Экзамен зачет учебный год 2023 / European Condominium Law

Metalegal formants

A long lease of a unit of the length usually granted to unit holders by Irish developers is not far short of a freehold, but the developer can impose a requirement in relation to all long leases in a scheme that the consent of the owner’s management company is required to any proposed assignment or sub-letting of units. Legislation curbs this type of clause, so that the management company can only refuse consent on reasonable grounds, most notably those relating to the financial

strength of the new unit lessee;145 the onus of proving this, is on the assigning lessee.146 The OMC is not liable to Maria in damages for any

unreasonable refusal of consent.147 If consent is unreasonably refused to the proposed assignment, Maria would be entitled to assign the lease to Anne without further ado.148

A house rule may be passed at an OMC meeting thanks to Multi-Unit Developments Act 2011 section 23, requiring any proposed assignment of a lease to be notified to the managing agent of the development (s. 23). Such a rule would seem to pertain to the ‘effective operation’ of the development (s. 23(1). A financially weak proposed new unit holder may thus be barred access to a development in the interest of the community.

Italy

Operative rules

Maria is rightfully entitled to freely dispose of her property (CC art. 832), and is therefore entitled to alienate or rent out her apartment to Anne as the case may be. The management body may not prevent Anne from buying into the condominium scheme. Benjamin does not have a legal right of pre-emption in respect of Maria’s apartment, since there is no evidence of any right of pre-emption in the by-laws of the scheme.

Descriptive formants

As is the case in most Western European legal systems, Italian law recognises that apartment owners acquire good title to their apartment unless there is evidence to the contrary in the constitutive deed or the

145O’Regan, ‘Assigning a tenancy to a third party’ (2010), p. 80.

146OHS Ltd v Green Property Co Ltd [1986] IR 39.

147Meagher v Luke J Healy Pharmacy Ltd [2010] IESC 40.

148Treloar v Bigge (1874) LR 9 Ex Ch 151.

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contract effecting the transfer of the apartment (CC art. 1117). In principle, the owner is entitled to enjoy and dispose of his property provided that the limits and the duties established by the legal order are abided by (CC art. 832). Consequently, title conditions, restrictions in by-laws or decisions of the general meeting aimed at rendering apartments inalienable (or alienable subject to the approval of management body) are generally considered invalid. Certainly, an owner would be able to challenge such decisions as an unacceptable intrusion into his or her ownership entitlements. A contractual prohibition on alienation is only permissible if it is limited in time and accords with an appreciable interest of one of the parties (CC art. 1379).149

In the given scenario, the clause contained in the title conditions prohibiting the alienation of all apartments to lesbians does not serve a legitimate and appreciable interest and is flagrantly genderdiscriminatory and, thus, sharply in contrast with the equality clause of the Italian Constitution (art. 3) and the international conventions of European Union law. Furthermore, CC art. 1372 provides that a contractual prohibition on alienation is only effective between the parties to that contract and, subject to certain exceptions provided for by law, cannot be enforced against third parties (CC arts. 1411 and 1415).

Although owners may, in principle, use, dispose and enjoy their apartment fully and exclusively, their rights are not absolute. Various restrictions limit the use that may be made of an apartment, such as the concurrent rights of the other owners, by-laws, and statutory provisions. In particular, CC art. 1138 par. 4 provides that by-laws cannot in any way infringe or diminish the exclusive rights of any apartment owner as evidenced by the deeds of conveyance and agreements amongst the owners.150

According to both a consistent body of case law and the prevailing opinion amongst legal scholars,151 the above provision applies only to

149Cass. 11.04.1990, no. 3082 confirmed by Cass. 17.11.1999, no. 12769, which held that CC art. 1379 is a general provision that is also applicable to other agreements.

150CC art. 1138 par. 4 provides that by-laws may never replace the provisions of

arts. 1118 para 2, 119, 1120, 1129, 1131, 1132, 1136 or 1137. These arts, which cannot be substituted even by unanimous resolutions, contain principles of public order to protect the fundamental rights of unit owners or third parties, and apply equally to all unit owners. See Cass. Civ.Sez. II, 03/08/1966, no. 2155; Cass., 9.11.1998, no. 11268; Branca, ‘Comunione, condominio negli edifici’ (1982), p. 673.

