Экзамен зачет учебный год 2023 / European Condominium Law

When an owner or occupant violates a provision of the by-laws, the owners’ association can impose certain sanctions on the offender. If the offender fails to heed an initial warning and continues to violate the rules, the association can resort to court proceedings if necessary (art. 577-9 § 1, par. 1 C.C.). Individual owners or occupants are also entitled to raise proceedings against the offender (arts. 577-9 § 1, par 5 and 577-1 § 4). The local judge (‘vrederechter/juge de paix’) has jurisdiction to decide cases concerning the use, benefit, maintenance, preservation or management of the common parts (Judicial Code art. 591 no. 2). He has the power to make specific orders, including restoration of the status quo, a prohibition against future nuisance and punitive damages to give some teeth to any such prohibition.357

The potential recourse available to the association of co-owners to act in the specific scenarios mentioned in this Case differs from case to case.

Amos is not prohibited from locking himself in his own apartment. Neither is it against the law to put a notice on the door. An inside door giving entrance to a private unit is considered to be private.358 Hence, unless the by-laws provide otherwise, Amos enjoys the free and exclusive use of his door.

Whether Benny’s wife is allowed to practice the profession of medical doctor in an apartment building depends on the intended use of the building under planning regulations and the by-laws of the scheme. A provision in the by-laws reserving the unit solely for residential use (‘clause of civil habitation’) would render Benny’s wife’s activity impermissible.359 Such a clause is fairly commonplace in residential schemes. However, if no such clause exists Benny’s wife is free to conduct a commercial or professional activity provided the relevant licence is obtained.

It is debatable whether a by-law can provide that an owner cannot affix a nameplate on an outside wall of the apartment building to

357Timmermans, ‘Het houden van huisdieren in flatgebouwen en het grondrecht op woongenot’ (2005), p. 4.

358Timmermans, Handboek, p. 106, no. 95.

359For prohibitions on other kinds of use of a private unit, see Rogister, ‘Des clauses d’habitation bourgeoise: notion ge´ne´rique, opposabilite´ et applications a` des activite´s de massage et de consultance juridique et financie`re’ (2000), p. 381; Casman, ‘Statuten van het appartementsgebouw, wat de recente rechtspraak ons leert’ (2008), p. 48; Timmermans, ‘Mosselrestaurants, kinderdagverblijven en funeraria in flatgebouwen: bezweren of gedogen?’ (2009), pp. 3–7.

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advertise his or her business. Certain commentators have drawn inspiration from French case law to conclude that any such clause would be invalid.360

As stated above, most by-laws contain provisions demanding from the owners or occupants a certain level of propriety, the so-called provisions of ‘civil habitation’ (burgerlijke bewoning/habitation bourgeoise), which must be complied with. In the absence of such provision, the owners’ association can take action on the ground of nuisance. This is relevant when it comes to Benny’s daughter. Practising as a prostitute is immoral and is likely to constitute a nuisance for Benny’s neighbours. As such they could seek action to prevent her carrying on the activity. Furthermore, those organising prostitution face criminal prosecution.361

Whether one may hang laundry on a balcony depends on the ‘standing’ of the building.362 Most frequently, the by-laws contain provisions that offer guidance on the specific activities that may be carried out within (or in this case outside) a unit.

It is quite common in practice for by-laws to prohibit the keeping of pets. Such provision is valid and enforceable363 and impacts on Doris’s situation. The case law that tested the validity of such a clause in relation to article 8 of the European Convention on Human Rights concluded that such limitation on the use of a private unit can be justified by a person’s right to tranquil surroundings. It is also possible that the general meeting adopt a resolution that pets or other animals must be removed in view of the serenity of the apartment building.364 If such a clause does exist, the association can take legal action against Doris on the ground of violation of that clause. Otherwise, the association can only prevent Doris keeping a pet if a resolution was passed to prohibit the keeping of pets, or if the pet created an actionable nuisance.

360Timmermans, Handboek, p. 202, no. 235. Contra Trib. Antwerp 24 October 1989,

Revue juge de paix 1990, 370.

361Timmermans, ‘Barre tijden voor flatprostituees’ (1998), pp. 7–11.

362Snaet, ‘Rechten en plichten’, p. 78.

363Aeby et al., La proprie´te´, p. 247, no. 240; Timmermans, ‘Huisdieren’, pp. 1–4.

364Trib. Furnes 30 April 2009, Tijdschrift Gentse Rechtspraak 2009, 228; Trib. Antwerp 14 Aug. 2008, Revue juges de paix 2009, 458. For a general overview in Belgian law on the conflict between fundamental rights and private law, see Van Leuven, Contracten en mensenrechten (2009), p. 581.

With regard to Ellen, enclosing the outside balcony to enlarge her apartment changes the fac¸ade and outside appearance of the building.365 It thus surpasses solely individual interests, which implies that the provisions in the by-laws about the constructional consistence of the building must be respected. Furthermore, the structural stability has to be preserved by all owners even when they make changes to their private units.366 That is the reason why a balcony is often regarded as a common part, despite the fact that it is burdened with an exclusive right of use in favour of the owner whose apartment is adjacent to the balcony.367 In this way, the concern of consistency of the building is reconciled with the exclusive use of the balcony in favour of one particular private unit.

