), while the latter schemes are regulated by the new articles 41-1 to 41-5 of the Law on Apartment Ownership of 1965. These provisions are obligatory and require the condominium community to operate and manage these services or to outsource these services to an outside company.

14. Practical significance of condominiums

It is estimated that 90 per cent of condominiums in the Netherlands, Spain, Norway, Slovenia and South Africa and 60 per cent in France are residential or mixed-use schemes (residential and commercial). In South Africa, roughly 5 per cent of the condominiums are resort condominiums and the other 5 per cent is divided between ofÞce and industrial condominiums. In Spain, ofÞce condominiums amount to

31Tenements (Scotland) Act 2004, s. 26 deÞnes a tenement as Ôa building or a part of a building. . .Õ

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5 per cent, commercial and resort condominiums to 2 per cent each, and industrial condominiums to 1 per cent of the total number of condominiums. The Swedish report notes that there are more than 760,000 residential and in the region of 20,000 non-residential real estate cooperatives in Sweden.

Most condominiums in Germany and Catalonia are either entirely residential or primarily residential, with a small number of commercial units, usually on the ground ßoor. Pure commercial condominiums are scarce but do exist, for instance, as hotel condominiums. In France, developers are not keen to structure industrial developments as condominiums because the provisions of the Law on Apartment Ownership are not suitable for that kind of use and make the operation of an industrial building unnecessarily complicated. Hotel condominiums (condohotels) exist in some parts of Spain32 and these are reported to experience Þnancial problems resulting from the credit crunch.

32 www.elmundo.es/elmundo/2011/01/14/andalucia_malaga/1295000432.html.

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consisting of wooden chalets impermissible.8 Other statutes stipulate that only high-rise buildings must be constructed of permanent and not prefabricated materials, but do not extend this requirement to schemes consisting of a number of independent buildings. On this basis a scheme consisting of wooden chalets would be acceptable.9

A comparison of the national reports revealed some common trends. In Germany, the building must be an essential, not a temporary, part of the land;10 in Slovenia, buildings must be attached to the ground, and constructed of bricks and other physical materials;11 in Estonia, a building must form an integral part of the land and units are described as physical parts of the condominium building.12 The English commonhold legislation requires that the commonhold building must be grounded thus making so called ‘flying freeholds’ impermissible.13 Interestingly, the Italian legislation requires that the materials and techniques used for buildings in regions where there is a risk of earthquakes must be anti-seismic.

Most European statutes further require that the building (or group of buildings) must be subdivided into at least two separate units. In the case of a group of buildings, each individual building (called in France a groupe d’immeubles baˆtis) may form a separate unit.14 Not one European jurisdiction imposes a maximum number of units.

While most jurisdictions require a building of a permanent nature, or at least a building of some sort, the Catalan Civil Code recognises boat slips (‘dockominiums’), parking spaces and street market stalls as forms of condominium.15

Most condominium statutes or local planning and building statutes require approval of a condominium scheme by the local authorities concerned.

Most European statutes stipulate that a condominium regime can be established in two situations. The first is when the developer submits

8 Ireland: Wylie, Irish Land Law (1997), p. 1; South Africa: Sectional Titles Act s. 1(1)

12Law on Buildings § 2(1) and Law on Apartment Ownership § 2(1).

13CLRA Sch. 2 par. 1.

14France: Law on Apartment Ownership art.1; South Africa: Sectional Titles Act s. 1(1) ‘developer’; Portuguese CC art 1438-A. Swedish Law on Real Estate Cooperatives Ch. 1 s. 2 requires a minimum of three separately located houses in a residential estate or apartments in a high rise building.

15See CC arts 553-2.2; Chapter 4.

the building to the provisions of the applicable statute. This is done by way of a unilateral declaration by the developer. The second is when the co-owners of the property enter into an agreement to submit the property to apartment ownership and to divide the apartments between themselves.16 The latter is less commonplace nowadays given the nature of the housing industry. For completeness, it is worth noting that in several countries apartment ownership can be established by an order of court (mostly where co-owners fail to reach a decision),17 by expropriation and by prescription.18 Such instances are seldom seen in practice.

In France, Italy and Poland, the condominium regime is established automatically when apartments in a building are owned by more than one person. There is no requirement to formally subject the property to apartment ownership. Nevertheless, in order to obtain validity vis-a`- vis third parties, a notarial deed detailing the division of the building into apartments must be registered. For example, in Italy the condominium plan and by-laws (regolamento di condominio) drawn up by the developer are invariably registered in practice (CC art 1138).

