Экзамен зачет учебный год 2023 / European Condominium Law

Metalegal formants

(a)–(d) The reason why the median line of outside walls, floors and ceilings has been accepted as the boundaries of an apartment is probably to provide as much substance as possible to the cubic space surrounded by walls, floors and ceilings for owners to exercise their ownership entitlements. The other principle as applicable to (b) is the so-called ‘service’ or ‘utility’ test, which provides that if the benefit of a particular service is restricted to some, but not all, owners, only those owners who benefit should be responsible for the upkeep of the facility. This differs from the case where the structural components of a building or a central heating system or central water pipes serve the community as a whole. In such a case the whole community (management body) rather than the individual owners should be responsible for the repairs. With regard to windows, it has been argued that the repair of outside windows (which cannot open) should be the responsibility of the management body, because broken windows could disturb the harmonious outside appearance of the building. Other commentators contend that if windows can be opened from the inside, the owners should be responsible for their repair because of the control they exercise over such windows.

Spain

Operative rules

(a)As the leak has originated in the roof outside the apartment and on the common property, the community of owners (junta de propietarios) would be responsible for these repairs. Under the Law on Horizontal Property the community of owners is responsible for the maintenance of the building and the common facilities in order to assure the basic conditions of use (art. 10.1). If the leak can be attributed to a structural defect in the building, the Law on Buildings of 1999 obliges the natural or legal persons involved in the building process to compensate for damage caused by structural defects in the building, or certain other defects, that impairs the habitability of the building, detected within three years of completion of the building (art. 17).

(b)If the hot water installations are located on the ceiling of the apartments and form part of the common property, the community of owners is responsible for the repair. CC art. 396 treats hot water installations and hot water pipes as common property. However, the Spanish Supreme Court has admitted the possibility of exonerating

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certain owners from the obligation of paying expenses relating to installations they are unable to use.277

(c)In this case, the answer depends on the nature of the wall in which the leaking water pipe is located. If the by-laws do not contain provisions in point, the wall will be considered to be a common element

(CC art. 396 refers to the walls in general), and the owners’ community will then have to repair it.278

(d)The difficulty in this case is whether windows (and doors) should be considered part of the outside walls of an apartment. If these items are not part of the outside walls the responsibility for repairs falls on the relevant apartment owner. If they are part of the outside walls (and CC art 396 treats the external covering and closing mechanisms of the windows as common elements), the owners’ community will have to pay for the repairs in question.

A 1999 amendment of the Law on Horizontal Property provides that all owners must contribute in proportion to their quota, to a so-called reserve fund (fondo de reserva) (art. 9.1.f). The Law provides that if an owner fails to maintain his unit in a state of good repair he or she will have to compensate the community of owners or other owners for damages caused by his or her neglect (art. 9.1.b). However, if an owner carries out repairs for which he is not in fact liable, he may claim reimbursement from the owners’ community.

Descriptive formants

(a)Authors generally agree with the idea that structural components and service installations should always be considered as part of the common property, and that the responsibility for their repair should thus rest on the owners’ community.

(b)The explanation for this exception to the relevant provisions lies in the idea that those persons who benefit from a service installation should also be responsible for its repair and maintenance.

(c)The solution here depends on the nature of the walls. If they are considered as part of the common property, the answer is that the owners’ community must pay for the cost of the work. Interestingly, some authors consider that provisions on common walls (medianerı´a), a

277Decisions of the Spanish High Court of 2 March 1989 (RJ 1989\1745) and

30 December 1993 (RJ 1993\9907): Exoneration of expenses will be enforceable if included in the by-laws.

278Dı´az Martı´nez, ‘Comment art. 3’ (2010), p. 46.

special kind of community regulated by the CC art 571 to 579 and treated as a special kind of servitude, are applicable to those walls separating one unit from the other,279 while other commentators regard them as common elements, with no further specification.280

(d) CC art. 396 contains a non-exhaustive list of common elements, which also includes the external materials of, and the mechanisms for, closing windows. The justification is probably that they affect the external appearance of the building.

Metalegal formants

(a)–(d) The most important amendment of the Spanish Law on Horizontal Property and CC art. 396 took place in 1999. This amendment specifies that geysers, central heating installations and air conditioning apparatus and some other equipment, wherever located, form part of the common elements. Thus, it is clear that these kinds of installation must be repaired by the owners’ community. In any case, as the list of common elements provided by CC art. 396 is not a closed one, Courts will decide on a case by case basis whether a particular installation is part of the common property, primarily taking into account whether the provided service or benefit serves the whole community, part of it or just an individual (as in case b). The external walls and the walls dividing the different units are mainly considered common elements (art. 396 CC refers to ‘walls’ without further specification in the context of the common elements), while the walls that divide the rooms of the units are part of the owner’s property, unless they are structural walls (muros de carga). Windows located in the fac¸ade of the building are considered common property, probably because they impact on the external appearance of the whole building.

