Экзамен зачет учебный год 2023 / European Condominium Law

keeping certain specific animals in an apartment may be considered impermissible for several reasons, for example, because such keeping causes a nuisance,311 or exceeds the normal use or socio-economic purpose of residential units.312 In some jurisdictions keeping certain pets may be considered annoying, unhealthy, dangerous or harmful to community life,313 may contravene a covenant in the lease (Ireland), a real burden in the constitutive title (Scotland) or fall foul of local municipal regulations (Estonia).314 By-laws often qualify the right to keep animals by requiring the written consent of the management board, which may not be withheld unreasonably.315

In view of the above, most jurisdictions would allow the keeping of a guide dog by a blind person for compassionate reasons, and in England because a prohibition would appear to breach the Disability Discrimination Act. The keeping of hamsters would also be countenanced unless they are kept in such great numbers that they can be considered a nuisance, because of their offensive noises or smells (Ireland). The keeping of one or two Scottish terriers would also generally be acceptable on the condition that they are not kept for breeding purposes and do not create a nuisance by incessant barking. The keeping of chickens, on the other hand, would not be tolerated in any jurisdiction because chickens are not regular domestic pets,316 are likely to cause a nuisance through noise and smells and may fall foul of local municipal regulations.317 At the end of the day, it is clear that whether or not pets are permitted generally comes down to a question of reasonableness.

Most statutes will not permit Ellen to enclose her balcony in order to create a new bedroom. The reasons advanced are that such an act

animals annulled within one month after the resolution was adopted. The Belgian courts tested this prohibition in relation to art. 8 of the European Convention on Human Rights. The outcome was that such a limitation on the use of private units is legitimate in the perspective of the right to tranquil surroundings.

311Croatian, Norwegian, Scottish and South African reports. In Croatia, uncontrolled animal keeping might be a ground for expulsion from the condominium if the court finds that such activities make life intolerable for other unit owners

312Austrian, Estonian, Polish and Portuguese reports.

313Catalan and Spanish reports.

314In Greece, local sanitary regulations allow the keeping of only two pets per apartment.

315For example, in England and South Africa.

316For example, in Catalonia, Greece, Portugal and Sweden.

317Croatian report. Local Greek sanitary regulations allow the keeping of only two pets per apartment.

236 c a s e s t u d i e s

involves the alteration of the common property,318 impairs the harmonious outside appearance or structural integrity of the building,319 changes the purpose of the balcony,320 or contravenes local planning legislation or municipal building regulations.321 In England, Ireland and France alike, the management body can institute court proceedings demanding the removal of the wall and claim compensation for damage to the common property. Some jurisdictions allow such enclosure with the written consent of the management board322 but more commonly majority consent is required.323 In fact, in Catalonia, a majority of four-fifths must agree to a resolution of the general meeting. Slovenia adopts a slightly more relaxed view, requiring the approval of owners holding more than 50 per cent of the total number of shares in the condominium. Such approval must be supplemented by the authorisation of the local municipality and in some jurisdictions also by the amendment of the condominium plan to reflect the change.324

Although Frank acquires an undivided co-ownership share in the common property according to his share value or quota (save in the case of England and Ireland where this concept is unknown), he will not be allowed to measure out a specific portion of the rear garden to plant vegetables. He is allowed only reasonable use of the common property and cannot appropriate any part thereof for his own exclusive use, as he is thereby interfering with the free use of the common property by others.325 Frank can only acquire such a right if an exclusive use area had been allocated to him in terms of the condominium plan or by-laws,326 in an agreement on use of the garden concluded between all the owners in Poland or under a lease concluded with the association in Sweden.

In a similar vein, Frank may not allow his sons to play football in the corridors. This would amount to abnormal and unintended use or

318Catalan, Estonian and Irish reports.

