Экзамен зачет учебный год 2023 / European Condominium Law

Italy

Operative rules

Expenses pertaining to the preservation and enjoyment of the common property of the scheme must be shared between unit owners, and are apportioned according to each owner’s share value (CC art. 1123 par. 2). Logically, costs incurred in relation to maintenance of individual apartments or units must be borne by the owners individually.

Notwithstanding the above, it is also possible to claim compensation from the developer or building contractor for structural defects in the building that are not covered by purchaser protection rules (CC art. 1490 ff.).253 Developers assume responsibility towards consumers and their successors under certain provisions in the Italian Civil Code (CC art 1669) and it seems uncontroversial that a purchaser or unit owner would fall within their ambit. These provisions are supplemented by the Legislative Decree on the Protection of Purchasers of Real Estate under Construction of 2005 (art. 4), which compels the developer or building contractor to sign a ten year insurance policy on behalf of the purchaser to indemnify the purchaser against damage caused by the defects in the property mentioned in CC art. 1669.

Descriptive formants

In determining liability for repairs, an initial distinction must be drawn between the responsibilities of the management body and those of individual apartment owners. As a general rule, each unit owner must contribute to the expenses necessary for the preservation and enjoyment of the common parts of the building, for the performance of services in the common interest and for alterations and improvements. Contributions are apportioned by the share value of each unit unless otherwise agreed or provided for in the by-laws of the scheme (CC art. 1123). The Civil Code also provides that where common parts only benefit a particular group of owners, only those owners must contribute towards their maintenance (CC art. 1123 par. 2). For example, if the building has multiple staircases, courtyards, flat roofs

253The liability of the developer and that of the building contractor may coincide. The developer’s liabilty is limited to defects that are discovered within one year after transfer. In this event the contract may be cancelled and the purchaser may claim compensation for loss or reduction in price.

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or facilities intended to serve only a specific portion of the scheme, the owners who benefit from these amenities are responsible for their maintenance (CC art. 1123 par. 3). In a similar vein, where a particular area benefits different owners to varying extents, the costs are apportioned accordingly (CC art. 1123 par. 3). Thus, a top floor resident may be required to contribute more towards maintenance of a lift than a ground floor resident.

The majority of the works detailed in the given scenario involve common property, and costs are thus charged to all the unit owners collectively rather than to a single individual owner, in compliance with the procedures and criteria set forth in CC art. 1123. However, there are two potential caveats to this as detailed below.

First, if the flat roof of the terrace from where the water is leaking is 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 the above-mentioned proportional criterion (CC art. 1126). This is based on the assumption that the parts mentioned form part of the common property as defined in CC art. 1117.254

Second, turning to cases (b) and (c), in the event that the condominium by-laws (or even the sale contracts between the developer and individual purchasers) exclude these parts from the common property, the owner of the unit in question will be responsible for the costs of the necessary repairs provided that the defect is located beyond the point where common installations branch off into an apartment (CC art. 1117 par. 3).

In contrast to the other repair works, the expenses for the repair of the outside windows are charged to the individual owners and cannot be charged to all the unit owners collectively. This is subject to the developer’s insurance obligation under the CC mentioned above (art. 1669).

254CC art. 1117 refers to ducts for leading water, gas, electricity, and heating until they branch off into the different units. Recently, the Court of Cassation Section II, 23.9.2011 no. 19490 ruled that the presumption that certain parts of the scheme are common property must always be based on objective elements showing that the function of the property is to serve the interest of the community, which can only be rebutted if the structural features of the property concerned are such that it exclusively serves the use or enjoyment

of one private area only.

