Экзамен зачет учебный год 2023 / European Condominium Law

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a change of the layout of the pipes in the wall would require the consent of the community. Paradoxically, it happens in practice that some, if not all, owners object on the ground that they view the pipes as their own property. However, as soon as one pipe leaks it suddenly becomes uncertain who owns it, and some communities argue that if a leak is beyond the individual meter it is the responsibility of the owner. Perhaps this is unsurprising given the nature of human beings, and so legislation should clarify the position regarding the designation of these pipes.

As outside windows are regarded as part of a unit, owners sometimes replace them or change the colour of the frame or even the shape of the window itself. They argue that because the window is part of the apartment and they pay for its replacement, they can do what they like. This mentality is, however, slowly changing and an increasing number of condominium communities provide in their house rules that the owner may put in new windows without seeking any consent, but their shape and colour must correspond with the existing ones, as this aspect forms a part of the outer wall and influences the aesthetic appearance of a building.

Portugal

Operative rules

Decree-Law on Certain Aspects of the Sale of Consumer Goods of 2003 stipulates that in a business to consumer (B2C) transaction, the seller is responsible for any defects in the building that manifest themselves during the five-year period after transfer of the unit (art. 5). Notice must be given by the owner within one year after knowledge of the defect and compensation may be sought within three years after due notice (art. 5-A(3)).

CC art. 1225, which applies to business to business [B2B] transactions, provides that the seller (developer) is liable for damages arising during a five-year period following any construction, repairs or modifications to the building he has carried out himself. Liability also exists if the building is totally or partially ruined, or has defects impinging either on the soil or the construction of the building. Notice must be given by the owner within one year after knowledge of the defect and compensation may be claimed within one year after notice has been given (CC art 1225(2)).

The developer is directly liable to the unit owners who suffer damages on account of the defect. He must have approved the work of the building contractor (CC art1218), who remains liable for hidden defects.

The above rules apply to defects affecting units in a condominium. Similarly, with regard to the common property, the manager may bring a claim against the developer when authorised by the general meeting (CC art. 1436 and CCProc. 6(c)).262 In interpreting the five-year period mentioned in CC art 1225, the Supreme Court of Justice decided that ‘transfer’ of common property only takes place at the first general meeting, where a manager must be appointed. As the developer, as the owners of all the units, is always the

first manager of the building, he must convene the meeting of his own motion.263

Since five years have already passed, the answer to this question depends on whether the defects originate from the individual apartments or from the common property. If they originate inside the apartment, the owner is responsible for the repairs; if they originate on the common property, the management body would be responsible.

(a)Since five years have already passed, and the leak most probably arose on the outside part of the ceiling, the owner’s contention will be upheld. The manager, following a decision of an owners’ general meeting, is then required to carry out the repairs (CC arts. 1430 and 1436(h)). If the relevant five years have not yet passed, the leak could be attributed to a structural defect in the building and the Decree-Law of 2003 would apply (art 5). This provision imposes a duty on the developer to rectify structural defects resulting from non-compliance with technical requirements during the five-year period running from the date of transfer of the unit.

(b)Usually, central water installations supply the whole building with water from pipes branching off to the individual apartments. Water installations are thus taken to be common property (CC art. 1421(1)(d))

and so any repairs should be carried out by the manager, following a resolution of the general meeting (CC arts. 1430 and 1436(h)).264 If a hot

water installation, which serves only the units on the top floor, has

262Passinhas, Assembleia, p. 322; Decision of the Court of Appeal of Lisbon, of 4 October 2007, in www.dgsi.pt.

263Decision of the Supreme Court of Justice of 15 November 2001, in www.dgsi.pt.

264Decision of the Supreme Court of Justice of 1 June 2010, in www.dgsi.pt.

designated or reserved for exclusive use by some owners only (CC art 1424(2) and (3)).266

With regard to windows, it must be noted that outside windows, which cannot open, are equivalent to external walls. They are the responsibility of the management body, because broken windows could disturb the harmonious outside appearance of the building. Ordinary windows and balconies are considered to be part of the unit. Their owners should indeed be responsible for effecting their repair because of the control they exercise over such windows.

Scotland

Operative rules

Subject to any variation by the title deeds in TMS tenements or the rules in DMS tenements, the default statutory position for the allocation of such maintenance responsibilities is as follows.

(a)The roof is ‘scheme property’; therefore it will be maintained and any defect repaired by the scheme/management body.267 Any cost is scheme cost shared by all flats.268

(b)The hot water installation serving the units on the top floor serves more than one unit. Therefore it is owned by more than one unit as pertinent. Consequently this is also “scheme property” by common

ownership. However, it is scheme property by reason of common ownership only (as opposed to being the structural part). The cost of

any repair will be allocated according to the share of ownership of the installation.269 Units not on the top floor do not have to pay for its

repair. Nor will they have a vote in deciding whether the repair should go ahead.270

(c) External walls are within ‘scheme property’ as structural parts. The position will be identical to that of the roof. Water pipes or other installations embedded in the wall would be regarded as pertinents to the flats they actually serve, subject to express variation in the titles or founding documents of the DMS. The result would be identical to that of (b) above. Pertinents are owned by those flats that use them. They are scheme property. But subject to express variation, only those flats with common ownership would pay for their maintenance.

