Экзамен зачет учебный год 2023 / European Condominium Law
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interests of a third person (§§ 10 (1) and 12 (1)). Consequently, apartment owners may regulate the use of apartments and the common property by agreement. This wording has sometimes led academic writers to suggest that apartment owners may agree that an apartment owner may sell or rent his/her apartment only with the consent of the other apartment owners.114 This is not correct, as it confuses the term “use” with the term “dispose”. Disposition means changing the legal status of an object, for example, a transfer of ownership, encumbering it with real rights or enabling other persons to use it under a contract.115 Therefore, the apartment owners may agree on certain by-laws with regard to the permitted use of an apartment, but any restrictions on the disposal (e.g. by sale) have no effect on the validity of the contract between the apartment owner and a third party. The apartment owners may, for example in by-laws, require that an apartment owner must inform the management body when he or she lets the apartment. The agreement of all apartment owners is needed only if the right to use parts of the common property is granted to third persons.116
The issue of pre-emption illustrates one of the main differences between the institutions of apartment ownership and traditional coownership in undivided shares (kaasomand): unlike under traditional co-ownership, apartment owners do not have an automatic right of pre-emption.
Metalegal formants
It is generally accepted that the rights of owners to use and dispose of the property may be restricted only by law or by the rights of other owners.117 In larger schemes it is not practical to provide for a statutory right of pre-emption, nor is it justified to restrict an owner’s right to transfer his or her ownership, or to allow third persons to use the apartment. Apartment owners are free to provide for a right of preemption in the by-laws or by an individual contract. The wholesale lack of any restriction on the right of apartment owners to conclude rental contracts with third persons is compensated by the provision in the
114Merimaa, Eluaseme o˜iguslik regulatsioon (2005), pp. 55–6.
115The Decision of the Civil Chamber of the Supreme Court of 20. November 2000 in matter 3-2-1-135-00, RT III 2000, 28, 309.
116Decision of the Civil Chamber of the Supreme Court of 23 October 2007 in matter 3-2- 1-85-07, RT III 2007, 37, 924.
117Pa¨rna, Asjao˜igusseadus. Kommenteeritud va¨ljaanne (2004), p. 139.
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Law on Apartment Ownership, which makes apartment owners liable for the behaviour of his or her family members and tenants (§ 11(2)).
France
Operative rules
(a)The management body would probably base its refusal of Anne’s entry into the condominium on the ground that the sale of the unit to her was invalid as being in contravention of the title conditions.
If the sale is challenged on the ground that Anne is a lesbian, the title condition can be challenged in the first place on the ground of the European Convention on Human Rights, which protects a person’s right to privacy (arts. 8 and 14). In addition, the French Law on the battle against discrimination of 2001 and the Law on the adaptation of community Law in the sphere of the battle against discrimination of 2008 prohibit discrimination by means of civil and criminal sanctions. This clause could then be declared invalid on both grounds.
Refusal of entry because of non-approval by the management body in the general meeting could also be challenged under the Law on Apartment Ownership of 1965 (art. 8). This article prohibits any restriction on an owner’s right of use and disposal except for a restriction in line with the intended purpose (destination) of the scheme as residential, professional or commercial. In principle, every owner is free to sell his or her apartment without having to obtain the consent of anyone provided that the sale is in conformity with the intended purpose (destination) of the building. However, French case-law has suggested that condominium by-laws (re`glement de coproprie´te´) can validly prohibit the sale of a separate room serving a particular apartment (chambres de services), usually located on the top of old buildings and linked with a specific apartment, without the consent of the general meeting.118 The relevant decisions considered this type of clause to be consistent with the residential use and purpose (destination) of the building which housed only one family per floor.
(b)A refusal of entry to Anne based on a by-law prohibiting the letting of apartments can be challenged by Maria and Anne on the same ground – namely, that it restricts Maria’s right of disposal (Law on
118Cass. Civ. 3e`me 10 March 1981 no. 79-12950; 4 June 1998 no. 96-16452; 28 Feb. 2006 no. 05-11409.