Art. 1669 of the CC makes a contractor liable for ten years for defects in, or collapse of, parts of the building, as long as the complaint is notified within one year after the discovery of the defect in question. Today, the prevailing views are (a) that the provision must be extensively interpreted to include the purchaser (as a successor of the seller if the latter is not the building contractor); and (b) that the serious defects specified in art. 1669 include the defects stated in the Case under consideration.255 This protection of the purchaser was recently fortified by the introduction of art. 4 of the Legislative Decree on the Protection of Purchasers of Real Estate under Construction of 2005, which requires a building contractor to enter into a ten year insurance contract on behalf of the purchaser covering the risks mentioned in CC art. 1669.256

Metalegal formants

Unfortunately, it would appear that the provision concerning the ten year insurance contract in terms of the above Decree is only sporadically complied with in practice. In theory, the purchaser is strongly protected, but in reality it is a different story. Further to the comments expressed in the response to Case 1, we note that a specific and effective sanction is lacking. The purchaser’s only redress against a developer that fails to take out the insurance policy is an action for damages; he may not sue the developer for specific performance of the insurance obligation. Furthermore, in practical terms, the cost and time needed to access Italian civil actions explain why actions

255See Stofli, ‘Appalto’ (1958), pp. 629 ff. and 658; Rubino and Iudica, ‘Dell’appalto’ (1992), pp. 432 ff.; Cass 4.11.2005 no. 21351 held that serious structural defects covered by CC art. 1669 may comprise any defect, even if only in one part of the building, but which affects its overall structure and functionality and evidently impedes the use and enjoyment of the building itself, as in the case of water and humidity seepage resulting from a defect in the sheeting of the building; see also Cass 28.4.2004 no. 8140 in Foro Italiano, Milano, Rep. 2004, par. Appalto, no. 8. Finally, Cass 10.10.2001 no. 12406 in Foro Italiano, Milano, Rep. 2001, par. Appalto, no. 63 stated that CC art 1669, destined to enforce public order, may be enforced not only in the case where the developer (seller) has personally constructed the building but also in cases where other professional persons, such as architects, building contractors and designers, have been employed in the construction

of the building.

256On the insurance policy, see Petrelli, ‘Gli acquisti di immobili da costruire’ (2005), pp. 149 ff.; Ferrucci et al., ‘La tutela dei diritti patrimoniali degli acquirenti di immobili da costruire ed istituti collegati’ (2008), pp. 187 ff.

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against developers are seldom pursued. This is a more general problem but it nonetheless illuminates the need for more effective protection of the purchaser; there is little use in the legislator providing protection from an ivory tower.

Netherlands

Operative rules

The Civil Code provides that the by-laws must contain provisions on the use, management and maintenance of the parts not intended to be used as separate units (art. 5:112). In the absence of a provision to the contrary in the deed of subdivision or in the by-laws, the association of owners is responsible for carrying out repairs to the common parts whether they are inside a wall, in the commonly used parts or in a separate unit. However, in relation to specific repairs, the by-laws may provide that the costs of maintenance and repair are to be borne by specific owners or groups of owners. For example it is unlikely that ground floor residents would be expected to contribute towards the maintenance of a lift serving the building.

(a)The roof of an apartment building is normally looked upon as common property (Model By-laws 2006 art. 17 par. 1a), and as such falls under the responsibility of the association of owners. The association must repair the leak. In specific cases the by-laws of a particular scheme may provide otherwise. In the unlikely case of where the defect causing the leak is in the finishing layer of the roof, the owner of the apartment would be responsible for the repair (Model By-laws of 2006 art. 28). Obviously, in the event that the leak is still covered by a contractual guarantee of the developer or the building contractor, the association of owners or an apartment owner may institute

court proceedings directly against the developer or the building contractor.257

(b)As a rule, the owners are jointly responsible for defects in parts of the common property and the association must undertake the repairs. In specific cases, such as in casu a defective hot water installation that serves only the units on the top floor, the by-laws of a given

257Van der Vleuten and Mertens, ‘Procesbevoegdheid van VvE’s en individuele appartementseigenaars bij gebreken in nieuwe appartementsgebouwen’ (2012), pp. 225–36.

scheme may provide that the costs of maintenance and repair fall only on those who benefit from this system.

(c)Again, as a rule, the owners are jointly responsible for the repair of water pipes and the association must undertake the repairs. However, the by-laws for example may provide that water pipes that serve only a single apartment are considered to be part of that unit (Model By-laws of 2006 art. 17) and, as a consequence, the owner is responsible for its maintenance and repair (Model By-laws of 2006 art. 28).