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(d) A window serving one flat only is not ‘scheme property’ even if it is located within the external walls of the building.271 Furthermore, as it shelters the building from the weather, the owner of the flat will have to keep it repaired to comply with the obligation to maintain ‘support and shelter’ to the building.272 Other owners can enforce against such responsibility if the repair is not carried out. However, the cost is only borne by the owner of the flat, as the window is not scheme property.

Descriptive formants

The concept of ‘scheme property’ is one of the key ideas in the Scottish reform. The Scottish Parliament cannot legislate for anything that may violate the European Convention on Human Rights. Therefore, if the Tenements (Scotland) Act 2004 attempted to change the ownership structure of any existing tenement building, the whole statute could potentially become illegal.

Scheme property is the workaround in response to such danger, by severing the connection between ownership and maintenance responsibility. The roof may be owned by the top storey units in many existing tenements. The statute could not change this without risking a violation of human rights. Therefore, the statute only changed the responsibility for maintenance. Although the roof is still only ‘owned’ by the top flats, it is ‘maintained’ as scheme property by all flats in the building.

This concept is not only new to Scots law, but potentially to apartment ownership law in the comparative context. There may be uncertainty regarding the extended implications of such a ‘no ownership, responsibility only’ model.273 However, as things stand, the law is reasonably clear and practically convenient.

Metalegal formants

The restriction on the legislative power of the Scottish Parliament is possibly a decisive factor for the Scots law reform in choosing the current approach. The clear and commendable commitment was that something needed to be done immediately to improve the situations in all Scottish tenements, rather than to refer matters to Westminster with the possibilities of further delays. With hindsight this seems to be

273See the discussion surrounding occupier’s liabilities in Xu, ‘Managing and Maintaining Flatted Buildings’ (2010), p. 236.

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apartments, the by-laws may designate it as ‘limited common property’, owned only by the owners of the top floor apartments. In such a case, only the apartment owners concerned will have to bear the cost of repair. If the installation is not expressly defined as a limited common part, the cost must be borne by all the apartment owners.

(c)It is not entirely clear whether the leak originates inside the apartment or is the result of a defect in the common parts. In the former case, the apartment owner must bear the cost of repair and is liable for any damage to the apartment below (Law on Housing art. 16(1)). If the leak originates or is caused by a defect in the common parts, the manager is under an obligation to have the defect in question repaired. The cost must be borne by all the apartment owners in proportion to their co-ownership shares (Property Code art. 115) or in conformity with some other criteria as laid down by the community by-laws.

(d)The glass of the outside windows is common property and should be repaired at the expense of all apartment owners. The owner who in fact pays for the repairs in question may request the manager for reimbursement of the share of the overall cost that is due from the other apartment owners.

Descriptive formants

The above answers are based on the provisions of the Slovenian Property Code and the Law on Housing. As the Law on Housing contains a precise definition of parts of the building that form part of the common property, there are few disputes as to the question of what physical parts of the scheme form part of an individual unit and what form part of the common property. It would be possible to provide for more specific rules regarding the sharing of the costs in the community by-laws, but this does not tend to occur in practice.

Metalegal formants

Slovenian condominium laws adopt a dualistic structure that recognises ownership in the individual units in the condominium and divides the common property in the scheme into co-ownership shares co-owned by all the apartment owners in the scheme. From this perspective it is logical that the apartment owners are solely responsible for the repair of their individual units and collectively for the maintenance and repair of the common property. It is, however, important to stress that property situated outside the boundaries of an apartment, including the outside walls of an apartment, are in their entirety common property.

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on whether the window is situated inside or outside the median line of the outside wall. This would appear to be a fairly arbitrary way to apportion liability. If windows are considered continuations of the outside walls, the repair of the inside part of the window falls to the apartment owner, and that of the outside part to the management body, which means that each would pay half of the cost of the repair. The latter approach has now been adopted by an amendment of the Sectional Titles Act in 2010 (s 5(5)(a)).

The model rules provide that if an owner fails to maintain his unit in a state of good repair, the executive board or the managing agent may give the owner written notice to carry out repairs. If the owner thereafter persists in such failure for a period of thirty days, the management body is entitled to undertake the necessary repairs, and to recover the reasonable cost for such intervention from the owner (Annexure 8 rule 70). Neither the Act nor the model rules (by-laws) entitle the owner to do the same in the case of repairs that are the responsibility of the management body.

Descriptive formants

(a)Some commentators contend that the location of a defect inside or outside of the median line should not always determine responsibility for repairs, but that structural components and service installations should always be considered part of the common property and that the responsibility for their repair should thus rest with the management body.

(b)The explanation for this exception to the applicable provisions lies in the idea that persons who reap the benefits of a service installation should also be responsible for its repairs.

(c)This solution follows the strict rule that only land and parts of a building that do not form part of a section (apartment) can be part of the common property, and that the boundaries of an apartment are always the median line of the outside walls, floors and ceilings. Some commentators contend that structural components and service installations form such an integral part of the services provided in a sectional title building that they should always be part of the common property and should be the responsibility of the community of owners (represented by the management body), rather than the responsibility of the individual owners.

(d)The fact that the legislature was silent on the position of windows and floors has given rise to unnecessary speculation of what the position ought to be. This led to the amendment of the Act to bring clarity to an uncertain state of affairs.