Экзамен зачет учебный год 2023 / European Condominium Law

to carry out urgent and necessary works to common parts (at the expense of the owners’ association) if the requisite majority is not achieved (art. 577-9 § 4). Expenses related to the common parts, including costs caused by repair works, are common expenses, which are borne by the owners’ association.215 The allocation of expenses among owners must be laid down in the by-laws of the scheme (art. 577-4 § 1 no. 2).

Repairs to private units are in principle the responsibility of the relevant owner.216 However, following the 2010 reform, the general assembly has the power to decide that repairs will be made to private units if these repairs are necessary for sound economic or technical reasons. For example, repairs may be justified if they are necessary to prevent damage to other parts of the building.217 This decision does not affect the fact that the cost of these repair works will be borne by the owner of the private unit in question (art. 577-7 §1 no. 1e).

Descriptive formants

The rules regarding responsibility for repairs are laid down in the amended Civil Code and in the by-laws of the scheme.

Metalegal formants

Although the condominium provisions in the Belgian CC are mandatory, there is one level at which the legislator leaves some space for individual autonomy, namely, for the division of the elements of the building between private units and common parts in the deed of subdivision. The legislator even leaves discretion for the creation of common parts that can be exclusively used by one or more owners, such as roof terraces, in order to achieve a coherent exploitation of these parts.

215Timmermans, De gemeenschappelijke lasten en schulden bij appartementsmedeeigendom, Deel I (2007), p. 19.

216Snaet, ‘De rechten en plichten’, p. 107.

217Sagaert, ‘De hervorming van het appartementsrecht door de wet van 2 juni 2010’ (2010–11), p. 185, no. 22; Timmermans, Handboek, no. 481. Before the 2010 reform, the Belgian Supreme Court ruled that the lack of powers of the association with regard to the private units does not hamper the association to request the owner of the private unit to carry out the works in order to avoid damages to other parts of the building (Belgian Supreme Court 1 April 2004, Arresten van het Hof van Cassatie 2004, 575, Rechtskundig Weekblad 2005–06, 1422).

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Catalonia

Operative rules

The Spanish Law on Construction of 1999 provides that the persons participating in the construction of a building (such as architects, quantity surveyors, professional developers, building contractors, carpenters and so on) are responsible for any damage caused by defective workmanship (art. 17.1). They are thus held liable for any structural defects that appear in the building within the next ten years, for any non-structural defects that appear within the next three years and also for any defects as to finer details that appear within a year after the construction was completed. Each of the above-mentioned persons will be held liable in accordance with their respective functions in the construction process: the architect is, for instance, liable for damages caused by any defects in the design of the construction, the quantity surveyor for any negligent supervision of the construction of the building or investigation of the land on which the building is constructed, and the building contractor for any poor workmanship.218 The president of the condominium has locus standi to claim for damages to both the common property and the individual apartments.219

(a) In view of the above, the water leak in the roof of the terrace apartment would amount to a structural defect appearing within the statutory period of ten years after the completion of the building. Those undertaking the construction of the roof, depending on the origin of the defect, would thus be taken to be liable for the physical damage caused by the defective roof. If no single respondent can be identified, all the contractors concerned can be sued jointly and severally for the damage.220 However, because the repairs are urgent, the management body of the condominium would be responsible in the first instance for undertaking repairs of the roof, as it forms part of the common elements.221 Once the repairs are complete, the costs may be recovered from the person legally liable for the defect (CCC art. 553-38.2).

In both (b) and (c) the defects or leaks, as the case may be, would amount to functional defects in specific installations and in that they

218Nasarre, ‘Tort Law Spain’ (2008), pp. 86–90.