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Apartment Ownership of 1965 art. 8). This is supported by the decision of the Court of Appeal of Paris in 2000,119 which dealt with a clause in the by-laws of a scheme authorising the letting of furnished apartments only in exceptional cases, and only for short periods of time. The court decided that this clause was invalid and unenforceable. French case-law is, however, not entirely consistent in this respect, as another fairly recent decision of 2006120 held that a clause in the bylaws (re`glement) that required the approval of the manager (syndic) for letting a furnished room was held to be valid and enforceable. Even so, a by-law which generally prohibits the letting of an apartment would be invalidated by French courts.
(c) Benjamin has no right to claim that he should have been offered the apartment for sale first before it was sold to Anne. There is no provision conferring a right of pre-emption in favour of owners in the Law on Apartment Ownership of 1965. The Cour de Cassation ruled expressly that a condominium by-law that prescribes that owners had a right of preemption whenever an apartment was offered for sale was void.121
Descriptive formants
(a)None of these restrictions against alienation of a unit is expressly regulated in the Law on Apartment Ownership. The right not to be discriminated against is part of the European Convention on Human Rights (signed by France in 1950 and ratified in 1974), and the two French Laws mentioned above. Any restriction on alienation or letting of an apartment to a person of one’s choice is taken to conflict with the French principle of freedom of disposal, and can under the Law on Apartment Ownership only be justified if it can be shown to be consistent with the intended purpose (destination) of the scheme (arts. 2 and 8). The prohibition on alienation without the approval of the general meeting falls foul of this principle.
(b)Under the above exception letting an apartment to a professional person may be restricted if it is shown to conflict with the intended purpose (destination) of a purely residential condominium.
(c)The absence of a right of pre-emption in the Law on Apartment Ownership is supported by case-law, which frowns upon any right of pre-emption conferred by the by-laws of a scheme.
11918 May 2000 (Loyers et coproprie´te´ 2000, no. 256).
120Cass. Civ. 3e`me 25 April 2006 no. 05-13096.
121Cass. Civ. 3e`me 29 May 1979 no. 78-11530.
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Metalegal formants
(a)In principle, a restriction on the sale of apartments in the scheme is not compatible with the Law on Apartment Ownership except if it is in accordance with the intended use and purpose (destination) of the building. Any restriction that is discriminatory in nature is generally prohibited, but restrictions that intend safeguarding the destination of the condominium could be acceptable. For example, a by-law that prohibits the sale of a garage or a separate room to a person who is not a scheme member in a middle-class residential building will be accepted as valid by French case law.
(b)An absolute prohibition on the letting of apartments is without question unacceptable, as it would infringe an owner’s right of disposal, which is inherent in his or her basic ownership entitlements. However, a prohibition on certain kinds of leasing of apartments can be valid in certain circumstances, as when by-laws assign a specific purpose (destination) to the building. This approach is upheld by the French courts.
(c)The Law on the Improvement of Tenant Relations of 1989 confers a right of pre-emption on sitting tenants if an owner should wish to sell his or her apartment (art. 15 II). There is no such right in favour of other owners in a condominium, and it would seem impossible to cater for such a right in the by-laws of the scheme. However, case-law in point is not very recent. A right of pre-emption could probably be acceptable (in theory) if all co-owners agree to insert it into the by-laws. It would not affect the security of creditors and does not really affect an owner’s freedom of disposition by sale, because the apartment need not be sold at a lower price. French case law aims to guarantee a complete freedom of choice of purchaser to the seller of an apartment.
Germany
Operative rules
(a) German law recognises two kinds of restrictions on the sale and transfer of units: first, the constitutive agreement can contain a rule that renders any transfer conditional on the approval of the general meeting or a third person, for instance the manager of the common property (Law on Apartment Ownership § 12). Through registration in the land register, such a restrictive condition affects the content of private ownership and thus is a right ad rem, binding on any owner of the unit. However, the approval can only be denied for a compelling
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reason that makes the purchaser unacceptable to the other owners, for instance, his financial status. The constitutive agreement cannot change this requirement and envisage less strict reasons.122 Since sexual orientation could not be considered a compelling reason, the owners’ association cannot veto the sale between Maria and Anne.
