Экзамен зачет учебный год 2023 / European Condominium Law

the pipes of the central heating system231 and the heating system itself232 are parts of the common property. Consequently, the responsibility for maintenance and any possible liability for damage resulting from noncompliance with such obligation, is not on the apartment owner in whose apartment such objects are situated, but on all apartment owners, including those whose apartments are situated on the first floor.233 This applies also to outside windows, which in the opinion of Estonian scholars are also part of the common property.234

An owner is entitled to carry out repairs necessary for the preservation of the building without the consent of the other owners. If this is done, the owner is entitled to claim reimbursement of such expenses from the other co-owners, in proportion to their co-ownership share in the common property (Law on Property § 72 (4)).

Descriptive formants

The above answers are based on the provisions of the Law on Apartment Ownership concerning the physical division of the land and the building into individual units (apartments) and common property, and the provisions on allocating the obligations of maintenance and repair of individual units on the owners concerned, and the obligation for the maintenance and repair of the common property on all the owners in the scheme. Parts of the service installations that branch off into individual units are still considered part of the common property even though they are located inside a unit. The Law on Apartment Ownership does not work with the concept of limited common property or exclusive use areas to allocate the responsibility for maintenance and repair on the owner or owners who are serviced by a particular facility, for instance, a lift and the hot water installation mentioned in the Case.

Metalegal formants

The building as a whole can function only if all its parts are properly taken care of. Thus, it is in the interest of all the apartment owners

231Decision of the Civil Chamber of the Supreme Court of 11. May 2005 in matter 3-2-1-38-05, RT III 2005, 18, 187.

232Decision of the Civil Chamber of the Supreme Court of 13. April 2009 in matter 3-2-1-144-08, RT III 2009, 20, 148.

233Decision of the Civil Chamber of the Supreme Court of 11. May 2005 in matter 3-2-1- 38-05, RT III 2005, 18, 187.

234Junti et al., Efektiivselt majandada korterelamut (2001), p. 9.

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that they participate in the management and maintenance of the common property. This is vital to ensure the preservation and maintenance of the building, to avoid putting the health of residents or visitors at risk and to reduce the need for any support from the State in the form of the provision of social housing. This can be better secured if all the owners contribute their dues to the scheme. The management of the common property, inter alia, includes the establishment of a sufficient fund for repairs, which helps to reduce the risk of lack of funds.

France

Operative rules

Owners are not allowed to carry out any repairs when the damage in question affects the common parts of the building. Such repairs must be paid for by the management body (syndicat), consisting of all the owners in the scheme, and carried out by the manager (syndic) acting in its name. If the developer or building contractor can be held liable in tort, the management body (syndicat) can of course institute an action against the developer or the building contractor and their insurance company for compensation for the damage caused. Insurance is compulsory in these cases.

(a)Under the Law on Apartment Ownership, roof terraces are common parts of the building (art 3). The French CC provides that both the building contractor and the seller of units in a condominium (developer) are, for a period of ten years, liable for any damage caused by defects in the structural walls, roofs and foundations (gros oeuvre) of a condominium (CC art. 1792 ff.). Water-tightness of the roof, even if it is a terrace roof, is fully protected by the legal guarantee against defects in the structural components of the building. In the present scenario, the management body must institute an action against the appropriate person for the repair of the defect and damages caused by the defect. If the claim has prescribed, the management body would have to carry out and pay for the repairs because it concerns part of the common property.

(b)If a hot water installation is only made use of by one unit in the condominium, its owner must bear the cost of any repairs. In this particular case, the hot water installation services every unit located in the top floor and the necessary repairs must be carried out by the management body (syndicat), because the hot water installation forms part of the common property. The cost will be borne by the

management body (syndicat), unless a timely claim is brought in court against either the developer or the builder, who are liable for this kind of damage for a period of two years from the completion of the building (CC art. 1792-3).

(c)Water pipes are in common use, and the cost for their repair must be borne by the management body (syndicat). The fact that this water pipe is embedded in an outside wall allows the management body to sue both the developer and the builder for damages, which would include the cost of repair. According to the French CC they are liable for any defect in facilities that form an indivisible and integral part of the walls, roofs or foundations (gros oeuvre) on the same basis as their liability for defects in the structural parts of the building. The limitation period for this action is also ten years from the completion of the building (CC art. 1792-2).

(d)In this case, the owner has to pay for the repairs of the broken

window. Outside windows are usually considered to be part of a private unit,235 even if there is no specific provision for this in French law. The

owner concerned must pay for any repairs needed and cannot claim the cost from the management body.

Descriptive formants

The solutions discussed are generally accepted by the courts and jurisprudence alike. The main problem is to distinguish clearly between physical parts of the building that form part of an apartment and those that form part of the common property, but in the given situations no particular difficulties arise on this point.