219STS 21-12-2010 RJ 2011\144. The original owner and his successors have locus standi

in the case of individual apartments.

appeared outside the warranty period of three years or one year (the geyser), the persons who installed them would not be liable on account of the implied guarantee for any physical damage caused by these defects. This does not mean that the persons in question cannot be sued in tort (CC art. 1902). However, if this did occur, the claimant would have the onus of proving that the defect was caused by the negligence of the defendant. Even so, in principle, the hot water installation in (b) must be repaired by the owners who benefit from it because it is a common element that is reserved for the exclusive use of the top floor owners either as agreed by all owners or as stipulated for in the by-laws of the scheme (CC arts. 553-42 and 553-11.2) or inasmuch it is a common element that is subject to restricted use (CC article 553-38, see below). As the defect has not been caused by force majeure, the management body of the condominium is not responsible for the repair of the hot water installation (CC art. 553-42.2 and 3). Any repairs to the leaking water pipe are the responsibility of the management body, as it is part of the common property and serves all the owners in the scheme (CC art. 553-44).

If damage is caused as a result of the installation of defective windows, the law on defective products would govern the matter (Spanish Royal Legislative Decree on Consumer and User Protection of 2007). However, if the problem was indeed caused by the defective installation of the window, because the warranty statutory period of one year has by now passed the claimant must prove that the defective installation of the window was responsible for its damage by a strong wind. Finally, under CCC art 553-38 the windows would be taken to be common elements, which are subject to restrictive use of the owners concerned, and therefore the owner of the unit has to bear any ordinary or extraordinary expense such as the damage caused by the action of the wind.

Descriptive formants

The jurisprudence relating to article 1591 of the Spanish CC (still in force but with a narrow application to specific cases) was condensed in the Spanish Law on Construction of 1999. Both enactments are based on the notion that defects that appear within a certain period of time from the completion of the building (regardless of whether the claimant is the first or a subsequent buyer of the unit or a house) are presumed to be due to a defective construction, and therefore are presumed to be caused by the contractors concerned (all or some

Croatia

Operative rules

All of the cases concern the allocation of maintenance responsibilities and costs for certain repairs. In each of the cases, claims against the developer are possible, dependent on the nature of the defect. The developer is subject to special statutory liability not only towards the party he is contractually bound with via the building contract, but also towards any future owner if it is a structural defect (bitni zahtjev za građevinu) (Law on Obligations of 2005 art. 633(5)). The Law on Physical Planning and Building Act of 2007 contains a complicated list of structural defects (art. 14). The developer is liable if the defect is discovered in the period of ten years after possession of the building has been transferred to the new owners (Law on Obligations art. 633(1)). The developer’s liability of structural defects cannot be contractually excluded or even limited (art. 633(6)).

The developer is also liable under the contract of sale to the purchasers (unit owners) for latent defects in the building discovered within two years of performance under the contract (art. 605(2) read with art. 484(2)).

a)Fixing a leaking roof would be a necessary repair of a common part of the building, regardless of the fact that it is a flat roof. The owner of the apartment on the top of the building does not have a special duty to repair the roof, despite the fact that the roof is directly attached to his unit. The roof is considered as an essential structural element of the building, and the cost of repair would be covered by the common fund (Law on Ownership and Other Real Rights art. 90(1)).

b)A defective hot water installation serving the top floor units should be repaired by the unit owners served by it (art. 80(1)) unless the unit owners have agreed otherwise (art. 89(3)). Note that there may be a degree of controversy as to what constitutes a common element of a building. This is because the Regulation on the Maintenance of Buildings describes hot water installations in common parts of the building as common elements, while the Law on Ownership and Other Real Rights generally states that appliances that are for the benefit of a particular unit should be maintained and repaired by the unit served by it. The Law also gives the unit owners the option to contract out of the general regime (whereby all unit owners participate in the common expenses) in cases where appliances are more useful to some, but not all, unit owners (art. 89). Central heating is specifically

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given as an example, which implies that such appliances are considered common.

c)A water pipe embedded in the outside wall of an apartment is considered a structural element of the building itself, and thus a common element of the property. The costs of its repair would be covered by common funds (art. 90(1)).

d)Window panes are considered to be part of units, and it is thus the responsibility of the relevant unit owner to repair any damage (art. 80(1)).

