Экзамен зачет учебный год 2023 / European Condominium Law
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(c) The Law on Real Estate Cooperatives does not recognise a statutory right of pre-emption on the part of Benjamin. In light of the principles discussed above, a member is free to sell his share to anybody and need not offer it to Benjamin first.
In the case of owned apartments (a¨garla¨genheter), the owners can freely sell and let their apartments on free market principles without being hampered by having to obtain the approval of an official body or by a right of pre-emption existing with regard to the apartment.
Descriptive formants
Swedish society accepts these rules and the system can handle conflicts, which arise every now and then.
Metalegal formants
In practice the limitation on a shareholder’s entitlement to let his apartment is questioned. This is especially prevalent in cases where the holder wants to postpone the sale of his share until the financial market is more favourable but for some reason or other does not want to reside in the apartment, for example, if he has inherited a house. The non-existence of a right of pre-emption is considered by some to have a negative impact on the real estate market, especially in the sphere of sale and lease-back transactions.
Case 3
Who is responsible for maintenance?
Five years after all the units in a condominium scheme have been sold to purchasers it is discovered that:
(a)water leaks through the flat roof of a terrace apartment on the top of the building into the apartment below;
(b)a hot water installation which serves only the units on the top floor has become defective;
(c)a water pipe embedded in the outside wall of one of the apartments leaks; and
(d)the outside windows of one of the apartments are broken by a strong wind.
The management body requests the owners of the apartments concerned to carry out the repairs. The owners refuse contending that either the management body or the developer of the scheme should carry out the repairs. The owner of the apartment with the broken windows repairs the windows and claims the cost from the management body.
Comparative observations
Operative rules
In order to resolve questions regarding maintenance of the condominium building and its facilities, the first step is to consider the liability of those involved in the construction of the building, including the developer and the building contractor, among others.177 In the event that such liability has expired or prescribed, the general rule is that that the community of owners or the management body is responsible for
177Catalan, Danish, French, German, Greek, Italian, Croatian, Norwegian, Portuguese and South African reports. The Polish report details an interesting array of remedies, which can be instituted against the developer and other parties involved in the construction of the building.
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repairs to the common property, while the individual owners are responsible for repairs required within the walls of their apartments.178
(a)If water leaks through the flat roof of a terrace apartment on the top floor of the building into the apartments below, most jurisdictions would classify this as a structural defect in a common element of the condominium building. Most jurisdictions impose at least some liability on developers and/or contractors for structural defects occurring within a period
of five to ten years after the construction of the building has been completed.179 If for some reason the costs of the repair of the defect cannot be
recovered from the developer or relevant contractor, most jurisdictions would attribute the defect to part of the common property and would,
therefore, burden the community of owners (management body) with the obligation to make the necessary repairs.180 In jurisdictions where the
boundaries of an apartment extend to the median line of the flat roof, the
repair costs are borne either by the management body or the individual owner concerned, depending on the location of the origin of the leak.181
In Italy, if the water is leaking through a solar panel designated for communal use, the apartment owners who derive the greatest benefit from the solar panel must contribute one-third of the overall expense, while the remaining two-thirds will be apportioned between the remaining unit owners in accordance with their quotas if the solar panel forms part of the common property.
(b)If a water installation that serves only the units on the top floor has become defective, the liability of the supplier or the developer and builder for supplying defective equipment can generally only be estab-
lished where the defect has arisen within one or two years of the installation of the unit.182 Otherwise, the crucial question would be whether the community of owners as a whole183 is responsible for
178Interestingly, in Austrian law the owners’ association is responsible for rectifying defects inside individual units which are classed as ‘serious defects of the building’. These are defects that could compromise the structure of the building if left unrepaired, for example, a burst pipe, or a defect in an electricity conduit that increases the risk of fire.
179Catalan, English, French, German, Greek, Norwegian, Polish, Portuguese, Slovenian and South African reports. Interestingly, the English and French legislation compel the developer to have insurance cover for liability for future defects, while the South African law requires the establishment of a special fund to compensate purchasers who suffer loss on account of structural and other defects.
180Belgian, Catalan, Danish, English, French, Estonian, Greek, Irish, Dutch, Polish,
Croatian, Scots, Slovenian, Spanish and Swedish reports.
181 South African and Dutch reports. |
182 Catalan and French reports. |
183Danish, English, Estonian, French (in statute), Greek, Norwegian, Polish, Slovenian, Spanish and Swedish reports.