319Belgian, Danish, Estonian, German, Norwegian, Polish, Croatian, Portuguese,

325English, Estonian, French, German, Italian, Dutch, Polish, Croatian, Portuguese and Spanish reports. France and Spain label such activity as an ‘abuse of right’ and the Slovenian report indicates that abstract shares in the common property cannot be materialised.

326Belgian, Catalan, French, Norwegian and South African reports.

abuse and is likely to interfere with the other owners’ free use of the corridors.327 It is also possible that this behaviour could be considered a nuisance. The English report suggests that the management association should request Frank to resist engaging his sons in an intrinsically noisy pastime.

In Anusha’s case, most jurisdictions regard the erection of a satellite dish on the roof of the building as a unilateral alteration of the common areas, with the exception of Poland and Norway where it is suggested such activity could fall within the normal utilisation of the common property. The general consensus is that it is impermissible because it might interfere with the reception of signals from a common satellite dish. In England and Ireland it amounts to an actionable trespass, which could be restrained by a mandatory court injunction to remove the dish and an action for compensation for any damage caused. If regulated in the by-laws, the installation requires the written consent of the management board;328 the condominium community (Poland); a four-fifths majority (Catalonia); a special majority of more than 50 per cent of all of the owners in the scheme (Slovenia); a simple majority (France and the Netherlands) or the approval of one-third of the owners,329 together with an endorsement of the type, size and manner of installation330 as well as compliance with applicable building regulations.331 In France, a request may be refused only on serious and justifiable grounds, and in Poland the resolution could be challenged within six weeks after such refusal. Although denied in Catalonia, a prohibition on the installation of a special satellite dish to receive programmes from Spain could presumably be subject to a legal challenge on the ground that it infringes a person’s right of free access to information.332 The Swedish report observes that approval of the association might not be required for cooperatives consisting of separate houses; the Dutch report reckons that nothing could prevent Anusha from installing the dish on her own balcony and the Polish report advises that the installation of central and separate satellite dishes should be carefully planned according to the needs of the various groups in the condominium to avoid the roof

327Austrian and German reports.

328For example, in Denmark, England and South Africa

329In Spain, the owners who voted against are not obliged to contribute to the cost of the installation and maintenance of the dish until they start using the dish.

238 c a s e s t u d i e s

being cluttered with satellite dishes, which would impede the efficient clearing of snow during the winter period. In Austria, Anusha could approach the court on the ground that an existing common satellite dish does not sufficiently serve her needs and that the erection of the satellite dish would not significantly compromise the appearance of the building. In terms of special Italian legislation to promote the development and distribution of new technology for radio-diffusion via satellite, the installation of new devices, such as Anusha’s satellite dish, is regarded as a necessary innovation to improve the use of the common property and a lesser majority resolution is needed.

In respect of Herman’s actions, some Latin American condominium statutes forbid owners from renting out their apartments to persons with notoriously bad habits on the ground that this would jeopardise the harmony and tranquility of the condominium.333 Could this analogy be used to legitimise a provision in the by-laws of a scheme against letting apartments to persons with a drinking problem? Most reporters object on the ground that it restrains Herman’s unfettered power of disposal334 and infringes the prospective tenant’s constitutional right to dignity.335 Other reporters point out that a drinking problem is a disease rather than a behavioural flaw. Most, however, agree that the tenant, once accepted, is bound by the by-laws and rules of the scheme and that the management body can force Herman to terminate the lease if the tenant seriously misbehaves or causes a nuisance.336 In Austria, Poland, Croatia, Scotland and Sweden, failure by Herman to cancel the lease might actually lead to Herman himself being expelled from the scheme in extreme cases.