Descriptive formants

Common elements of the building are to be maintained by all of the unit owners through contributions to the common fund, which reflects their sense of community living despite their relative isolation within a unit. The common fund is formed by joint contributions of the unit owners. The Law on Ownership and Other Real Rights does not contain any general guidance on the formation of the common fund, but the interim rules (which are applicable until the unit owners have decided otherwise) state that contributions should be made monthly and the annual total should amount to no less than 0.54 per cent of the unit value (art. 380). If the total amount is more than 10 per cent of the value of the property, further contribution may be withheld, as long as it does not fall below such value (art. 380(3)). In most cases, these rules are applicable in practice because the unit owners have not or could not agree on an alternative system.

Metalegal formants

Maintenance and repairs present a serious issue in many condominium communities in Croatia. 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 the fact that they are 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 assistance from the bank to finance this. Naturally, the bank will insist on taking a mortgage over units in the scheme.

Denmark

Operative rules

In Denmark the issue of allocation of payments for maintenance will usually be regulated in the by-laws. The standard by-laws, which apply in most cases, make the owners’ association responsible for every kind of repair of the outside or inside of the building with the exception of any part of the building that is physically within any individual units or apartments.

(a)As the roof is not part of the interior of an apartment, the owners’ association is responsible for its repair. The owner of the apartment in question is not responsible for repairs to the roof, unless he has acted negligently and caused the damage to the roof. If either the developer or the building contractor can be rendered liable for this defect, the owners’ association may make its claim against either or both of them. The period in which these parties can be held liable is partly regulated in contracts and partly in the Law on Limitations, which normally prescribes a period of ten years (s. 3).

(b)The answer to this question depends on where the installation is physically situated and whether it serves more than one apartment. Where the installation is situated inside an apartment, and serves only that apartment, the owner of the apartment is responsible for its maintenance and repair. However, because installations that serve more than one unit are normally situated on the common property outside the physical confines of any apartment, the owners’ association will ordinarily be responsible for the repair of these installations.

(c)This matter will also be a matter of common interest, and, as such, a problem for the owners’ association to deal with as the pipe as well as the outside wall is taken to be common property. According to the Model By-laws, the association is responsible for the central pipe lines and the owners for the pipes that branch off into the individual apartments (§ 15 par. 2)

(d)The same applies with regard to the windows. The repair of the broken window is the responsibility of the management body as windows are not categorised as part of the building inside the apartment (Model By-laws § 15 par 1). Consequently, if the owner has repaired the window, he is entitled to reimbursement of his reasonable expenses.

If the need for repair is caused by construction defects for which the developer can be rendered liable, the owners’ association may make

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a claim against the developer on behalf of itself as well as on behalf of every individual owner.224

Descriptive formants

In Denmark, the issue of allocation of payments for maintenance is usually regulated in by-laws of individual schemes. The Danish Model By-laws are not mandatory thus leaving it to owners’ associations to decide for themselves if they want to adopt rules deviating from the Model By-laws to apply for their particular scheme.

Metalegal formants

It is in the interest of all owners that all installations function at all times and that the buildings are repaired as regularly as possible because of the serious financial consequences for all owners if the building falls into decay. Therefore, matters of common interest, such as repairs and maintenance which affect the strategic parts of the building, are usually not left to the individual owners to sort out but have been made the responsibility of the owners’ association.

England

Operative rules

The commonhold association must repair and maintain the common parts, decorate them, and put them into sound condition (Model CCS par. 4.5.1). However, a local rule (par. 4.5.2.) might require unit holders to put and keep all parts of their unit in a good and substantial state of repair, decoration and condition.225 The association has no statutory right to enter any unit to carry out repairs to the common parts and other areas it is liable for but there is nothing to prevent a local rule from providing for this in any given scheme, and it is desirable that this should be done. There is no legislative right of recovery for a unit holder, such as the unit holder with the broken windows, who carries out the remedial work at their expense.