In contrast with the position in France, Italy and Poland, most European countries do require the execution of formal documents and registration for the constitution of a condominium regime.19 In Greece, acondominium is created by the registration of the unilateral declaration of the property developer to divide the apartment building.20 In most European jurisdictions, the document tendered for registration must have a specific content aimed at describing precisely how the scheme is divided into individual apartments or units.21

16See for Belgium, Aeby et al., La proprie´te´ des appartements. Ses aspects juridiques et pratiques (1983), nos. 68–70, 75; France: Kischinewsky-Broquisse, La coproprie´te´ de immeubles baˆtis (1989), no. 59; Germany: Law on Apartment Ownership § 3, 8; Greece: Law on Ownership of Storeys art. 14; Slovenia: Property Code arts. 107–9.

17Portugal: CC art. 1417 par. 2; Spain: CC art. 401. Slovenia: Property Code art. 110.

18See, for example, Aeby et al., La proprie´te´, no. 78.

19Germany: Law on Apartment Ownership § 4 par. 1; Greece: Law on Ownership of Storeys art. 13 par. 1; Netherlands: CC art. 5: 107, 5:109 par. 1; Catalan CC arts. 553-9 and 553-7.2.

20Law of 1929 art. 13 par. 2, 3.

21Aufteilungsplan (Germany); e´tat descriptif de division (France: Decree of 4 Jan. 1955 art. 2, 3 and 7); akte van splitsing (Netherlands: CC art. 5:109 par. 2, 5:111 par. 1); tı´tulo constitutivo (Spain: Law on Horizontal Property art. 5); Catalonia (CC art. 553-9.1 and 2) and Portugal (CC art. 1414); akt o oblikovanju etazˇne lastnine (Slovenia: Property Code arts. 107(1) and 116(1); deed of application for DMS (Scotland: Title Conditions (Scotland)

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Most European countries recognised that their system of land registration was in need of an overhaul to accommodate the registration of apartment ownership titles. Among others, the French and German statutes require that a separate file must be opened (in Germany in a special Wohnungsgrundbuch) for every apartment in the scheme.22 The statutes of Spain, Catalonia and Portugal require registration of the scheme under a principal or matrix inscription and registration of each individual apartment under a separate filial inscription.23 The South African Act demands that a special sectional title register is opened for an apartment ownership scheme.24 On registration of an apartment ownership scheme in Estonia, the existing land registered title relating to the plot of land upon which the development is to be built must be closed and replaced by a new folio for all the apartment ownership units.25

In Denmark, there is a requirement for detailed condominium plans to be drawn up by a surveyor. The plans must detail the number, size and location of each condominium unit within the scheme. A condominium regime may only be created by registration of the condominium scheme in the land register. In Norway, the decision to subdivide is also registered in the Cadastre. The Cadastre is similar to the Norwegian land register but is not a register of rights. It simply contains information relating to immovable property.

The procedure for the establishment of a cooperative housing scheme (bostadsra¨tt) in Sweden begins with the establishment of the association. This requires at least three members, who must prepare the by-laws of the association and elect an executive board (management body) and an accountant. The association must then be registered before the buildings are constructed and apartments are leased to the members. A financial plan must also be approved and registered in the official register prior to any units being leased. Interestingly, despite the fact that the association must be registered before the commencement of

Act 2003, ss.71 and 73) and the sectional plan (South Africa: Sectional Titles Act s. 5 and reg. 5). See further Estonia: Law on Apartment Ownership §§ 4 and 5; England: Commonhold (Land Registration) Rules 2004 reg. 5; Ireland: Fitzgerald, Land Registry Practice (1995), pp. 67–9 and 73–5; Norway: Law on Unit Titles ss. 5, 6(5) and 7.

22France: Decree of 4 Jan. 1955 art. 10 read with art. 2; Germany: Law on Apartment Ownership § 7 par. 1.

23Spain: Law of 1960 art. 2, Catalonia: Law on Mortgages art. 8.4, 5; Portugal: Land

Registration Code arts. 2(a), 81.

construction, it is possible for the association to buy a completed building or a building that is already under construction.

A minority of statutes require that the building must be substantially completed before the condominium plan can be registered and the condominium register opened.26 Most statutes allow apartment ownership regimes to be established on the basis of a detailed building plan that has been approved by the relevant authorities.27 In Norway, the establishment of unit title schemes requires a building licence,28 which can only be obtained on the basis of detailed plans. In order to avoid ‘ghost unit title schemes’, which may complicate the management of the property in the long run, units added to an existing building may only form part of the unit title scheme once they have been completed.