Second, unit owners can enter into an agreement not to dispose of their units or to dispose of them only under specific circumstances (CC § 137). Such obligations, however, are valid only inter partes, and therefore – unlike the aforementioned approval of transfer provision – are not binding on future owners of the units.123 Their validity is governed by the general provisions of German law. An obligation not to sell the apartment to lesbians has not yet been judicially scrutinised, but it
would in all likelihood be ruled illegal because of its discriminatory nature (CC § 138 par. 1).124
(b)Any unit owner has the right to let his apartment (Law on Apartment Ownership § 13 par. 1). The constitutive agreement, however, can set up a rule requiring the approval of the general meeting or the
manager (analogous to Law on Apartment Ownership § 12). Such a restriction cannot be introduced by majority resolution.125 Again, such
approval can only be refused for a compelling reason (analogous to the Law on Apartment Ownership § 12 par. 1).126 The question as to
whether the letting of an apartment generally can be prohibited in
the deed of subdivision of a scheme has not yet been judicially decided, but academic literature denies any such possibility.127 Nevertheless,
the German Federal Court of Justice seems to have recognised the
possibility that certain uses by a unit tenant may be validly prohibited.128
(c)The German Law on Apartment Ownership does not contain a right of pre-emption in favour of neighbouring owners. Such a right must be
122OLG Mu¨ nchen ZMR 2006, 961; Bamberger and Roth, BGB Kommentar (2007) § 12 no. 10.
123Palandt and Bassenge, BGB Kommentar (2011), § 12 WEG no. 1; Wenzel, ‘Beschlusskompetenz zur Aufhebung einer Vera¨ußerungsbeschra¨nkung gema¨ ß § 12 Abs. 4 WEG’ (2008), p. 71; dissenting: Riecke and Schmid, Fachanwaltskommentar Wohnungseigentumsrecht (2010), § 12 no. 43.
124Compare Wenzel, ‘Beschlusskompetenz’, p. 71. For reference to the German CC § 134 read with § 19 par. 2 of the General Law on Equal Treatment of 2006, see
Ba¨ rmann, Armbru¨ ster et al., WEG Kommentar, § 13 no. 65.
125BGH NJW 2010, 3093.
126Lu¨ ke, ‘Vermietung von Sondereigentum unter Beru¨ cksichtigung der Aufgaben des
Verwalters’ (2004), p. 292.
127 Ibid. |
128 BGH NJW 2010, 3093 regarding letting to tourists. |
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established contractually by the parties in question. A statutory preemption right only exists in favour of a sitting tenant in a rental building that is converted into an apartment ownership scheme (CC § 577). This right aims to protect sitting tenants against eviction by a new owner of the apartment.
Descriptive formants
(a)Restrictions on the sale of apartments are regulated by the provisions of the German Law on Apartment Ownership and the Civil Code. A restriction that forbids the sale of units to lesbians would in all likelihood be ruled illegal under the Civil Code because of its discriminatory nature.
(b)Restrictions on the letting of apartments in the constitutive agreement are governed by the Law on Apartment Ownership, academic literature and a decision by the German Federal Court of Justice that recognised the possibility that certain uses by a unit tenant may be validly prohibited.
Metalegal formants
(a)An approval (or consent) clause in the constitutive agreement is designed to protect the owners from unwanted future entrants into the scheme. It is, however, widely considered to be mainly a hindering factor in the transfer of units, because the transfer cannot be completed without the required approval, which often takes quite some time to obtain. Therefore, the legislative reform in 2007 introduced the possibility for unit owners to suspend any existing approval clause in their constitutive deed by majority decision (Law on Apartment Ownership § 12 par. 4). The approval of a transfer needs to be notarised; the resulting costs are often a cause of dispute between the parties to the transfer and the manager whose approval has to be obtained, because the approval is considered a mere formality.