(b) Even though the management body (syndicat) must bear the cost of repairs to the hot water installation, this does not meant that every coowner will have to contribute to the cost. When only some, and not all, the co-owners benefit from a special facility, they alone must share the related expenses between themselves.236 It is quite common for owners to refuse to pay charges related to common facilities, arguing that a particular facility is of no use to their unit. Ordinarily the courts dismiss such arguments, unless the co-owner can prove that it is genuinely impossible for him to benefit at all from the particular facility.237

235CA Paris, 27 Sept. 1995: Loyers et copro., 1996 p. 36.

236Cass. Civ. 3e`me, 6 July, 1988: no. 87-12734.

237See for instance, with regard to an elevator: Cass. Civ.3e`me, 5 June 1970 no. 69-10929; 20 March 1991 no. 89-17336; 21 February 2001 no. 99-14485.

floor. Therefore, it is the responsibility of the manager to repair these parts of the common property; accordingly all owners must bear the cost of the repairs in proportion to their co-ownership quota if no alternative agreement exists (Law on Apartment Ownership § 16 par. 2).

If the owner concerned has repaired the broken window himself, he can claim the cost of the repair from the manager if the repair was a matter of urgency and the manager could not be contacted in time. If no such state of urgency existed, 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.238

The developer of the scheme is responsible for the repairs in question only if the damage originated in his own faulty construction work. The limitation period for this kind of claim is five years from acceptance of the building by the owners (CC § 634a par. 2).

Descriptive formants

(a)The agreement to enter into a condominium regime may contain specific provisions regarding the distribution of maintenance costs. In the event that the agreement lacks such rules, the 2007 amendment of the Law on Apartment Ownership provides that the owners may decide by majority decision to allocate management and operating costs (Betriebskosten) in a different manner to the current quota share allocation. Any such new allocation must be appropriately selected (ordnungsgema¨ß), for example, according to consumption (§ 16 par 3).

(b)The German Law on Apartment Ownership contains no explicit

provisions regarding who (association of owners or community of owners) is ultimately liable for repairs carried out on the common

property. Therefore, this question is disputed among legal scholars and is not yet resolved.239

(c) The manner of dealing with claims arising out of defective construction against developers is one of the most controversial topics in German apartment ownership law. The source of the controversy lies in the fact that the law provides no specific regulation on how to deal with these claims. Claims are based on the purchase contracts and thus on the original rights of individual owners. The extent to which the

238See KG ZMR 2005, 402.

239See Ha¨ ublein, ‘Drittwirkung’ der Verwalterpflichten – Das Rechtsverha¨ ltnis zwischen Woh-nungseigentu¨ mern und WEG-Verwalter nach Anerkennung der Rechtfa¨ higkeit der Gemeinschaft’ (2008), p. 410; Elzer et al., Wohnungseigentum (2010), § 3 no. 91 ff.

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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 the owners. According to a sensible, but nevertheless disputed, opinion of the German Federal Court, the owners’ association also has the right, by way of a majority resolution, to pursue any individual claims as a common matter (relying on Law on Apartment Ownership § 10 par. 6).240

Metalegal formants

In practice, the allocation of maintenance costs is often a cause of discontent within the scheme, especially if the original allocation formula in the constitutive agreement proves to be unfair. Owners often deem the distribution of the costs to be unjust if the scheme consists of several different buildings. In the past, if the developer or the notary failed to make provision derogating from the Law on Apartment Ownership § 16 par. 2, then the costs were shared by all of the owners in accordance with their quotas. In contrast, owners often want to be responsible only for the building in which their unit is located. Therefore, in 2007, the German legislator gave unit owners the opportunity to adopt appropriate resolutions by majority vote. Prior to this amendment, unfair provisions in the constitutive agreement could generally not be changed unless all owners acted unanimously.

Greece

It is important to determine which parts of the building form part of an apartment and which parts form part of the common property or common facilities. The cost of maintenance and repair of the former category is charged exclusively to the owners of the apartments,241 while, the cost of the latter category is borne by all the owners

240See – pars pro toto – BGH NJW 2010, 933 and dissenting Baer, ‘Gemeinschaftsbezogenheit von Ma¨ngelrechten beim Erwerb vom Bautra¨ ger’ (2006), p. 113.

241Athens Court of Appeals 6314/1988 EDP 1991, 8; Athens Court of Appeals 8516/1986 EDP 1986, 192.

collectively as co-owners of the common property and facilities (Law on Ownership of Storeys arts. 5 (b) and (c), 6 par. 2, 7 par. 2 and CC art. 794 dealing with the obligations of co-owners).242

The Law on Ownership of Storeys provides that there is a ‘common burden’ of maintenance and repair of the parts of the condominium, which falls under the obligatory co-ownership of scheme owners (art 5 (c)). All co-owners are therefore under an obligation to contribute to the maintenance and repair,243 alterations and refurbishment

of, and attachments to, the common property (Law of 1929 arts. 5 (a) and 3 par. 2).244

Despite neither the Law on Ownership of Storeys nor the Greek CC referring to such a criterion, it is accepted in practice that the repair or maintenance of the common property must be necessary before the cost expended can be deemed a ‘common burden’. This is determined by the facts of the case, the principle of good faith and local customs. More particularly the cost of repair of the common property, which is of particular relevance to the given scenario, include the repair of defects in or damage to the common property caused by the passage of time, normal use of the object, ordinary wear and tear or even for damage caused by one of the owners or a third party. According to caselaw, all the owners are obliged to contribute to these expenses, irrespective of the cause of the defect or damage.245 There is a minority view that if damage is the fault of one of the co-owners, the cost of repairs should be borne by him alone. However, the prevailing view is that even in such a situation, all the owners are liable for the costs of repair with a right of recourse against the negligent co-owner who caused the damage.