2. Some basic concepts

2.1. Common property and exclusive use areas

The distinction between common property and individual units is important for a number of reasons. The community of owners is collectively responsible for the maintenance and repair of the common property. Furthermore, owners enjoy fewer rights in relation to the common property than they do over their apartments.

More than half of the jurisdictions represented define common property exclusively by designating every part of the scheme that is not land or part of a unit as common property.29 The German and Spanish statutes initially define common property exclusively and then enumerate which physical parts must invariably be common property.30 The remaining jurisdictions define common property

26In Slovenia (Vrenčur, Stvarno pravo za posrednike pri prometu z nepremičninami (2005), pp. 120–1) and South Africa (Sectional Titles Act s. 6) the scheme van be registered as soon as the floor areas of all the units can be measured.

27Catalonia: CC arts. 553-7.1 and 553-9.4; Estonia: Law on Apartment Ownership § 5 (3) (1); Land Registration Code art. 92; Spain: Land Law of 2008.

28Law on Unit Titles s. 6(5).

29Poland: Law on Unit Ownership art. 3 s. 2; England: CLRA 2002 s. 25(1); Scotland: Tenements (Scotland) Act s.2(4), 3(3); South African: Sectional Titles Act s. 1 ‘common property’; Norway: Law on Owned Units s. 6(1) and (2).

30Germany: Law on Apartment Ownership §§ 1 pars. 2 and 5; Spain: Law on Horizontal Property art. 3; CC art. 396.

inclusively by stipulating an exhaustive list of parts of the land and the building that are part of the common property.

The Italian Civil Code contains the most complete list of common property components.31

Unless the constitutive document provides otherwise, all parts of the project destined for common use or service are part of the common property, including, inter alia, the land on which the building is located; foundations, bearing walls, roofs and solariums; stairways, staircases, entrances and exits; corridors, porches and courtyards; the office and residential quarters of the porter; laundry rooms and rooms utilised for drying clothes or for housing the central heating system; elevators, wells, cisterns, aqueducts, sewerage plants and conduits used for drains, water, electricity and heating, up to the point where they branch off into apartments.32

The French statute is unique in providing that the common parts not only consist of physical parts of the project but also include certain accessory rights (droits accessoires) if the constitutive document does not provide otherwise. These rights include the right to add another storey to a building or to excavate a cellar beneath a building; the right to erect structures on the land, courtyards, parks and gardens that form part of the common property; and the joint ownership of common walls (mitoyennete´) that constitute part of the common property.33

The Portuguese and Greek statutes distinguish between mandatory and permissive common elements. Examples of mandatory common elements are the land, foundations, columns, pillars and other structural components of the building. Permissive common elements that may be designated as components of apartments in the constitutive document or the by-laws of the project include, inter alia, patios and gardens, elevators, rooms occupied by the porter and garages. Selfcontained portions of a building, or even separate buildings, such as a laundry, a swimming-pool, storage facilities, a clubhouse or a kindergarten, may be designated for common use.34

31CC art. 1117.

32For similar lists see Greece: Law on Ownership of Storeys art. 2 § 1; France: Law on Apartment Ownership art. 3; Catalonia: CC arts. 553-2.1 and 553-41; Slovenia: Law on Housing art. 5; Estonia: Law on Apartment Ownership § 2 (2).

33France: Law of 1965 art. 3.

34Portuguese CC art. 1421 par. 1, 2; Greece: Peiraius Court of Appeals 1227/2005 (PeirN 2006, 29).

Several jurisdictions recognise that exclusive use areas may be established with regard to clearly demarcated parts of the common property in favour of one or more owners as parking spaces, storage facilities, garden areas, servant quarters or even areas of the outside walls for the attachment of advertisement signage. This concept is referred to as ‘limited common property’ in United States legislation,35 and is used to grant more extensive rights of use to one or more owners to certain parts of the common property and in most cases to shift the responsibility for maintenance and repairs of these parts to the owners served by them.36 Some jurisdictions recognise that the rights to exclusive use areas are limited real rights,37 while other jurisdictions provide that they are only personal rights, based on contractual rights between the owners concerned.38

Under Norwegian law, it is possible to establish areas for temporary exclusive use by an owner in the by-laws of the scheme. Thus, the owner of a restaurant unit may be allowed to put tables outside the building during the summer season (s 19(5)). In Sweden, it is possible for a member to acquire exclusive rights of use to parts of the common property, as long as the land in question is directly connected to his apartment and supplements the use of the apartment – for example, a terrace (Law on Real Estate Cooperatives Ch. 1 s 4). Under Polish law, a similar outcome may be achieved by a simple resolution to establish a right of exclusive use of parts of the common property.39

35Uniform Common Interest Ownership Act of 2008 s. 2–108.

