Экзамен зачет учебный год 2023 / European Condominium Law

allocate the shares,47 and usually use one or a combination of these factors together with other factors as a basis for determining the participation quota.48 Certain European jurisdictions have taken considerable trouble in compiling tables and lists by which the relative value of each apartment, and ultimately its participation quota, can be calculated.49 Italian legal writers in particular have evolved intricate theories and mathematical systems for tabulating the participation quota.50

In certain jurisdictions, the allocation by the developer is subject to approval by either an official of the deeds registry, a chartered accountant (Denmark) or a real estate valuer.51

Once determined, the quota is the reference point by which most statutes determine the following matters:

(a)an owner’s co-ownership share in the common property;

(b)an owner’s relative contributions to the expenses of the scheme and the debts of the management body; and

(c)the weight of the vote of an owner at general meetings.52

Nevertheless, most statutes contain special provisions on one or more of these matters,53 while some statutes indicate additional interests, connected or unconnected with the above-mentioned, which are also allocated in accordance with the established quota. As a quota becomes a part of the economic and social components of a particular apartment, most statutes stipulate that it can only be altered by

47Portugal: Decisions of the Supreme Court, of 8th July 1997 and of 12th November 2009, both in www.dgsi.pt.; Spain: Ferna´ndez Martin-Granizo, La ley de propiedad horizontal en el derecho espan˜ol (1983), pp. 264, 620–5; Catalan CC: art. 553-3.2 read with art. 553-9.1 (b); Germany: Law on Apartment Ownership § 16 par. 1 sent. 2; Poland: Law on Unit Ownership art 3 s 3 and 6 and CC art. 58 s. 2.

48See Judy and Wittie, ‘Uniform Condominium Act – Selected Key Issues’ (1978), pp. 441–2; Van der Merwe, ‘Allocation of Quotas’, pp. 73–4.

49France: Givord and Giverdon, La coproprie´te´ (1987), nos. 78–90; Arnaud and Bouyeure,

Guide pratique des millie`mes et charges de coproprie´te´: calcul, re´partition, re´vision, solutions techniques et juridiques (1971).

50Terzago, Il condominio. Trattato teo`rico-pra`tico (2000), pp 531–699; Rizzi, Le tabelle dei millesimali (1978).

51Van der Merwe ‘Apartment Ownership’ (1994), s. 152.

52South Africa: Sectional Titles Act s. 32(3), Slovenia: Property Code art. 106.

53Denmark: Law on Owner Apartments arts. 2 par 1, 6 par 1; Model By-laws art. 2 par. 3; German Law on Apartment Ownership § 16 pars. 1, 2; French Law on Apartment Ownership arts. 5, 10 par. 2, 22 par. 2; Givord and Giverdon, La coproprie´te´, nos. 549, 554–5; Catalan CC art. 553–2.1; Italian CC art. 1118, 1123; Dutch CC art. 5:113 pars. 1, 2, 3, 5; Portuguese CC arts. 1418, 1420(2) and 1424(1); Spain: Law on Horizontal Property arts. 3 par. 2, 16 par. 2, 3; Norway: Law on Owned Units s. 23(1).

unanimous resolution or by judicial intervention.54, 55 In spite of this, reappraisal of quotas is permitted by certain statutes in appropriate circumstances.

Certain jurisdictions do not adopt the quota concept, on the basis that the condominium property is owned by a company and ownership of a unit does not entitle unit holders to a co-ownership share of the common property of the scheme. These systems therefore regulate voting rights and the shared liability for expenses in a different manner.56