151Cass. 3.10.1979, no. 5078; Cass. 6.2.1987, no. 1195; Cass. 26.5.1990, no. 4905;

Cass. 28.9.1994, no. 7894; Cass. 14.8.2007, no. 17694; Cervelli, ‘I diritti reali’, pp. 276 ff.; Dogliotti, ‘I diritti reali comunione e condominio’ (2006), p. 414 ff.

the so-called model by-laws (regolamenti assembleari o non contrattuali), namely, those approved by a majority vote in number and share value of the owners present at a general meeting. Conversely, the so-called contractual by-laws (regolamenti contrattuali o convenzionali), that is, the agreements approved with the unanimous consent of the owners, amount to real or proprietary burdens (oneri reali o obbliggazioni propter rem) that may in fact limit the exclusive property rights of an owner.152

While this appears to somewhat undermine art. 1138, there are limits on the content of contractual by-laws. If such a provision is drafted too generally, for example threatening to extinguish the right of ownership, it can be challenged and invalidated.153 A clause containing a general prohibition on letting an apartment is likely to be considered invalid. In any event, there is case law indicating that clauses in the by-laws limiting the rights of apartment owners on exclusive or joint ownership and those assigning to some of them more rights than others have a contractual nature and are modifiable through unanimous consent of the co-owners only.154 In terms of formal requirements, such clauses must be expressed in writing, as they constitute property charges or easements, which must be recorded in the Land Registry in order to be enforceable against third party purchasers of units in the condominium. By contrast, the amendment of clauses regulating the use of the common property requires only a resolution

adopted by a simple majority at the general meeting (CC art. 1136 par. 2).155

According to leading jurisprudence, clauses that restrict an apartment owner’s rights are categorised as property charges on private property,156 and become enforceable against purchasers of real estate units when duly recorded or expressly accepted by successors in title

152For examples of permissible restrictions frequently encountered in contractual bylaws see Cass. 4.12.1993, no. 12028; Cass. 12.5.1982, no. 2960; Cass. 14.11.1991, no. 12173); Cass. 1.6.1993, no. 6100); and Cass. 14.4.1983, no. 2610.

153Cass. 26.5.1990, no. 4905. and Branca, ‘Comunione e condominio’, p. 676. Restrictions on the use and intended use of apartments in contractual by-laws must be expressed in clear and unambiguous terms and must contain a precise list of prohibited activities (e.g. no pets in residential apartments) or nuisances (e.g. activities causing unpleasant smells). See Cass. 23.12.1994, no. 11126; Cass. 13.2.1995, no. 1560; Cass. 18.9.2009, no. 20237. For restrictive interpretation of clauses in by-laws, see Cass 2.6.1999

no. 5393; Cass 14.3.1975 no. 970, RGE 1975, I, 590; Cass. 26.1.2004 no. 1314.

156Cass 28.7.1990 no. 7630; Cass 7.3.1983 no. 1681; Cass 26.10.1974 no. 3168, Giustizia Civil 1975, I, 800.

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with a reference to the condominium by-laws in the transfer agreement,157 particularly with regard to the content of the recorded note.158 These requirements are equally applicable to a right of preemption agreed upon by the parties (pactum protomiseos). However, it should be borne in mind that a sale infringing a right of pre-emption only gives rise to an action for damages.

Metalegal formants

The Case under consideration illustrates that when it comes to use and enjoyment of property, the interests of the individual unit owner are afforded fairly robust protection This strikes a chord with prevalent Italian socio-cultural attitudes. Limitations on the rights of apartment owners may only be justified by reference to the general interests of the condominium scheme, and cannot be warranted simply because it is in the interests of one particular apartment owner, or a select group of unit owners. Furthermore, while such limitations would be enforceable against the relevant owners, a failure to abide by the limitations can give rise to nothing more than a claim for compensation in respect of any loss suffered by other owners.

Netherlands

Operative rules

As a general rule, Dutch law does not allow restrictions on the transfer of property. Such restrictions may be agreed contractually between contracting parties, but cannot be included in the deed of subdivision (splitsingsakte) with effect against the whole world (erga omnes).159 However, if an apartment ownership regime was established by a deed of subdivision pertaining to a hereditary land lease (erfpacht), the limitation on transferability is allowed (CC article 5:91 par. 3). The limitation on transferability must then be included in the constitutive deed of the land lease and repeated in the deed of subdivision.

(a) The management body cannot refuse to allow Anne entry into the condominium on the grounds of the two clauses contained in the title conditions of the scheme (in Dutch terms: the splitsingsakte or deed

157Cass 14.1.1993 no. 395, Giustizia Civil 1994, I, 504; Cass 13.7.1983 no. 4781.

158Cass 15.12.1986 no. 7515; Cass 11.11.1974 no. 3525.