(d)The broken window is common property and should be repaired at the joint expense of the owners. The by-laws may, however, provide that glass damage in a separate unit must be paid by each owner separately, unless glass insurance against damage to the windows was taken out by the association, in which case the management of the association must take care of repairs (Model By-laws of 2006 art. 28 par. 6).

Descriptive formants

The above answers are based on the provisions on apartment rights, as included in the Dutch Civil Code, as well as in the Model By-laws of 2006.

Metalegal formants

The Dutch law on apartment rights has a monistic structure. The apartments owners acquire co-ownership in the land and the buildings and an exclusive right of use to those parts of the building that are designated for individual use, which is carved out of this co-ownership with regard to the land and the building. Furthermore, the apartment owners automatically become members of the association of owners. The association of owners is basically the administrative body of the entire community of co-owners. As all apartment owners co-own the whole building, they must, in principle, also take care of maintenance together. Dutch law renders the association of owners liable for the administration and execution of this duty. The by-laws may provide otherwise, most commonly for maintenance of parts that are only used by the owners of one or more separate units.

Although the principles regulating who should bear which costs seem relatively simple, the question is not easy to answer in practice. This is because various by-laws contain special provisions regulating the maintenance and repair of specific elements. An example is

Under the Law on Housing Construction of 1997, a developer is responsible for any defects in the construction such as the one in our Case for up to five years after delivery (s. 30(1)).

(b)A hot water installation that serves more than one individual unit is common property and must be maintained at the expense of all owners, unless otherwise stated in the by-laws as amended with the consent of all the owners affected by such a clause (Law on Owned Units of 1997 s. 19(2)).

(c)A water pipe embedded in the outside wall of one apartment will normally be part of the common piping system and thus it must be maintained at the cost of all the members of the scheme. If the water pipe serves one unit only (as with a bifurcation or branching off of the common piping system) it may be part of the unit in question and in that case it must be maintained by the unit owner even when it is embedded in the outside wall.

(d)Issues related to outside windows can be both complicated and controversial. Parts of any maintenance work on a window may best be performed from inside the units and thus fall within each owner’s obligations. Other parts of the work must be performed from the outside and will then typically be a common liability. Changing worn-out windows should normally be regarded as a common project, for both practical and aesthetic reasons. Incidental damage to outside windows is taken to be part of common maintenance on this basis. Any owner may perform the work himself and have his costs refunded, preferably after prior consultation with the management board.

Descriptive formants

The Act makes very brief and general provision on maintenance, which must be supplemented by factors such as practicability, reasonableness and usage. The Law on Housing Cooperatives of 2003 has more elaborate provisions, which provide some, but not comprehensive, guidance to the regulation of maintenance obligations in condominiums (ss. 5-12 and 5-17).

Metalegal formants

Maintenance issues are among the most important in the everyday life of a condominium. Several considerations are relevant for the allocation of maintenance obligations. The starting point is to ascertain which parts of the building are part of a unit intended for individual use and which are part of the common property. The distinction

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should be based on functional rather than formal criteria. Common installations (e.g. principal pipes, ducts and electricity cables) and structural components of the building must in principle be maintained by the owners jointly even if they pass through units. Further, maintenance obligations should ordinarily be borne by the persons who can best take care of the relevant parts of the scheme. The question of access to any relevant part of the scheme should be considered as well. On the other hand, the immediate utility of the measures taken is less relevant (maintenance of the roof is a common responsibility even though the owner of the top floor apartment will be the first to suffer in the case of any water leakage).

Poland

Operative rules

A developer’s statutory warranty against physical defects in buildings or units in buildings sold to a purchaser prescribes three years after the date on which the property was transferred to the purchaser (CC art. 568 § 3). Therefore, the prescription of a claim with respect to any one unit may occur at different times. Even if the defect concerns only the common parts, any purchaser may bring a claim against the developer within the above period, given that each unit owner has a co-ownership share in the common parts and is as such entitled to take any action necessary to protect the common property. The remedies available to a unit owner are as follows: first, the repair of defects; second, the exchange of a unit for one without defects; third, a reduction of the purchase price (and thus reimbursement of part of the money paid for the unit); and finally, cancellation of the contract of sale of the unit. The buyer cannot, however, cancel the contract or demand an exchange of a unit where the defects are not substantial or if the developer forthwith removes the defects in question (CC arts. 560–561). If the unit owner has incurred additional loss (as where he had to move temporarily out of the unit, or had to endure a protracted period of restorative work) he may also claim for financial loss suffered.