36Germany: Law on Apartment Ownership § 5(4) sent 2 and 3 (Sondernutzungsrechte); French Law on Apartment Ownership arts. 4 and 8; Kan-Balivet, ‘La nature juridique du droit de jouissance exclusif sur les parties communes’ (2008), p. 1765 ss.; Catalonia:

CCarts.553-42.2 and 3; 553-52.1(b); Portugal: CC art. 1421(3); England: CLRA s. 25(2) and Model CCS Ann. 4 para. 4; Clarke, Commonhold – The New Law (2002), pp. 100–1; Scotland: PS Properties v. Callaway Homes Ltd [2007] CSOH 162; D.B. Reid, ‘The Tenements (Scotland) Act 2004’ (2008), p. 6–55; Slovenian Law on Housing arts. 20–21. 2.

37Greece: Spyridakis, Law of Condominium (1996), par. 66.5; South Africa: Sectional Titles Act s. 1(1) ‘exclusive use area’, ss. 27, 27A; Poland: Supreme Court decision 2010.07.21,

IIICSK 23/10, LEX no. 677759 (as a praedial servitude).

38Germany: Law on Apartment Ownership § 5(4) sent. 2 and 3 (Sondernutzungsrechte); Ha¨ ublein, Sondernutzungsrechte und ihre Begru¨ndung im Wohnungseigentumsrecht (2003); Hogenschurz, Das Sondernutzungsrecht nach dem Wohnungseigentumsgesetz (2008); LG Nu¨ rnberg-Fu¨ rth NJW 2009, 3442.

39Supreme Court judgement 2010.06.29, III CSK 325/09, LEX no. 602266.

2.2. Participation quota or share value

We have seen that most European statutes accept that condominium has a threefold nature, linking ownership of an apartment with common ownership of the common property and membership of the management body.40 The composite ownership obtained by the apartment owner involves the sharing of rights and obligations with other owners, while membership of the management body entitles the owner to participate in the process of collective decision-making. The allocation of shared responsibilities and rights, including voting rights at meetings, is effected on the basis of a formula designated, inter alia, as the participation quota, share value, unit factor or unit entitlement. The Spanish, Catalan and Portuguese statutes require that the quotas of a condominium must be expressed as a percentage, or a permillage (per thousandth),41 while the Danish and German statutes prefer that the quota be expressed in fractions.42 French practitioners use one thousand as the denominator as the basis for quota allocation, and ten thousand for bigger condominiums. The success or failure of a scheme may well depend on an equitable formula for such allocation being reached, and the allocation of quotas has the potential for becoming the main source of conflict among apartment owners.43 Its importance cannot, therefore, be understated.

While certain jurisdictions prefer to allocate share value equally among all unit owners,44 the most commonly used formulas are based on the relative value or relative size of a particular apartment proportional to the total value or size of all the apartments in the scheme.45, 46 In certain jurisdictions, developers (or co-owners initiating a project), are afforded a certain discretion to decide on a unique formula to

40See Chapter 1.

41Spain: Law on Horizontal Property art. 3 par. 2; Portugal: CC art. 1418(1).

42Denmark: Law on Owner Apartments art. 2 par. 1; Germany: Law on Apartment Ownership § 16 par. 1 sent. 2.

43See Van der Merwe, ‘The Allocation of Quotas in a Sectional Title Scheme’ (1987), pp. 70–1.

44For equality as the default position, see the Dutch CC art. 5:113; Danish Law on Owner Apartments § 1 par. 2.

45France: Law on Apartment Ownership art. 5; Greece: Law of 1929 art. 5 par. 1 lit. b; Italy: CC art. 1118; Portugal: CC art. 1418; Spain: Law on Horizontal Property art 3 par 2; Slovenia: Property Code art. 106 read with art 116 (using the formula of ‘utility value’).

46Estonia: Law on Apartment Ownership § 5 (3); South Africa: Sectional Titles Act s. 32(1) (for residential schemes).