2.3. By-laws and rules of a condominium

Most countries recognise that the provisions of their respective statutes are not sufficient to regulate the finer details of administration and community life in an apartment ownership scheme. Special rules adapted to the characteristics and needs of a particular scheme are therefore introduced to achieve harmony and to ensure efficient management.57 These rules and resolutions (in Germany, Portugal and Estonia) are designated, inter alia, as by-laws (England, Denmark, Sweden and Slovenia), model rules (South Africa), re`glement de coproprie´te´ (France), Gemeinschaftsordnung und Beschlu¨sse (Germany), il regolamento (Italy), reglement (the Netherlands), estatutos y reglamentos (Spain) and regulamento de condomı´nio e deliberac¸o˜es (Portugal). They usually regulate the management and administration of the scheme and to a great extent also the right of an apartment owner to use and enjoy his apartment and the common property. Initial scheme rules going beyond the terms of leases are at present drawn up in Ireland by the developer and incorporated into each unit lease in a given scheme. The counterpart of by-laws in Scotland is real burdens drawn up by conveyancers using models of unofficial deeds of conditions.58

54Norway: Law on Owned Units s. 23(2); Estonian Law on Apartment Ownership § 13(1).

55Catalan CC art. 553–4; Spanish Law on Horizontal Property art. 5.2; Portuguese CC art. 1419(1).

56England: CLRA 2002 ss. 1 and 35 and Sch. 3; Model CCS Ann. 3 par. 1; 4.8.1, 12; Ireland: Multi-Unit Developments Act s. 18(13); Scotland: Tenements (Scotland) Act, Sch. 1 rules 4.2(b) and 3.1(g); Swedish Law on Real Estate Cooperatives Ch. 7 s. 14; Ch. 9 ss. 5 and 13; Estonia: Law on Apartment Associations § 4 (2).

57Poland seems to be the only jurisdiction that gets by without any by-laws.

58Sinclair, Handbook of Conveyancing Practice in Scotland (2002); Barker v. Lewis (2008) SLT (Sh Ct) 17; Rennie ‘Barker v Lewis on Appeal’ (2008), pp. 77–9, K. Reid ‘Interest to Enforce Real Burdens: How material is material?’ (2007), pp. 440–3; Xu, ‘Problems in the Law of the Tenement’ (2008), pp. 131–41; Title Conditions (Scotland) Act 2003, s.8.

By-laws not only affect apartment owners, but also act as mechanisms by which credit institutions protect their financial interests. A businessman may find that the by-laws impose severe restrictions on how he/she may conduct his/her business on the ground floor of a mixed-use scheme. A residential owner may discover that he/she requires the permission of the executive board to keep pets of any description in the apartment or that he/she is bound according to the by-laws to contribute to the cost of building a swimming pool on the common property. A mortgage creditor may like to find a by-law giving it an automatic proxy to attend and vote at general meetings when the condominium runs into financial difficulties.

Most statutes allow the developer and owners reasonable autonomy as to the content of the by-laws. However, they usually enumerate the types of by-laws that may be included and place certain restrictions on rules that are in conflict with, inter alia, the public interest.59 In some jurisdictions a set of by-laws are obligatory,60 while in others they are optional,61 but in practice all jurisdictions invariably adopt a set of bylaws.62 Most statutes require that by-laws are notarially executed and registered to bind successors in title,63 and generally provide that bylaws can only be amended by unanimous resolution. Finally, a few legal systems distinguish between by-laws and house rules and set lower standards for the creation and cancellation of the latter.

59Germany: CC §§ 138 and 242.

60Denmark: Law on Owner Apartments art. 7; France: Law on Apartment Ownership arts. 8, 14 par. 3; Italy: CC art. 1138; Netherlands: CC art. 5:111 par. 1 lit. d; Portugal: CC art. 1429-A (for a scheme of more than four units); England: Model CCS Ann. 4; Norway: Law on Owned Units s. 28(1).

61Germany: Law on Apartment Ownership § 10 par. 1; Greece: Law on Ownership of Storeys art. 4.

62Van der Merwe, ‘Apartment Ownership’, s. 280.