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the repair of the water installation or whether the responsibility should be limited to the owners served by184 the water installation.185
(c)Developers are generally liable for five years after the completion of
the building for a structural defect such as the leaking water pipe in the outside wall of an apartment.186 With regard to the question of the respon-
sibility for repairs after five years, some jurisdictions classify all water
pipes as common property and place the responsibility for repairs on the community of owners (management body).187 However, for jurisdic-
tions that consider the median line of the outside wall as the boundary
between the apartment itself and the common property, the precise location of the leaking water pipe would be crucial.188 Logically, if the water
pipe is located within the median line the responsibility for repairs lies
with the owner concerned, while the community of owners are obliged to repair the pipe if it is located outside the median line.189 In other jurisdic-
tions, the crucial question is whether the leak originated in the main
pipe carrying water to all the apartments in the condominium or in the part of the pipe that branches off to an individual apartment.190 If it is
the latter, the unit owner concerned would be responsible for the repairs and if the former, the community of owners would be responsible.191
(d)In the case of the broken window, the answer would again depend on whether outside windows of an apartment are regarded as
part of the common property or as part of the individual apartments. Some jurisdictions regard windows as part of the common property,192
184Austrian, Catalan, French (Supreme Court), Greek, Italian, Dutch, Norwegian
(if regulated in by-laws), Polish, Portuguese, Scots, Slovenian (if described as limited common property), Croatian, South African and Spanish (Supreme Court) reports.
185
187
188
The English report notes that owners who derive benefit from the water installation may be required to pay higher assessments.
For liability in tort, see the Catalan and Danish reports. 186 Catalan report. Catalan, English, Estonian, French, Irish, Dutch, Polish, Croatian, Spanish and Swedish reports.
Portuguese report.
190Danish, Greek (50 per cent by owner if situated in the non-structural part of the wall), Dutch (if for benefit of a single owner), Norwegian, Polish (smaller pipes), Scots and Slovenian reports.
191The Estonian report considers branched-off pipes still as common property for which the community of owners is responsible.
192Austrian, German, Danish, English, Irish (depending on the lease), Dutch, Spanish, Croatian and Swedish reports. The German report mentions that the relevant owner can repair the windows and claim the cost from the manager, if the repair was a matter of urgency, leaving no time to contact the manager. If not, the owner can claim only the costs that the manager would objectively have had to spend had the owner in question not undertaken the repair himself.
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while others regard them as forming part of individual apartments,193 meaning the responsibility for repairs is apportioned differently across the various jurisdictions. The South African statute occupies the middle ground by considering the windows as part of the outside wall. Consequently, the part of the window between the median line and the outside wall, is considered common property, while the part between the median line and the inside wall is part of the relevant apartment. The responsibility for the repair of the window is thus divided equally between the community of owners and the individual owner concerned.194
If in any of the above cases the responsibility for repairs rests with the community of owners (the management body), and the repairs are undertaken by the individual owner concerned, the latter would be able to claim the cost of the repairs from the former.195 Liability for damage caused by the non-repair of any of the above defects would rest with the party responsible for the repairs, but only if they either were aware or should have been aware that repair was needed but negligently failed to undertake the necessary repairs.196
Descriptive formants
The responsibility of the developer and other agents in the construction of the building for structural and other defects is governed by the provisions of the various Civil Codes and/or special consumer protection legislation. In the event that all possible claims against the developer and his contractors have prescribed, the division of responsibility for maintenance and repairs between the community of owners and individual owners is mainly regulated by domestic condominium statutes, by-laws (or regulations) and the articles of association if applicable. In isolated cases (such as in Greece), the provisions on ordinary co-ownership in the Civil Codes will be relevant, and in grey areas, the courts and jurisprudence of the various jurisdictions197 will be called upon to resolve contentious issues.
193Catalan, French, Greek, Italian, Dutch (unless the association has insured against broken windows), Polish, Portuguese, Scots and Slovenian reports.
194Norwegian report that purports to distinguish between inside and outside repairs of windows.
195Danish, Estonian, Irish (only as set-off against future charges), Norwegian, Spanish and Swedish reports. Note that the English and South African reports do not allow
such recourse. |
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196 Austrian, Catalan, Greek and Slovenian reports. |
197 French and Polish reports. |
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Metalegal formants
For Croatia, it is reported that maintenance and repairs present a serious issue in many condominium communities. As a result of socialist cultural heritage, standards of maintenance in condominium schemes are often unsatisfactory. This might also be a consequence of the fairly lax approach to enforcement in this area. The problem is exacerbated by a general state of poverty, even among unit owners, who are reluctant to leave their property despite being unable to pay maintenance contributions. In cases where major repairs are needed, such as damage to the roof, basement flooding or decaying fac¸ades, the co-owners are sometimes forced to seek financial assistance from the bank. Naturally, the bank will insist on taking a mortgage over units in the property.