159Mijnssen et al., Mr. C Asser’s Handleiding tot de beoefening van het Nederlands Burgerlijk Recht

(2008), no. 486.

of subdivision). The aim of both clauses, namely, that the apartment may not be sold and transferred to lesbians and that the sale of any apartment must be approved by the management body is to restrict the free transferability of apartments in the scheme, and such clauses are not allowed in the deed of subdivision of an apartment rights scheme, except in the case where the scheme is structured on a hereditary land lease (erfpacht) instead of the ownership of the land. In addition the prohibition on sale to lesbians will generally be considered null and void because it is discriminatory and thus conflicts with basic human rights.160

(b)With regard to the clause in the by-laws that prohibits the letting of apartments, it is accepted that the by-laws may make the letting subject to the approval of the general meeting or prohibit the letting to, for example, students. This is based on CC article 5:112 par. 4, which explicitly allows by-laws to incorporate provisions that regulate use of the apartments, which may also include a provision that the general meeting may prohibit the use of an apartment for important reasons as described in the by-laws. An absolute prohibition on letting in the by-

laws would, however, be null and void as an unreasonable burden on the free disposal of apartments.161

(c)Maria’s neighbour Benjamin cannot claim that he should have been offered the apartment for sale first, before it was sold to Anne: first, because there was no such agreement between Benjamin and Maria, and second, because the by-laws do not provide that there is an automatic right of pre-emption in favour of owners in the scheme, when-

ever a unit is sold. Such right can be created in the by-laws in favour of the other owners.162

Descriptive formants

The answers above are based on the general legal principle that the free transfer of goods may not be restricted by a provision in the deed of subdivision, which has effect erga omnes except in the case of a condominium structured on a hereditary land lease on account of the special characteristics of such an institution. It may, however, be agreed contractually between individual contracting parties.

160Mertens, Appartementsrecht, pp. 111, 112 and 119.

161Mertens, Appartementsrecht, ch. 3; Mijnssen et al., Asser’s Handleiding no. 437.

162Mijnssen et al., Asser’s Handleiding nos. 424 and 487; Court of appeal (Gerechtshof) Amsterdam 20 April 2006, Notamail 2006, 200.

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The Dutch Constitution contains a prohibition on discrimination (art. 1). This has been further regulated in the General Law on Equal Treatment. The fact that the by-laws may contain a provision in which the prior approval from the association of owners is required for anyone (including tenants) who wants to use the apartment is based on an interpretation of CC art. 5:112 no. 4.

Metalegal formants

The fact that the by-laws of the scheme may in some circumstances include certain rules as to the type of persons to whom the use of apartments may be transferred is based on the assumption that residents of condominiums (apartment right schemes) are more dependent on, and have more frequent contact with, each other than residents of single houses. This allows them to determine to some extent the people with whom they want to live in the scheme. Some authors therefore argue that there is less need for any such rules where the interdependency of residents is less than is ordinarily the case. In other words, the less interdependency there is between residents, the weaker the justification for a limitation on use, especially in cases where the right to use is denied to a prospective resident. This view is likely to be adopted by the courts. Although the by-laws may still validly provide that such use is subject to prior approval by the association of owners, specific decisions by the association to deny the use to a resident will be annulled more readily by the courts as contrary to reasonableness and fairness where there is only a small amount of interdependence between the residents.

Norway

Operative rules

(a) By-laws stating that lesbians cannot buy sections would be invalid, as the Law on Owned Units of 1997 contains a provision against discrimination on the ground of, among others, sexual orientation (s. 3 a) despite the fact that there is no general ban on discrimination on the grounds of sexual orientation in Norwegian law. Norwegian law does not recognise such or other restrictions in the title deeds of individual units. The Supreme Court has held that any restrictions that could not validly have been included in the by-laws cannot be inserted as restrictive conditions in a sale agreement (typically for the first sale of the unit

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unit. This turned out to be too strict in some specific cases and the 1997 Law is more flexible.

Municipalities (and some other public bodies) need to buy apartments now and then in order to rent them out to social security recipients etc., and legislation provides for such acquisition regardless of restrictions in by-laws (Law on Owned Units s. 22(4)).

Poland

Operative rules

(a)It is unknown in Polish practice for constitutive deeds of condominiums to contain provisions that prohibit the sale and transfer of units to lesbians or make the sale subject to the approval of the management body. The refusal of the management body to allow Anne entry into the community will militate against Maria’s right of free disposal. Moreover, a refusal to sell to lesbians will, in appropriate circumstances, violate Anne’s constitutional right to dignity and freedom.

(b)The ownership of a unit is exclusive to the individual unit owner concerned. The community of owners has no powers whatever with respect to that unit, as its power to make rules and regulations is limited to the common property. Furthermore, the Civil Code requires that legal acts must not contravene the law, the principles of community life or be aimed at circumventing the law (CC art. 58). This applies also to by-laws that are adopted by resolutions of the general meeting.