The 2013 amendment of the Law on Horizontal Property relaxes the requirements for carrying out various kinds of work in the scheme in order to support the hard-hit Spanish building industry. At present all works listed in art. 10 may be carried out if required by the Public Administration or the owners without any need for approval by the general meeting.

279Lacruz Berdejo et al., Elementos de Derecho civil III (2004), p. 412. This means that the owners of the wall that divides two units will have to repair it (CC art. 575.1). If the wall is partly the property of an owner and partly that of the community both will have to contribute to repairs.

280Dı´az Martı´nez, ‘Comment art. 3’, p. 46.

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Sweden

Operative rules

According to Swedish law, the holder of a share in a real estate cooperative scheme (bostadsra¨tt) is responsible for maintenance of his or her own apartment (Law on Real Estate Cooperatives Ch. 7 s. 12). This means that the shareholder must maintain, repair and renovate the floors, walls, ceilings and movables in the kitchen and bathroom in the apartment allocated to him or her. It is, however, possible for a particular real estate cooperative association to regulate this differently. Thus, for instance, the association may decide to upgrade all the bathrooms in the houses and apartments of the scheme. Large projects such as this must be approved by a majority of the members. On the other hand, the shareholders of the real estate cooperative scheme are not responsible for maintenance of wires and pipes for sanitary, heating, gas, electricity and water purposes and ventilation shafts, as long as the association has supplied these and they serve more than one apartment (Ch. 7 s. 12). Moreover, the shareholder in a real estate cooperative scheme is only responsible for restoration made necessary on account of fires or leakages caused by the negligence of the holder, any member of his or her family, or a guest of the holder (Ch. 7 s. 12).

In appropriate circumstances there may also be a claim against the developer or building contractor for structural defects in the building.

(a)In the event that water has leaked through the top roof of the building, the Law on Real Estate Cooperatives would hold the association responsible for the leak because it originates from the roof, the maintenance of which is the responsibility of the association (Ch. 7 s. 4). If the water has caused damage to the inside of an apartment, the member is, in terms of the Law on Real Estate Cooperatives, responsible for effecting the required repairs to the inside of the apartment. The holder will, however, be compensated by the association for the costs incurred in the process (Ch. 7 s. 4).

(b)The association is responsible for the hot water installation provided that it was supplied by them originally and it serves more than one apartment.

(c)According to the law in point, a water pipe that is embedded in the outside wall is the responsibility of the association. This is true as long as the pipe has been installed by the real estate cooperative association. Once the pipes branch off into the apartment, it is the responsibility of

the apartment owner. If it is the shareholder who has installed the pipes, for example, when reconstructing the apartment, he or she will be responsible.

(d) Since it is the outside of the window that has broken, the real estate cooperative association is responsible for its repair. The general principle applicable here is that the association is responsible for everything on the outside of the building.

If a member of a real estate cooperative carries out and then pays for maintenance for which the association is actually responsible, then according to the Law on Real Estate Cooperatives he or she may legitimately claim compensation from the association (Ch.7 s. 4).

Descriptive formants

The provisions on the division of the responsibility for repairs between the shareholder and the association has been criticised as being too vague. The efforts to simplify the above mentioned provisions met with limited success.

Metalegal formants

The difficulty of simplifying these rules should not be exaggerated. In the final analysis, the costs of repairs are often carried by insurance. It is worth mentioning that developers and building contractors are obliged to conclude insurance contracts against the risk of structural defects in the building (Law on Insurance for Construction Defects of 1993).

building with structurally interdependent units, together forming an intensified community. Consequently, certain specific restrictions on the use and enjoyment of units are provided for in European Civil Codes,281 condominium282 and other statutes, the constitutive titles of the scheme (as real conditions in Scotland), by-laws283 and/or house or local rules of particular schemes.284 By contrast the common property is, in principle, owned in undivided co-ownership shares by all the unit owners with the exception of Ireland and Sweden where the common property is owned by the OMC (once the developer has transferred it) and association respectively. In all cases, each co-owner, leaseholder or member may only make reasonable use of the common property without impeding similar use of it by other owners in the scheme.285

By locking himself inside his apartment and putting up a notice warning outsiders to keep out, Amos is trying to invoke his entitlement to privacy inherent in ownership, namely, the right to prevent another person from interfering with the object of his ownership (ius prohibendi).286 However, most condominium statutes, in the interests of safety, allow representatives of the management body to enter an apartment287 for the purpose of maintenance and repairs to structural components and common facilities inside the apartment, or to ensure that the rules of the scheme are observed.288

281The Polish CC limits the ownership of a unit by the applicable law, the principles of community living and the socio-economic purpose of the ownership of a unit.

282German report.