224See Blok, Ejerlejligheder, pp. 128 and 136–42; Supreme Court decisions of 31 August 1984 (Ugeskrift for Retsvaesen 1984 p. 942), 15 February 1985 (Ugeskrift for Retsvaesen 1985 p. 326) and 20 March 1986 (Ugeskrift for Retsvaesen 1986 p. 344).

225Clarke, Commonhold, pp. 26–41.

(a)Liability to cure the water leak from the roof of a terrace apartment falls on the commonhold association, because the roof is deemed to be within the common parts of the building and the condition precedent to liability, namely, physical damage, is fulfilled (Regulations reg. 9). The work will have to be carried out even if the root cause is an inherent defect caused by the developer’s faulty construction work.226 The association, having carried out the work to cure the defects, may have a right of action against the developer, as it is five and not six years from the completion of the building (Defective Premises Act 1972 s. 1). While the developer may come within the remit of the National House-Building Council’s ‘buildmark warranty’ scheme, as the defect renders the units unfit for habitation, he cannot now be required by the commonhold association to put right the defects, as five years have elapsed since the building went up, not the two years permitted for this type of action. The association could, however,

having executed the work, claim under insurance provided by the National House-Building Council.227

(b)The hot water installation would seem to be located within the common parts and not within any one unit. The association is liable

for the cost of its repair – which may involve a like-for-like replacement.228 The unfairness of the other unit holders having to pay

for work from which they will not benefit, because the annual commonhold community assessment is made on all owners, could be compensated by allotting upper floor unit holders a higher percentage of the overall assessments for repairs and maintenance as a whole than lower floor owners (Model CCS Annex 3).

(c)With regard to the leaking water pipe liability, this cannot be placed on a unit holder, as it is within the common parts of the scheme building, because the wall in which the pipe is embedded is an external and load-bearing wall. The association will have to cure the leak at the expense of all unit holders.

(d)The outside facing parts of external facing windows fall within the common parts of the scheme building (reg. 9) and the association is thus liable to put right the damage or to pay for the cost of remedial work. A window which has been broken by the wind is no more in ‘sound condition’ than a building with wind-detached tiles.

226Ravenseft Properties Ltd v Davstone (Holdings) Ltd [1980] QB 12 at 20H – 21C.

227Murdoch and Hughes, Construction Contracts (2007), p. 323.

228Creska Ltd v Hammersmith and Fulham BC [1998] 3 EGLR 35 at 38.

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Descriptive formants

The above rules are a mixture of the statutory and regulatory rules in point with some analogies derived from the common law of leases.

Metalegal formants

It has been claimed229 that the standard imposed on the commonhold association is too rigid and it was suggested at one time that commonholds should be free to set their own standards.230 If repair and maintenance standards could be varied, some developers might have been tempted to prescribe only modest maintenance standards in order to keep assessments low with a view to achieving higher initial unit sales. Some unit holders may be reluctant to accept only a modest standard of maintenance that may be difficult to alter later on. A better approach would have been to fix the present standard as a default standard, which could be increased by individual schemes.

Estonia

Operative rules

(a) – (d) The Law on Apartment Ownership provides that apartment owners are obliged to contribute to the expenses incurred in the management and maintenance of the common property in proportion to their abstract share in the common property (§ 13 (1)). The owners are not expected to carry out the repairs themselves but have the right to demand that the management body carry out regular maintenance of the common property and to create a reserve fund for such repairs and maintenance (§ 15(6)(2)and (4)).

The common property consists of the land and such parts of the building, facilities or equipment of the scheme that are not part of an apartment or in the ownership of a third person (Law on Apartment Ownership § 1 (2)). Parts of the building that are necessary for ensuring the stability of the building, or are intended for common use by all the owners, and facilities that serve the apartment ownership community as a whole are not considered part of any apartment even if they are situated within the boundaries of apartments (§ 2(2)). It follows that the roof,

229Wong, ‘Potential pitfalls in the commonhold community statement’ (2006), pp. 20–21.

230Commonhold: A Response Paper (DCA, UK, 2003) p. 105.