(a) The outside roof of the building is part of the common property and the cost of the repair of the leak, is a ‘common expense’246 that is borne by all the owners collectively. The CC provides that the building contractor will incur no liability for defects in the building after the

242Spyridakis, Condominium, p. 289; Konstantopoulos, Floor Ownership, p. 260.

243Areios Pagos 23/2000 NoV 49, 604; Athens Court of Appeals 5736/1996 EDP 1998, 122; Athens Court of Appeals 1313/2007 EllDik 2007, 928.

244Spyridakis, Condominium, p. 290; Athens Court of Appeals 2121/86 EDP 1986.246; Athens Court of Appeals 7090/1986 EDP 1987.29; Athens Court of Appeals 2212/1989 EDP 1992.22; Athens Court of Appeals 6078/1990 EDP 1993.8.

245Athens Court of First Instance 6516/1990 EDP 1991.41.

246See Athens Court of Appeals 2438/1994 EDP, 1994, 224; Athens Court of Appeals EDP 12, 35.

cannot claim a contribution from the other co-owners in the condominium,248 because outside windows are considered to be part of the apartment and not part of the common property.249

Descriptive formants

The responsibility for the maintenance and repair of an apartment and the common property is clearly set out in the Law on Ownership of Storeys and the provisions of the CC dealing with the obligations of co-owners.

Metalegal formants

It could be noted that CC arts 692 and 693 hold the building contractor liable for defects that could not be discovered by means of a proper survey at the moment of delivery, even though the work on the building has been approved by the developer. This places a heavy burden on judges who have to decide the matter on mainly technical data. It is further difficult to ascertain the circumstances in which a developer should be held liable for structural defects in the building or in common facilities years after the unit in the scheme had been transferred to individual owners. These problems should be clarified by the legislator.

Ireland

Operative rules

(a)The flat roof of the terrace apartment forms part of the common areas (Multi-Unit Developments Act 2011 s. 1(1)). The OMC would ordinarily, as freeholder, be liable under covenant to the lessees to keep it in good repair and condition. As soon as a leak arises, the OMC would need to put in hand emergency measures and then execute repairs. If they need access across the flat below to carry out the work they can rely on a statutory right (s. 13). The OMC’s claim that the damage is not their liability, but that of the developer, perhaps owing to an inherent fault,

would seem groundless, because liability to cure such defects falls on the party liable to repair and maintain the item, whatever its cause.250

(b)With regard to the defective hot water installation serving only top floor units, it is still part of the common areas (s. 1(1) under ‘common

250 Cf Ravenseft Properties Ltd v Davstone (Holdings) Ltd [1980] QB 12.

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areas’ para (g)), as it does not just serve one unit, so the OMC will be liable to maintain it. It must thus replace the defective parts with suitable modern ones, but would only be liable to purchase a brandnew installation if the existing one could not be saved. The OMC would not be entitled to replace the existing installation with an inferior model but it would not be able to charge unit holders for a suitable replacement model if a like for like replacement could be found.251

(c)A water pipe embedded in the outside wall of the property would fall within the liability of the OMC to maintain such pipes (s. 1(1)(f)), at least up to the point where the pipe enters the unit. Any section of the pipe within the unit, must be maintained by the unit holder (s. 1(1) (f)) with a right of entry and repair in the OMC (s. 13) if he defaults, given that the pipe also appears to serve other units.

(d)If an outside window is broken by a strong wind, then only if the leases of the unit holder exclude such areas from the unit lease would the OMC be liable to undertake remedial works. If they refuse to do so

the unit holder, on carrying out the work and paying for the cost, might be entitled to set off that sum against future service charges.252 However,

they cannot make a direct claim for the sum in question from the OMC.

Descriptive formants

The above is based on the common law and the Multi-Unit Developments Act 2011.

Metalegal formants

In a long lease of an apartment unit the liability for repairs will ordinarily be divided between the OMC as freeholder and unit long lessees, so that the liability for structural and exterior work to the common parts of the scheme building will then fall on the OMC and for interior repairs within units on unit holders. OMCs will need to receive funds for the purpose from service charges paid by unit holders. Hence, the 2011 Act contains rules as to the levying and payment of service charges and as to the provision of sinking funds for non-recurrent items of expenditure (ss. 18 – 19).

251Cf Creska Ltd v Hammersmith and Fulham London Borough Council [1998] 1 EGLR 35.

252Wylie, Law of Landlord and Tenant (1998), pp. 279–80, although the leases may prohibit set-off as by stating that the service charges are to be paid to the OMC free of all deductions.