Экзамен зачет учебный год 2023 / European Condominium Law

relationship between the Constitution and private law, namely, the right to private property (art. 62), the principle of equality and nondiscrimination (art. 13) and the legally binding force of the Constitution (art 18).

Metalegal formants

(a)A restriction on alienation would hamper the freedom of owners to sell their apartments, and would thus impinge upon one of the core entitlements of ownership, that is, the free disposal of a unit. Portuguese legislation has never intended to protect the social harmony and financial security of a condominium through imposing limits on an owner’s freedom of alienation. It is generally assumed that the identity of the buyer is determined through the operation of market forces at the moment of sale. Therefore, the title conditions cannot impose a requirement of prior consent by the manager to any proposed transfer of condominium units. Further, the prohibition against discrimination on the ground of sexual orientation, laid down in the Portuguese Constitution (art. 13), would render partially invalid any constitutive title containing a prohibition on selling units to lesbians.

(b)An absolute prohibition on the letting out of apartments is wholly unacceptable in Portugal. Academic opinions are, however, in favour of certain restrictions on letting of apartments, for example, for very short periods in order to prevent the harmony of the scheme being disrupted by an incessant flow of new tenants.

(c)There is a perception that the existence of a right of first refusal in favour of other scheme owners whenever a unit is sold could lead to the depreciation in value of the units in the condominium, and so affect the legitimate interests of owners. The perception is that the fact that the right of pre-emption must first be sorted out in any sale of an apartment is likely to result in sparse interest in such a sale and diminish the sale price of an apartment.

Scotland

Operative rules

Virtually all of such restrictions are ineffective under TMS tenements in Scotland. Any restriction imposed by individual developers outside of the statutory TMS scheme can only take the form of real burdens. However, in order to enforce a real burden, the person needs to have interest to enforce the burden. In short the person would need to

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demonstrate ‘material detriment’ suffered if the breach is not remedied. And the threshold of ‘material’ detriment seems to be quite high, possibly unexpectedly, from the limited number of cases since the commencement of Title Conditions (Scotland) Act 2003. It is unthinkable that any neighbour would suffer material detriment if the apartment is sold or rented to a lesbian without the consent of the management body (there won’t be one in the first place!).

The situation is very different under any new development adopting the Development Management Scheme. A DMS can have its own rules, and create new ones.165 These rules are enforced by its manager,166 or individual owners if enabled by the founding document of the DMS.167 These rules are not real burdens. Therefore, the question of interest to enforce does not come into play. However, any rule made by the DMS is subject to challenge by individual owners at the Lands Tribunal for Scotland.168 The Tribunal will decide if it is ‘reasonable’ to grant the desired variation, discharge or preservation of a rule. The Tribunal will take into account the factors listed in the statutory instrument as well as other material factors, such as any change of circumstances or lapse of time since the creation of the rule, the benefit conferred on other units, the impediment of enjoyment on the burdened unit, the practicability and cost of complying with the rule, the purpose of the rule and so on.169 It is plainly impossible for the Tribunal to ever endorse or protect a restriction directed at homosexual people. Discrimination based on sexual orientation is clearly outlawed by statutes in the UK.170

It is to be noted that a ‘regulation’ is a completely different concept from a rule in the context of DMS, and this will be explained under Case 7 below.

Descriptive formants

The law of real burdens still plays a significant role in the context of tenement flats in Scotland, despite a codification statute. Its principles and most of the ensuing rules were developed in a completely different era and social settings. And it is always a question of whether an individual real burden can be enforced on each occasion, which can be very inconvenient because, in many cases, one can only guess

165Title Conditions (Scotland) Act 2003; (Development Management Scheme) Order 2009, art 8.

170 Most important as of now would be the Equality Act 2010.

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discrimination, among others, on the ground of sexual orientation (art. 14).172 The ban on disposal of a unit without the approval of the

management body in the deed of establishment (title conditions) would also be void as an unacceptable restriction on the right of a unit owner to freely dispose of his or her unit.

(b)The Property Code allows the community by-laws to contain ‘special restrictions on the use and disposal of individual units’ (art. 116(1)). There is, however, no case law to clarify which restrictions are permissible. According to legal doctrine, the community by-laws may forbid a change from residential to commercial use, or restrict certain economic activities inside a unit, for example, to allow an activity to be carried out only on weekdays or twice a week. An absolute prohibition on letting an apartment as envisaged in this case would, however, be null and void. Consequently, if Maria lets her apartment to Anne, the management body would not be able to refuse Anne entry into the condominium. Nonetheless, it is possible to impose certain limitations, for example, a

ban on letting apartments for shorter periods of time to ensure that the apartment would not be exploited as a holiday facility.173 Naturally, the

discriminatory limitations on the letting of apartments, as in the case of a ban on letting apartments to lesbians, would be unconstitutional (Constitution art. 14).