Therefore, by-laws are not allowed to burden unit owners with obligations that would otherwise be illegal, against community values or circumvent the law. Ownership of a unit entitles an owner to exercise the most extensive powers of disposal. Consequently, a unit owner’s absolute right to let his or her unit to any person they please may not be restricted in the by-laws of the scheme.

(c) The Polish Law on Unit Ownership does not grant a right of preemption to owners of neighbouring units. The Polish CC, however, allows Maria to grant a contractual right of pre-emption to Benjamin (art. 596 ff.). In such a case, Maria may enter into a conditional contract of sale with a potential buyer but is obliged to inform Benjamin of the content of the sale and the sale price. Benjamin then has a month to exercise his right of pre-emption and conclude the contract with Maria and take the place of the potential buyer. Benjamin is not allowed to negotiate the price or other contract terms with Maria (e.g. concerning time and manner of payment) but he will not be bound

by terms that are aimed at preventing him from exercising his right of pre-emption (CC art. 600 § 2). If Maria sells the unit in violation of Benjamin’s right of pre-emption, Benjamin may sue her for financial loss, and if the right of pre-emption is registered in the land register, for transfer of the unit to himself (CC art. 59, the so-called actio Pauliana).

Descriptive formants

The above answers are based on CC art. 140. This article directs an owner to act within the limits of applicable law, the values of a civilised community and the socio-economic purpose of the right of ownership. It is generally accepted that the only potential limitations on unit owners’ powers of disposition relate to the use and enjoyment of the right of ownership and not to its disposal. None of the above would justify imposing any formal limitations on either the sale or letting of the unit as described in the case scenario. Furthermore, any attempt to introduce sexual preferences as a criterion for any disposition of property, would violate both constitutional and statutory provisions against discrimination.

Metalegal formants

Polish law seems to disapprove of any limitations on the free disposal of a unit, even if such a limitation, for example, a prohibition on short leases or the grant of a statutory right of pre-emption to neighbouring owners, could benefit the condominium community and advance the homogeneity of the scheme.

Portugal

Operative rules

(a) The Portuguese Constitution guarantees a person’s right to private property and the free transmission thereof during life or on death (art. 62). In principle, an owner has absolute rights of disposal over his apartment (CC art. 1305), including the right to alienate, lease, exchange, mortgage and burden the apartment with personal or praedial servitudes. The power to alienate includes, inter alia, a right to donate and also to bequeath an apartment mortis causa. It is further accepted that an apartment can be attached in execution, expropriated for public purposes and acquired by prescription. In Portugal, any restrictions on the owner’s power of disposal in the constitutive title

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of the condominium, such as making a sale subject to the approval of the manager or a prohibition on letting of apartments, would have no effect on the sale or lease of an apartment.

Furthermore, any prohibition on selling the apartment to lesbians would be unconstitutional. The Portuguese Constitution stipulates that no one shall be privileged, favoured, prejudiced, deprived of any right or exempted from any duty on the basis of ancestry, sex, race, language, place of origin, religion, political or ideological beliefs, education, economic situation, social circumstances or sexual orientation (art. 13 par. 2). The provisions of the Constitution with regard to rights, freedoms and guarantees, are directly applicable to and binding on public and private persons and legal entities (art. 18 par. 1). This legality principle binds the relevant public officials and notary alike. They are not allowed to certify as acceptable a title deed of a condominium containing such a discriminatory restriction (Notary Code art. 173(1) (a)). The legality principle would also render the restriction that makes the sale of units subject to the approval of the manager unconstitutional. Consequently, the manager could not rely on any of the two clauses in the constitutive title to refuse Anne entry into the condominium.

(b)With regard to the prohibition on letting of apartments in the bylaws of the scheme, it is doubtful whether owners could by unanimous resolution validly insert such an absolute prohibition in the by-laws. Some authors are of the opinion that although an absolute prohibition on letting would be invalid, a prohibition on the letting of apartments, for example, for periods shorter than a week would be acceptable.164

(c)The Portuguese CC states expressly that an apartment owner is not entitled to a right of pre-emption in the case of the sale of a unit in the scheme (art. 1423). Consequently, Maria is not obliged to offer Benjamin the apartment for sale before it is sold to Anne. The inclusion of such a rule in the constitutive title would not, however, entail its invalidity. Similarly, owners may validly agree to insert a right of preemption in the by-laws of the scheme.

Descriptive formants

The response is based on the provisions of the Civil Code, which regulate the powers of the owner of a unit, in particular, the power of disposal (CC arts. 1305 and 1420). The response also deals with the

164Mota Pinto, Direito Reais (1971), p. 112; Almeida Costa, ‘Cla´usulas de inalienabilidade’ (1997), p. 37.