63Greece: Law on Ownership of Storeys art. 13 par.1, 2; Italy: CC arts. 2643-2645-bis; Catalan CC arts. 553-9.2, 5 and 553-111.3; Portugal: CC art. 1418(2)(a); England: CLRA 2002 s. 2(2) and Sch. 1; Denmark: Law on Owner Apartments s. 7; Norway: Law on Owned Units s. 28(1) (in the Register of Business Enterprises). Estonia: Law on

Apartment Ownership § 8 (2) and (4) (rules need not be registered); Pa¨rna,

¨

‘Korteriomanike u¨hisus. Uhisuse o˜igusvo˜ime ja vo˜imalikud teed korteriomandiseaduse muutmiseks’ (2008), p. 77.

part ii

Case studies

as in the present Case, the seller will be liable for any loss suffered by the purchaser as a result of not having received a registered title to his apartment. The purchaser would be able to resile from the contract and claim reimbursement of the purchase price, in addition to interest and compensation. A contractual penalty may also be inßicted on the seller, depending on the express provisions of the contract of sale.5

Some jurisdictions structure the initial contract of sale as a preliminary contract with the Þnal contract only being entered into on completion of the building and the registration of the condominium in the Land Register.6 Certain jurisdictions even allow the purchaser to register a prior notice (prenotation) in the Land Register that prevents the completed apartment from being sold and transferred to another person.7 Under Dutch, Norwegian and Spanish condominium legislation, the developer is entitled notionally to divide a building that has not yet been erected into apartments and to sell and transfer these notional rights to purchasers. This procedure has met with only mixed success in practice.

In the event of insolvency of the developer, there will be no additional protection for the purchaser when it comes to recovering the deposit and instalments paid in anticipation of the completion of the apartment. On any forced sale of the land, the purchaser would rank as an unsecured creditor. His claim would be inferior to that of any secured creditors such as the mortgage creditor of the land on the principle of paritas creditorum.8

Several jurisdictions contain certain consumer protection measures to improve the position of purchasers on the insolvency of the developer-seller. The most prevalent are measures which restrict the portion of the purchase price that may be paid in advance9 and measures whereby deposits and instalments are paid into a trust or special account, held in the name of the purchaser,10 or by a real estate agent or the notary involved with the transaction.11

5English and Estonian reports.

6Estonian, French, Polish, Croatian and Portuguese reports.

7German, Estonian and Polish reports and especially the Austrian report.

8Austrian, Belgian, Croatian, English, Greek, Irish, Dutch, Portuguese, Scots and Spanish reports.

9Belgian and German reports.

10Austrian, South African and Polish reports. In Poland money is released with the completion of every stage of construction.

11French and Norwegian reports.

Alternatively, or in addition to the above, certain jurisdictions require developers to provide a bank guarantee to the effect that in the event of insolvency, all advances will be repaid to the purchaser. This is the position in Austria, Belgium, France, Germany, Italy, Norway and South Africa. In Catalonia, Spain and Slovenia the developer is obliged to take out an insurance policy against its insolvency. In Germany, purchasers enjoy special protection under the Regulations regarding Real Estate Developers and Agents. In Ireland, local authorities make use of development bonds which are supposed to ensure that developers complete the development as planned, but this does not appear to offer any direct compensation to aborted purchasers.

Descriptive formants

The above answers are based on contractual provisions on future sales, general principles of the law of property and insolvency and special legislation in place to protect purchasers against the risks of purchasing apartments that are not yet completed, and as such are (with a few exceptions12) not capable of being registered in the Land Register.

Metalegal formants

The ability to sell condominium units based on building plans is a driving force in the condominium industry. It gives developers the opportunity to test the market and to obtain the necessary funds for construction from Þnancial institutions, especially if the developer is able to demonstrate a steady stream of future sales. Furthermore, the receipt of deposits and other advances at an early stage provides an essential incentive as well as sufÞcient cash ßow for developers to undertake the construction of the condominium building.13 Finally, it enables prospective apartment owners to secure units in a popular location ahead of individuals that are more risk averse.14

Frequent cases of abuse by unscrupulous developers, however, led to the introduction of measures to protect purchasers who paid for their units in advance. Given that the vast majority of buildings are Þnanced with third-party funds, the importance of guarding against the developerÕs insolvency cannot be understated. In many instances developers sold apartments based on building plans and received the whole or

12German report.

13Estonian, French, German, Greek, Slovenian and Spanish reports.

14English report.