(c)The Property Code recognises a right of pre-emption in favour of the other owners on the sale of a unit in a condominium scheme that consists of no more than five individual units owned by two or more apartment owners (art. 124). Consequently, Benjamin has the right to be offered the apartment on the same conditions as it was offered to Anne. In the case of infringement of his right, he may sue for annulment of the

sale between Maria and Anne. The judicial decision annulling the sale would automatically render the transfer of title to Anne ineffective.174

Benjamin would not have a right of pre-emption in larger schemes unless he has entered into an agreement with Maria to secure a right of pre-emption or an option to purchase the apartment, and this was registered in the land register. If no proper condominium has been established, and the title to apartments is based upon undivided

172Juhart et al., Stvarno pravo (2007), p. 347.

173Rijavec, Stvarnopravni zakonik s komentarjem (2004), p. 559; Juhart et al., Stvarno pravo, p. 347.

174The Property Code adopts the causal system of transfer which requires a valid underlying contract (art. 40). See Vrenčur, Stvarno pravo za posrednike pri prometu z nepremičninami (2005), p. 45.

co-ownership shares, Benjamin will have a statutory right of pre-emption irrespective of the size of the building (Property Code art. 66(3)).

Descriptive formants

As a general principle, the free disposal of property (apartments) may not be restricted by clauses in the deed of establishment of a condominium (title conditions) that would affect the whole world (erga omnes). It may, however, be agreed contractually between the owners and inserted in the community by-laws. But even in such a case an absolute ban, for instance, on the letting of apartments, would be null and void. An infringement of a lesser limitation in the by-laws would expose the apartment owner to sanctions, but cannot affect the validity of the transfer of title to the apartment, which is regulated in the Property Code (arts. 39, 40, 49 and 112). The Property Code also regulates the statutory right of pre-emption conferred on the other apartment owners in condominium schemes (art. 124).

There is no legislation or case law on the question as to what limitations may be inserted in the community by-laws as to letting an apartment or to choosing the types of tenants that may rent an apartment. Consequently, the answers to the above questions are partly based upon doctrine.

Metalegal formants

Residents in condominiums live in very close physical proximity to one another and so they naturally have more frequent contact with each other than residents of single homes. This mutual interdependence between apartment owners is the main reason why a condominium community would like to restrict the disposal or use of apartments. However, in Slovenia, one of the most important rights of the owner is his power to alienate or to let his property. Only in small buildings, where the relations between the owners are considered to be especially close, are the other apartment owners granted a statutory right of preemption. By exercising this right, each of them may prevent a sale to a person whom he or she deems unsuitable on any grounds whatsoever without having to justify his or her refusal. Any restrictions on the use of individual units must be agreed between the apartment owners and inserted in the community by-laws, but this almost never occurs in practice. The apartment owners are generally not interested in formulating such rules and there are no general ‘model rules’ available, such as in the Netherlands.

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Spain

Operative rules

(a)If the management body refuses to allow the purchase of the flat by Anne because she is a lesbian, either she or Maria can challenge the clause in the title conditions on the ground that it is in conflict with the Spanish Constitution, which forbids any form of discrimination (art. 14), and is thus null and void (nula de pleno derecho). If entry into Maria’s apartment is denied on the ground that the management body did not approve the sale of the apartment to Anne, this may be challenged on the basis of the Spanish CC that guarantees the freedom of contract (art. 1255). The relevant provision contains a prohibition against clauses in a contract that are against the law, social morality and the public order (and so would be unreasonable or arbitrary). It would be difficult to brand a clause making entry to the apartment subject to the approval of the management organ as unreasonable or arbitrary. Furthermore, it could be argued that Maria tacitly accepted the terms of the title deed when she bought into the condominium scheme.