The manner of dealing with claims arising out of defective construction against developers is one of the most controversial topics in apartment ownership law primarily because the law does not adequately regulate this area. Claims are based on the purchase contracts and thus on the original rights of individual owners. The extent to which the owners’ association can interfere with and manage these claims is hotly disputed. On a time scale, the relevant issues commence with the question of who is responsible for accepting that the building has been completed because, in particular, this act triggers the running of the statutory limitation period. Some contend that the owners’ association has the power to manage the acceptance on behalf of all owners and the right, by way of a majority resolution, to pursue any individual claims as a common matter.198
Several instances of structural defects in large scale developments, in particular resort condominiums in Spain, led to the introduction of consumer protection measures setting strict building specification for the erection of buildings. Unfortunately, domestic courts have not had sufficient opportunities to rule on the new technical requirements and quality standards (see, for example, the Greek and Catalan reports). To further protect purchasers against defects certain jurisdictions, such as France, make it compulsory for developers to insure against structural and other defects or, as in England, allow recourse in some circumstances to the self-regulating body overseeing the building industry. In a similar vein, South Africa established a special fund to
198 German report.
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which all homebuilders must contribute in order to meet the claims of condominium communities and individual owners on account of defective workmanship.
In the division of responsibility between the community of owners and individual owners, there is a tendency to stress the common interest and to burden the community of owners rather than the individual owners with the repair of structural and strategic parts of the condominium. Additionally, the notions of accessibility and control and the service or benefit theory are employed to shift responsibility for maintenance and repair to the party or parties that benefit the most from such work. With regard to the repair of outside windows it is stressed that consideration must be given to the effect non-repair is likely to have on the outside of the building when determining who should be responsible for their repair.
Austria
Operative rules
Austrian apartment ownership law contains fairly clear provisions in this regard. The unit owners’ association is responsible for maintenance of the common property (Law on Apartment Ownership § 28 par. 1 no. 1)199 and also assumes responsibility for rectifying defects affecting individual apartments that are classed as ‘serious defects of the building’.200 These are defects that could compromise the structure of the building if left unrepaired, for example, a burst pipe or a defect in an electricity conduit installation which increases the risk of fire. Otherwise, the responsibility for maintenance of individual sections and exclusive facilities lies with the respective sectional owners (§ 16 par. 3).
The common property of a building includes its roof, its fac¸ade, the windows, the entrance doors to the individual units, the stairwell, supply pipes, the entrance to the scheme and common elevators. Consequently, the body corporate is responsible for the repair of defects to the roof,201 water pipes202 and windows.203 With regard to the hot water installation, the liability for repair depends on whether
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Hausmann, Osterreichisches Wohnrecht, § 2 WEG no. 36 ff. |
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200 |
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Lo¨ cker, Osterreichisches Wohnrecht, § 28 WEG no. 55 ff. |
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201 |
Cf RIS-Justiz RS0082890 [T7]; LGZ Wien 45 R 323/85 MietSlg 37.619. |
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202 |
Cf RIS-Justiz RS0069985. |
203 Cf RIS-Justiz RS0082890 [T7], RS0110497. |
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or not the defect poses a threat to the structure of the building. Fixing a leak that causes water ingress, for example, would be the obligation of the unit owners’ association. A defect in a boiler on the other hand, which does not threaten the structure of the building, is the responsibility of the sectional owner concerned. Austrian apartment ownership law is fairly clear when it comes to allocation of responsibility, although there will inevitably be cases where the line can be blurred to some extent.
When it comes to the maintenance obligations of the owners’ association, the position is clear. The repairs can be carried out if approved by a majority of the unit owners (see Case 8 for further details). Even without such a resolution, the manager is obliged to take all necessary measures at his own discretion.204 In the event of failure on the part of the owners’ association to comply with its maintenance obligations (Law on Apartment Ownership § 28 par. 1 no. 1), then any individual owner can seek a court order through noncontentious proceedings instructing the association to carry out necessary repairs (§ 30 par. 1 no. 1).205 If the owners’ association, despite a request by the owners, fails to carry out necessary repairs for which it is responsible, an owner can undertake the repairs (e.g. the replacement of the broken windows) at his or her own expense and claim reimbursement from the owners’ association.
Potential claims against the developer must be assessed independently of maintenance obligations under apartment ownership law. The general provisions of the CC are decisive in this regard. Warranty claims relating to immoveable property are subject to limitation after three years from the date of construction, which extinguishes these claims entirely (§ 933). A claim for damages (§ 1293 ff.) could be possible, provided that the defect was caused by the developer.