(b)An absolute prohibition on the letting of units is seldom inserted in the constitutive agreement because of its negative impact on the value of the units. However, when it comes to the use of apartments for touristic purposes, restrictions on the letting of apartments can be practically important. The behaviour of the tourists as mere shortterm users, as well as the frequent turnover of occupiers of apartments, often cause conflicts in schemes. If the constitutive agreement contains no restriction, the other owners cannot prohibit this form of letting by majority decision. A solution currently being discussed is the introduction of a ‘lump sum’ payment to be made by each owner for
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each time a tenant moves in or out of the apartment. Such a measure, to be introduced by majority resolution, would aim to compensate for possible damage or injury caused by such a changeover in occupiers (Law on Apartment Ownership § 21 par. 7). The Federal Court of Justice has ruled in favour of such resolutions but warned that such resolutions would amount to discrimination and would thus be illegal if the lump-sum is made applicable only in the case of holiday tenants.129
Greece
Operative rules
In the constitutive deed establishing the condominium regime, the bylaws or other agreements among unit owners may contain clauses restricting or prohibiting the power of lawful disposal of units in the condominium.130 The validity of these clauses is currently under dispute. Some authors rely on the Greek Civil Code (art. 177) to suggest that the restrictive clauses have contractual effect only.131 Other authors suggest that art. 13 § 3 of the Law of Ownership of Storeys of 1929 is an exception to art. 177132 and contend that these clauses form part of property law and thus invalidate disposals in violation thereof.133 However, the prevailing view is that agreements among condominium owners, which contain clauses restricting or prohibiting the disposal of units, only constitutes an example of the horizontal effect of contractual obligations and thus bind third parties only if registered.134 Thus, an agreement granting an automatic right of preemption to condominium owners will only be part of property law, and thus enforceable against third parties if it is agreed that all third parties are bound by the restriction. In such a case it is deemed that the owner’s right of lawful disposal of his or her unit is not infringed.135 According to Spyridakis, the answer to this question is provided on a case by case basis depending on the nature, scope and extent of the restriction.
129BGH NJW 2010, 3508.
130Kallimopoulos, Ermineia Astikou Kodikos (Commentary on the Civil Code – collective work)
(1973), art. 208 ff.
131Livanis, Floor Ownership, p. 121.
132Kitsaras, Contractual Prohibitions of the Right of Disposal (1994), p. 414.
133Zepos, Horizontal Ownership, p. 109 ff.; Tsetsekos, Individual Ownership (horizontal and vertical) (2002), p. 76.
134 Poulou, Contractual Prohibition of Legal Dispositive Acts (2009), p. 95 ff. |
135 Ibid. |
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(a) Consequently, one must decide on a case by case basis whether a specific restriction on the power of an owner to dispose of his or her unit will be accepted by the law and accepted as a valid restriction on the power of disposal. With regard to the prohibition in the title conditions of sales to lesbians, such a restriction would be discriminatory and an unacceptable infringement of Anne’s dignity if she is not allowed sale and entry on this count.136 As far as the prohibition on sale and transfer without the approval of the management body is
concerned, this would probably be an unacceptable restriction on the power of an owner to dispose of his or her unit.137 Thus, the manage-
ment body will in principle not be allowed to refuse Anne entry into the condominium on account of these clauses.
(b)Whether Anne could be refused entry into the condominium on the ground of a clause in the by-laws that places an absolute prohibition on letting of apartments, is perhaps more difficult to answer. However, although restrictions on the letting of apartments are allowed in practice for example for periods of less than a week, an absolute prohibition on the letting of apartments as in this scenario, might be considered an unacceptable infringement of Maria’s power to freely dispose of her apartment. In any event, the prohibition on the letting of apartments in the condominium provided by the by-law cannot be enforced against the tenant, whose contract is valid. The rest of the
owners are left with a claim against the owner who let the apartment to terminate the lease.138
(c)The by-laws may contain a clause that provides for a right of preemption to one, some or all of the owners in the case of the sale or letting of an apartment. If Benjamin relies on such a clause in the bylaws, this constitutes a ‘restriction of ownership’ in the form of an easement (Law on Ownership of Storeys art. 13 par. 3). According to the prevailing view the term ‘restriction of ownership’ covers not only the
easements (CC arts 1118 ff and 1188 ff), but also the limitations on the power of the owner of the unit connected with the easement.139 In
136This restriction is null and void, because it is contrary to good morals (CC art. 178). On the meaning of the term ‘good morals’ see Nikolopoulos, ‘Art. 178 CC’ (2010), nos. 6–10.
137This restriction has only obligatory effect (CC art. 177). See answer to (c).
138Areios Pagos 372/1963 NoV 12, 75; Athens Court of Appeals 8100/1984 EDP 1984, 185. See also answer to (c).