Ian will not be allowed to excavate a cellar beneath his ground floor apartment in order to store his bottles of wine. This is because the ground underneath the apartment is part of the common property, which may not be used exclusively by any apartment owner.337 Furthermore, such work will impair the stability of the building and the subjacent support necessary for the higher apartments.338 In Denmark and England, Ian’s behaviour amounts to a trespass that can be restrained by injunction and in Sweden such activity may even

336Danish, Catalan and German reports. In Ireland, such behaviour may lead to forfeiture of the lease and in Scotland to an anti-social behaviour order against the

tenant, which may in turn affect the landlord.

lead to the suspension of Ian’s membership of the cooperative. Some more lenient jurisdictions identify this as a case of an extension of an apartment, which requires an 80 (Catalonia) or 75 per cent resolution (England and South Africa), building permission from the local authority and an adaptation of the condominium plan to reflect the physical size of the enlarged apartment and the adjusted share value (participation quota) allocated to the apartment concerned.339 Certain jurisdictions allow the owners of top floor apartments to reserve the right to extend their apartments by the addition of another floor. A similar reservation to extend apartments downwards however is apparently encountered only in Spain in favour of the developer and not in favour of ground floor apartments.

Descriptive formants

Descriptive formants include the general provisions of the European Civil Codes as represented in the project as well as the general principles of the English, Irish, Scottish and South African law; in addition, the special Civil Code provisions (Catalan and Italian Codes for example) and special statutes and Acts on condominiums and leases; and the regulations under the English and South African Acts. The more fine-graded details concerning the use and enjoyment of apartments and the common parts of condominiums may, however, only be discovered by a perusal of the model or self-adopted by-laws and house rules, customary real burdens (Scotland) and lease covenants (Ireland), in addition to analysis of the applicable case law. Restrictions in the constitutive deeds themselves are generally considered to be valid unless they violate the general rules on public policy and good faith (Germany).340

Metalegal formants

With regard to the powers of use and enjoyment of individual apartments, the reports attempt to strike a balance between conferring wide powers of ownership and exclusive possession on unit holders on the one hand, and the need to restrain these powers in the interest of the community (Croatia). Thus, in Amos’s case the power to prevent outsiders from interfering with his apartment (ius prohibendi) is restrained in the interest of the community so as to safeguard the

339Danish, Estonian, Greek, Slovenian and South African reports.

340German report.

240 c a s e s t u d i e s

physical condition and the safety of the building and common facilities, and to ensure that the conduct rules within the scheme are obeyed. Similarly, an apartment may only be used in accordance with its intended or normal purpose and certain activities that aggravate neighbours can be restrained by court action. It is interesting to note that some jurisdictions consider that keeping a small number of pets in an apartment falls within the scope of ‘normal’ use and is in line with the residential character of such a scheme. It is also noteworthy that a number of jurisdictions, in fact, permit residents to hang washing on the balcony, as a result of ingrained local habits.

With regard to the use of the common property, there seems to be a tendency to depart from the principle that any unilateral act by an owner on the common property can be restrained by a court injunction or needs at least a majority resolution to legitimise the activity. The prime example here is Anusha’s satellite dish, which the Norwegian report considers to represent normal utilisation of the common areas. It is suggested that the consent of the management board should in principle be sufficient to legitimise smaller infractions of the common property such as the fixing of notices or nameplates on the outside walls and the demarcation of a part of the common garden for exclusive use as a kitchen garden. The relevant consent could be given subject to conditions that regulate such activities in an orderly way.

It has been noted that fine-grained regulation of the use and enjoyment of apartments and the common parts is to be found in the bylaws, house rules, covenants and real conditions of a condominium rather than anywhere else. The question as to whether the legislature should provide a framework of model by-laws and/or house rules or whether, on the other hand, it should be left to the community of owners to agree on the by-laws that should govern their particular scheme, is still unresolved. The preferred answer is that each scheme should, at least initially, be governed by a model set of by-laws containing the basic rules for preserving order and harmony in the scheme, but that the owners should be free to amend these rules by special resolution to reflect the particular characteristics of their condominium scheme. This should also apply to Ireland and Scotland because the mechanisms of lease covenants and real burdens are too outdated to cater for the modern needs of a condominium or residential leasehold regime.