Descriptive formants
It must be noted that, in practice, contracts of sale of units are regularly drafted to include provisions that deviate from the statutory rules. These impose obligations of maintenance on the individual sectional owners that go beyond the obligations listed in the Law on Apartment Ownership (§ 16 par. 3). For example, the obligation to
204 |
Cf RIS-Justiz RS0122841. |
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Cf Vonkilch, Osterreichisches Wohnrecht § 30 WEG no. 13 ff. |
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repair windows or doors may well be imposed on individual owners rather than the body corporate.
It is also noteworthy that Austrian jurisprudence applies the above statutory provisions analogously to accessories to units, such as basement partitions and garden areas, which are linked to a particular unit.206 It follows that the individual owner is responsible for their maintenance.
Metalegal formants
The provisions of the Law on Apartment Ownership dealing with the maintenance obligations of the owners’ association explicitly obliges the association to undertake the specific measures of repair listed in § 3 par. 2 of the Law on Tenancy (§ 28 par. 1 no. 1). In this way the Law of Tenancy plays a significant role when it comes to allocating responsibility for repair works in an apartment ownership scheme.
Belgium
Operative rules
The central question in this case is whether the roof of the apartment is to be considered a common part or part of a private unit of the apartment building. The CC requires that the deed of subdivision (basisakte/acte de base) must contain a description of the private and common parts of the scheme (art. 577-4 §1 par. 2). The developer has a certain amount of freedom in preparing the description,207 but if the description is not complete or contradictions arise, the subsidiary criterion offered by the law is simply that parts intended for common use by all co-owners or a group of owners are common parts (art. 577-3 par. 3). Case law and jurisprudence have developed a list of criteria that can be referred to if the deed of division is incomplete or unclear. In the present case, no list is mentioned, and therefore the general criterion must be applied to decide whether a particular part of the scheme is common or private property.
The roof of a building is always considered to be part of the common property.208 Decisions about repair works related to the roof can, in
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Lo¨ cker, Osterreichisches Wohnrecht, § 28 WEG no. 55. |
207Thoen, ‘De syndicus, de statuten en de rechter’ (2005), p. 42, no. 37 ff; Timmermans, Handboek, p. 79, no. 60.
208Timmermans, Handboek, pp. 83–4, no. 65.
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principle, be taken by the general meeting. Costs will be divided between all the owners in accordance with the allocation set out in the by-laws. The deed of subdivision can award a roof terrace the status of a private unit, a common part or a common part for the exclusive use of one or more owners. If the deed does not contain a specific description, the roof terraces are considered common parts.209 As no such information is given in the case description, the general classification as part of the common property would apply here.
(b) A central heating installation is usually divided into common and private parts, respectively the burner, the fuel kettle and pipes, and the radiators.210 By analogy hot water installations could be classified as partially common, partially private. It is up to the notary public who prepares the deed of subdivision to make a clear description of the status of these components of the central heating installation. However, in this case there is an added complication, namely, that the installation is not used by all co-owners, but only a select group of
owners. As stated above, it is possible to classify common parts as destined for the exclusive use of one or more co-owners.211 In such
an instance, the owners can agree that costs connected to the common parts must be allocated among the owners according to the benefit test, that is, according to the use each owner makes of that particular common part, and thus rest solely with the owners to whom the hot water installation was allocated (art. 577-2 § 9).212
(c)Water pipes qualify as common parts.213 Responsibility for decisions as to their repair and maintenance therefore lies with the owners’ association.
(d)Outside windows on the other hand form part of private units.214 The main purpose of the owners’ association is the preservation
and management of the condominium (CC art. 577-3 § 3). Decisions relating to the repair of common parts are therefore made by one of the association’s organs, in casu, the general meeting. A three-quarter majority resolution is required, except for provisional measures, which can be taken by the scheme manager (art. 577-7, §1, no. 1b). An individual owner can nevertheless seek the permission of a judge
209Timmermans, Handboek, p. 170; Gerlo, ‘Mede-eigendom’ (2003), p. 18.
210Timmermans, Handboek, p. 104, no. 91.
211The 2010 amendment of CC art. 577–3, par. 4 expressly recognises the validity of ‘common parts with exclusive use’, which was heavily debated up to 2010.
212Snaet, ‘Het onderscheid tussen private en gemeenschappelijke delen’ (1999), p. 62
213 Timmermans, Handboek, p. 164. |
214 Timmermans, Handboek, p. 179. |