(b)If Maria has voted in favour of the new by-laws, or has not challenged the by-law, she will be bound by this particular restriction. This view is supported by the fact that an owner has the right to object to any resolutions passed at the general meeting which cause him or her any kind of damage or burden that he or she is not required to accept nor bear, or if the resolution constitutes an abuse of law (Law on Horizontal Property art. 18.1.c)

However, since this particular clause is expressed in absolute terms, the better view is that its form is not acceptable given that it contravenes the principle of freedom of contract enshrined in the Spanish Civil Code (art. 1255), and also because any such provision goes against the owner’s right of free disposal. However, the Law on Horizontal Property provides that an owner or occupier of an apartment, office or business premises cannot carry on an activity in his or her unit that is forbidden in the by-laws (art. 7.2). As by-laws must be adopted by unanimous vote, the owners concerned will have had an opportunity to veto this particular by-law and are therefore bound by it. The counter argument would be that such an absolute prohibition against the letting of apartments would infringe Maria’s right of free disposal of her unit.

(c)The Law on Horizontal Property does not confer a right of preemption (tanteo or retracto) on any neighbouring unit owner. If Benjamin had been a tenant of that unit, he would have had such a right in

terms of the Law on Tenancy, but as a neighbouring owner he does not have such a right unless set out in the title provisions or in the by-laws.

Descriptive formants

(a)Neither of the above restrictions against alienation of a unit is contained in the Law on Horizontal Property. The prohibition against discrimination on the ground of sexual orientation is part of the Bill of Rights enshrined in the Spanish Constitution. Freedom of contract (under which is included freedom of disposal) is a general principle of the Spanish Civil Code.

(b)The Law on Horizontal Property allows certain restrictions on the use of the building and units in condominiums (arts. 5 and 6) but such restrictions conflict with the overall principle of freedom of contract. In all likelihood, certain restrictions would be treated as acceptable by the courts on a case by case basis.

(c)The absence of a right of pre-emption in the Law on Horizontal Property and the by-laws dictates the answer to this question.

Metalegal formants

(a)In principle, a restriction on the sale of apartments in the scheme is not incompatible with condominium ownership. However, it is problematic to determine the criteria and persons responsible for picking prospective purchasers. In final analysis any restrictions on the right of disposal of an apartment owner in the title deeds or the by-laws of the scheme must be reasonable and non-discriminatory.

(b)An absolute prohibition on the letting out of apartments is unacceptable. However, the prohibition on some forms of letting may be permitted if this kind of lease is incompatible with the characteristics of a particular condominium.

(c)The Law on Horizontal Property does not confer a right of preemption on owners of units. By contrast, in order to promote the purchase of houses by tenants, the Law on Urban Leases of 1994 grants a right of pre-emption to sitting tenants in the case of a sale of the leased premises (art. 25)

Sweden

Operative rules

Under Swedish law a management body has only very limited grounds for refusing Anne entry into a condominium. First and foremost, the

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management body can only make decisions that are in line with the legislation and the by-laws of the real estate cooperative association (bostadsra¨ttsfo¨rening). An underlying principle of the real estate cooperative association is that the association is open to everybody unless there is a particular reason why a person should not be admitted. An example of such a reason would be any financial problems of the person in question. The principle of ‘openness’ is, as one might expect, limited to the extent that there are only a certain number of apartments in the building or on the estate.

As the management body has to follow the scheme by-laws when considering membership in the association, it is important that these terms are acceptable according to fundamental principles of, for instance, equality and non-discrimination. For this reason the legislation gives particulars of terms that are lawful and those that are not (Law on Real Estate Cooperatives Ch. 2 s. 2). Examples of terms that are unacceptable are: a term that requires that the entrant must be of a certain nationality or not of certain specified nationalities; that the entrant’s sexual orientation must not be of a specific kind such as homosexuality; that the entrant’s income must be of a certain level and that the Rent Tribunal must approve the person’s entry into the scheme. The Law also makes provision for the voiding of terms that are obviously unreasonable.

(a)As stated above, the management body cannot refuse to allow Anne entry into the condominium unless they can advance a reason that is permitted by Swedish legislation. If a person, despite this, is denied entry, the law states that the decision has to be dealt with by the court – specifically the Rent Tribunal. In this case, the terms denying Anne entry into the real estate cooperative are void on account of the fact that they discriminates against Anne with regard to her sexual orientation and on the ground that they make her entry subject to the approval of the Rent Tribunal.

(b)According to the Law on Real Estate Cooperatives a member of a real estate cooperative association (bostadsra¨ttsfo¨rening) is permitted to let his or her apartment subject to the approval of the management body (Ch.7 s. 10). In the case of non-approval, the matter is taken to the Rent Tribunal, which will approve the letting of the apartment if the member, Maria, has a valid need to rent it out and the association has no legitimate reason to refuse the lease (Ch. 7 s. 11). An example of such a need would be if Maria wants to study abroad or in another city for a limited time period.