The Croatian reporters observe that for a relatively long period of time, even during the socialist era, there was a generally apathetic

242 c a s e s t u d i e s

If other apartment owners are being disturbed by certain conduct of a particular apartment owner, the legitimacy of that conduct must be assessed by considering whether or not that conduct qualifies as a customary use in the given place. This applies for issues such as the keeping of pets (Doris), hanging laundry outside (the daughter of Benny) and playing football in the entrance area (the sons of Frank). Uses which do not qualify as customary, such as the keeping of chickens in an urban area, can be interdicted through court action (CC §§ 364 and 523).342 However, one should always bear in mind that the by-laws of a particular scheme may contain express provisions on the kinds of behaviour that are permissible within the scheme.343

The change of use of a residential apartment to partly professional use like a medical practice (the wife of Benny) or even for the operation of a brothel (the daughter of Benny) would require the consent of all the other unit owners (§ 16 par. 2).344 Alternatively, it is possible to apply for a court order allowing a change of the intended use, provided that the change will not cause substantial detriment to the other owners (§ 52 par. 1 no. 2). If operating a business in an apartment is permissible under any of the principles mentioned above, the owner in question will also be entitled to install a nameplate on the outside wall of the building.

Physical alterations that affect the outer shell of the building or the common property require the unanimous consent of all the sectional owners of the scheme (§ 16 par. 2).345 Without such consent, enclosing a balcony with a brick wall346 (Ellen), using the common garden areas347 for planting vegetables (Frank) or excavating a cellar348 for the storage of bottles of wine (Ian) would not be permissible. All of these unauthorised alterations can be prevented through an interdict (CC § 523).349 Again, an owner can seek relief from the court provided that the activity will not cause substantial detriment to the other owners (§ 52 par. 1 no. 2).

Anusha can overcome a lack of consent from the other owners to the erection of a satellite dish by a court application in appropriate circumstances. However, the availability of this option is dependent on

244 c a s e s t u d i e s

Belgium

Operative rules

The powers that owners have with regard to their private units and the common property, and the restrictions on those powers, is influenced by the division of the building into private units and common parts.

Each owner has exclusive ownership of his apartment. This is subject to the standard provisions on ownership and encapsulates the right of free and exclusive use and enjoyment (CC art. 544). Apartment ownership is nonetheless subject to two principal constraints. First, the description of the rights and obligations of each co-owner in the bylaws may limit the use to which a unit may be put; and second, the law of nuisance operates to prohibit activities that would be intolerable for neighbours.352

An owner is liable when the exercise of his ownership right causes excessive nuisance that violates the balance between the different ownership rights.353 The Belgian doctrine of nuisance finds stricter application in apartment buildings because of the close proximity of owners and there is therefore an increased duty on owners to avoid nuisance.354 Non-compliance with the restrictions on the exercise of the ownership right in a condominium is sanctioned in the same way as any other violation of the limitations on ownership in general.355 Violation can give rise to damages or even to an interdict against a certain use of a private unit, with corresponding fines for every violation.

With regard to the common parts, every owner has the right to use and enjoy the common property in accordance with its purpose and as far as compatible with the rights of the other owners (art. 577-2 § 5). If a common part has a subsidiary purpose, owners can act separately in accordance with this subsidiary purpose, so long as this does not counter the primary purpose of the common part.356 The intended use of the scheme or any part of the common property can be changed by virtue of a four-fifths majority resolution of the general meeting (art. 577-7 § 1, no. 2b)

352Snaet, ‘Rechten en plichten’, p. 70.

353Cass. 6 april 1960, Pas. 1960, I, 915; Brussel 25 juni 1965, Pas. 1966, II, 192, JT 1966, 26,

Ann. Not. 1966, 19.

354Baekeland, ‘Medehuurders en de evenwichtsleer van artikel 544 BW: het begrip