139Spyridakis, Condominium, p. 412. But see Livanis, Disposal of Future Right (1990), p. 202; Tsetsekos, Individual Ownership, p. 252, who suggest that despite the literal interpretation of art. 13 par. 3 of the Law on the Ownership of Storeys, the
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line with this, case law accepts in general that restrictions in the bylaws are easements, even if their content does not strictly fall in the ambit of the statutory definition of an easement.140 Consequently, in accordance with the prevailing legal theory and case-law, the Law on Ownership of Storeys art 13 par. 3 covers all the restrictions on the rights and powers of the owners of the apartments resulting from the by-laws, whether they are easements or are another kind of restriction on the powers of disposal.141 Thus if the restriction in the by-laws restraining Maria from selling her apartment to outsiders before offering it to Benjamin, can be construed as an easement, Benjamin can rely on this restriction to claim that the apartment should be transferred to him at the same price. However, if the restriction cannot be construed as an easement, the restriction would only have contractual effect between Maria and Benjamin. The validity of the transfer to Anne would not be affected, but Benjamin would be able to claim damages for the loss he has suffered because the apartment has not been offered to him first (CC art.177).142
Descriptive formants
Restrictions imposed upon alienation constitute a limitation on the right to private autonomy in accordance with the general principles of the Civil Code (e.g. arts. 177 on free disposal of assets and 281 on abuse of rights). Restrictions must never make disproportionate inroads on the essence of the right of lawful disposition of a unit. A person’s right to personal autonomy, which caters for the free development of personality and the prohibition against discrimination on the ground of sexual orientation, based on the principle of equality is safeguarded in the Greek Constitution (arts. 5 and 4 respectively).
Metalegal formants
Under Greek law, the restrictions imposed upon the right of disposition of units that arises from the constitutional right to free
restrictions have the legal nature of an easement only if their content constitutes an easement according to the general provisions of property law. If not, they only have a contractual character unless they are registered, in which case they also bind special assignees on account of their knowledge of the restriction (CC arts. 791, 1115).
140Athens Court of Appeals 4067/1990 EDP 1992.43; Athens Court of Appeals 11267/1991 EDP 1993.169; Athens Court of Appeals 7412/1992 EDP 1993.256; Athens Court of Appeals 1944/1994 EDP 1994.213, as cited in Spyridakis, Condominium, p. 412; Areios Pagos 941/2000 EllDni 2001,150; Areios Pagos 186/1996 EDP 1996, 27; Areios Pagos 448/ 1996 EDP 1996, 57; Athens Court of Appeals 7337/1999 EDP 2001, 211.
141 Spyridakis, Condominium, p. 413. |
142 Poulou, Prohibition, p. 96 fns. 31 and 32. |
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development of personality are considered invalid when they are disproportionate. The crucial question is whether restrictions on sale and letting of units in the constitutive instruments of establishment or in the by-laws of the scheme aimed at constituting peaceful coexistence in a condominium consisting of an intensified community of owners, will in future still be considered a disproportionate restriction of the right of free disposal of a unit.
Ireland
Operative rules
(a)It would be difficult for the owners’ management company (‘OMC’) to deny Anne entry to the condominium. The terms of the lease to Maria may provide that the OMC is entitled to refuse consent to any assignment of the lease, but thanks to the Landlord and Tenant (Amendment) Act 1980 it cannot withhold its consent unreasonably (s. 66(1)). The fact
that Anne is a lesbian would not justify the OMC refusing consent, as this is an irrelevant personal factor.143 Anne can compel the OMC to
permit her entry into the unit following an assignment, which, despite the lack of formal consent, would pass title to Anne.144
(b)Having regard to the fact that Maria holds a long lease, any letting to Anne would take the form of a sub-lease. The rule amounts to an absolute prohibition on sub-letting and is rendered a fully qualified prohibition under the 1980 Act (s. 66(2)). The OMC as freeholder must be asked for its consent to the proposed sub-lease by Maria but it can refuse consent only on reasonable grounds, and these do not include the sexual orientation of a potential sub-lessee.
(c)There would appear to be no reason why Maria is not free to confer on Benjamin a right of first refusal if she wishes to assign the lease of her unit. The fact that Benjamin is another unit holder in the same scheme is not objectionable and such a provision could be said to promote scheme harmony. At the same time no right of first refusal is conferred by law on any other unit holders against one of their number who plans to sell their unit.
Descriptive formants
Landlord and Tenant (Amendment) Act 1980 s. 66 and case-law.
143Dunnes Stores (Ilac Centre) Ltd v Irish Life Assurance PLC [2008] IEHC 114.
144Lyall, Land Law in Ireland (2002), p. 602.