283The Greek report notes that by-laws must not conflict with legislative provisions or the moral values of the community.

284English CCS. The Italian reporter warns that activities of unit owners inside their apartments may be deemed to be detrimental to individual freedom or the protection of the residence of the other owners as guaranteed by the Italian Constitution.

285The Norwegian report states that owners must use and enjoy both units and the common parts according to their intended and normal use in conformity with modern trends and circumstances and must avoid causing unnecessary or unreasonable damage or nuisance.

286Austrian and Croatian report.

287In England only if the CCS contains a general right of access; in Catalonia if there is a servitude of access. In Slovenia entrance, if refused, may be gained by swift non-contentious court proceedings.

288Legislation further permits public health and epidemiological authorities to enter buildings in appropriate circumstances. In Sweden, if neglect by a resident to keep his or her unit clean and in a good condition creates a risk of extensive damage, representatives of the cooperative may enter to restore the condition of the unit.

the structure of the building (in Catalonia), if it is restricted to a small number of patients (in Poland), or if the purpose of the unit is changed from residential to office space (Croatia). Some jurisdictions allow such a practice with the consent of the relevant management body (in Ireland and Sweden), while in Spain unanimous approval is required. Slovenia takes a slightly more relaxed view and allows a profession being exercised with the approval of 75 per cent of all the owners and the consent of the neighbouring owners. In South Africa, the written consent of all the owners is necessary. In the interests of fairness the Irish and South African legislation provide that an owner is not allowed to withhold his consent on unreasonable grounds. The Catalan report presents the interesting perspective that if the use is permitted, Benny may be required to pay higher assessments on account of more frequent use of the common property by his wife’s patients.

Benny will not be allowed to unilaterally fix his wife’s nameplate to the outside wall because it affects the outside appearance of the wall contrary to any local use rules (in England), and in conflict with the intended purpose or use of outside walls (in Portugal). Furthermore, Benny should have used advertisement boards at the entrance to the condominium if such were provided. The impression conveyed by the majority of the national reports is that Benny will only be allowed to fix his wife’s nameplate to the outside walls with the written consent of all, or at least the majority of, owners (in Catalonia, Croatia, Estonia and Spain) or the management board (in Denmark, Greece, France and South Africa), or alternatively if it is permitted in the bylaws of the scheme. The by-laws could also specify the size, nature and manner of the nameplate (in France and Slovenia). Only the Norwegian report considers the fixing of the notice as a normal use of outside walls, and even then this is qualified by the fact that such use must be coordinated and controlled by the management body.

Most condominium statutes forbid the use of three rooms of the apartment as a brothel by Benny’s daughter for a variety of reasons. In several jurisdictions prostitution is illicit,296 while in Ireland, carrying on prostitution in an apartment contravenes any lease covenant

296In Denmark, Croatia, Estonia, France, Germany, Italy and England, Benny can be criminally prosecuted for procurement. Catalan law does not criminalise prostitution, but requires official licences for conducting massages and other acts of eroticism.

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expressly prohibiting the illegal or immoral use of a unit. Such use exceeds the normal use of a residential apartment,297 is annoying, unhealthy, dangerous and harmful to community life,298 causes a nuisance and impairs the reputation of the building.299 There is also a good chance that the by-laws will forbid use as a brothel or use for immoral purposes.300 In Ireland and Sweden continual defiance of a court order prohibiting prostitution can eventually lead to forfeiture of the lease or membership of the cooperative. Similarly, in Catalonia, Benny and his family could be deprived of the use of the unit for up to two years. In Ireland, court proceedings for an injunction must, if the court so orders or at the request of either party, be preceded by the required dispute resolution deliberations, which take the form of a mediation conference.

The hanging of washing on the balcony is frequently forbidden in local municipal regulations301 and in the by-laws or house rules of a scheme.302 Reasons for such a prohibition include that it impairs the harmonious outside appearance of the building,303 that the reputation of upper middle class schemes may suffer304 or that it goes against the intended use of balconies.305 In some jurisdictions such activity is however permissible if it is allowed by the by-laws of a scheme306 or if a simple majority approves such activity.307 By contrast, the hanging of washing on balconies is an accepted practice in Germany, Poland, Croatia and Slovenia and even in Norway provided that the feelings of neighbours are adequately considered. Interestingly, the practice is widely accepted in the colder countries – perhaps because this is rarely done there anyway, unlike in Spain and other southern countries where it is warm outside for the majority of the year!

In Doris’s case, an absolute prohibition on the keeping of pets in the by-laws of a scheme is almost universally considered invalid due to the fact that it impinges on the ordinary or customary enjoyment308 or full use309 (Norwegian report) of residential premises.310 However,

309Norwegian report.

310Danish and French reports. In the Netherlands, an owner may institute judicial proceeding to have a resolution approving an absolute prohibition on the keeping of