It is also possible to bring a general claim for damages resulting from breach of contract against the developer (CC art. 471). The prescription period for such claims is generally ten years although it is only three years if the contract was concluded by a unit purchaser in the course of

his business (as with a unit bought as an office for a company or a self-employed entrepreneur). In order to rely on this mechanism, the contract would have to include not only an obligation to transfer ownership, but also to erect a building, as with the contract defined by the Law on Unit Ownership (art. 9). If the developer has granted a guarantee for specific parts of the building, such as balconies, windows or outer doors, the period allowed by law for possible claims depends on the term of the guarantee.

(a)The lack of a definition of the boundaries of a unit in the Polish Law on Unit Ownership has encouraged Polish academic writers to suggest that a unit should not be defined solely with regard to walls but instead by reference to the walls, floors and ceilings that enclose a unit. They have concluded that a unit does not include the outer walls, ceilings or floors that separate an apartment from other units or from the common areas. Academic commentators have further suggested that all components of service installations, including wires and ducts that serve more than one unit, should be common property even though they are situated within a unit.259

In the case under discussion, the leak most probably arose on the outer part of the roof, and the owner’s contention will be upheld as a result. Leaks connected to faulty water ducts or attributed to structural defects in the building, even if these are on the inside of the roof, will be the responsibility of the community of owners. However, the above mentioned claims against the developer may come into play if they have not prescribed. To summarise: since the leak is normally the result of a defect in the roof, and the latter is common property, the community of owners would be responsible for curing the defect. If, on the other hand, the leak is connected with a terrace that the owner had failed to insulate properly in the process of tiling, the responsibility would be his.

(b)Even if the building was designed in such a way that separate hot water installations serve each of the floors, then they would still be treated as common property. It does not matter whether one installation serves the whole building or if the installations are somehow divided to serve batches of units, because the latter is a technical solution adopted when the building was designed and was not the

259Van der Merwe and Habdas, ‘Polish apartment ownership compared with South African sectional titles’ (2006), p. 170.

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decision of the particular unit owners. Therefore, the community of owners would be responsible for their repair and maintenance. If, however, the units did not benefit from any such installations but the latter were individually installed by one or a few unit owners acting together (which is difficult to imagine in practice), the hot water installations concerned would not be common property, but the responsibility of the owners concerned.

(c)Academics and courts alike take the view that all ducts and pipes that supply units with water, gas, electricity, heating and so on are common property, regardless of where they are located. The responsibility for their repair would therefore fall on the community of owners.260

(d)Outside windows (and doors) of a self-contained unit are treated as part of the unit itself, even though, technically speaking, they are part of the external wall. Their use is, however, intrinsically bound up with the exclusive powers of the owner over any given unit, so that the service criterion set out in the Law on Unit Ownership (art. 3 s. 2) clearly indicates that this is not a matter concerning the common property. Therefore, no repair claims against the community can be made.

Descriptive formants

Unfortunately, Polish legislation contains a variety of rules with regard to possible claims and prescriptive periods in the case of building defects. Therefore, liability for building defects is not uniform, but depends on the contents of the contracts concerned, whether they are innominate or contracts of sale, with varying results.

(a)Structural components and service installations are ordinarily, in practice, considered to be part of the common property, hence the responsibility for their repair rests on the management body. Sometimes the difficulty lies in determining the actual source and reason for the leak, namely, as to whether it is in fact caused by problems connected with structural defects or as to whether, for instance, tiling carried out by the owner is itself responsible for leaks from balconies.

(b)Central heating systems are occasionally installed by unit owners. If this is the case, the owners themselves are liable for any breakdowns and resulting losses caused to other owners. The Supreme Court has ruled that the heating installation of a building, even if its

260Doliwa, Prawo mieszkaniowe (2003), pp. 622–3; Supreme Court resolution 1997.08.28, III CZP 36/97, OSNC 98/1/4.