The garden areas situated on common land are, unsurprisingly, common parts. The by-laws frequently provide that the owners of ground floor apartments have the exclusive right of use of the rear gardens adjoining their apartments.368 If an exclusive use right has been allocated to Frank, he may use that part of the garden to plant vegetables for domestic consumption. However, if that is not the case, each owner has a proportionate share in every part of the garden. Unit owners cannot in the absence of a by-law or agreement to the effect unilaterally reserve part of the common parts for their own exclusive use.

Anusha can, in principle, use the roof, which is considered a common part, to install a satellite dish, although by-laws often prohibit this on aesthetic grounds.369 The installation of satellite dishes is a highly controversial issue because of the possible health risks that are said to accompany their presence.370 The ambivalent case law on this point suggests, on the one hand, that satellite dishes should be censured because of health issues, while other case law stresses the ambiguity of these health issues.

365Wahl, ‘La re´partition entre les coproprie´taires des frais de re´fection des balconsterrasses’ (2007), p. 2.

366Timmermans, Handboek, pp. 240–2.

367Aeby et al., La proprie´te´ des appartements, pp. 171–2 and 177; Casman, ‘Statuten’,

pp. 45–6; Thoen, ‘De syndicus’ p. 41, no. 33; cf. Timmermans, Handboek no. 81

370See on this debate: Baudoncq, ‘Van gsm-manie naar mobilofobie?’ (2003), pp. 513–18; Baudoncq and Stevens, ‘De verwijdering van GSM-antennes op grond van artikel 544 B.W. of de groeipijnen van een stralende rechtspraak’ (2003), pp. 33–6; Wahl, ‘Coproprie´te´. Les antennes GSM’ (2002), pp. 1–2.

Catalonia

Operative rules

Amos is merely exercising his right to make use of his private unit as he pleases. Objectively, his conduct does not affect the normal coexistence of other owners in the condominium (CCC arts. 553-36 and 553-40). However, if repairs are needed for the maintenance and preservation of common elements, and it is proved that there is no other reasonable way to achieve this except by disproportionately expensive or burdensome means, the community can enter the unit. When strictly necessary to execute agreements reached with the management board or to improve access to the unit, this is effected by means of a properly constituted servitude of access from the common property. In such cases the community of owners will be liable for any damage caused to the owner of the unit (CCC art. 553-39). In the event that the servitude burdens the unit unreasonably, a court has held that its constitution will not be allowed in a case that concerns the installation of an elevator that would severely affect the light and the ventilation of the unit.374

By putting up the notice, Amos is not altering the homogeneous appearance of the doors in the same corridor and it does not affect co-existence of the owners in the condominium. (CCC arts. 553-11 and 553-12).

Benny can change the intended use of his unit at his pleasure as long as it is not forbidden by the by-laws of the scheme (CC art 553-10.2 (c)). The consent of the community of owners is not needed unless the exercise of her profession entails the alteration of the structure of the building.375 Thus, his wife is allowed to practice her profession as a medical doctor in the unit. Benny, as owner of the unit, may be required to pay a larger percentage of the condominium expenses to compensate for the more frequent use of common elements, such as a lift or common staircase, by his wife’s patients (CC art. 553-45.4).

The use by Benny’s daughter of three rooms as a brothel is not consistent with normal coexistence of neighbours in a condominium and is thus a nuisance. The president of the condominium on his own initiative (or if requested by at least one-quarter of the owners) can

374SAP Barcelona 29-6-2010 (JUR 2011\87208).

375SAP Tarragona 13–7–2006 (JUR\2007\266462) and SAP Tarragona 30–1–2008 (JUR 2008 \146622).

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under the Constitution art. 33 and CC art. 111-7 because chickens are not pets and keeping them contravenes ordinary residential customs and would cause an excessive degree of disturbance. A reported case decided that the keeping of horses in a unit did not accord with ordinary living conditions in a condominium unit.379

By-laws containing an absolute prohibition on the keeping of any kind of animals regardless of their behaviour or a unit owner’s needs (e.g. guide dogs for blind people) will be considered invalid because it restricts an owner’s freedom of enjoyment of his unit subject to limitations connected with the harmonious co-existence of neighbours in a condominium (Spanish Constitution art. 33 and CC art. 553-37 and 553-40).380 The disturbance should be actual (not merely threatening) and not more excessive than neighbours could be expected to tolerate.381 Thus, it was decided that the keeping of a donkey in the unit affected the co-existence in the condominium negatively on account of the donkey’s smell and excrement.382

Ellen cannot enclose her balcony without the consent of four-fifths of the owners in number and share value as this is an alteration of common elements (CC art. 553-25.3).383

Unless it is provided in the by-laws of the condominium that part of the garden is reserved for the exclusive use of Frank (CCC art. 553-11.2 (c)) or it has been agreed unanimously by all owners (CCC articles 553-43.1 and 553-42.2), Frank cannot measure out portions of the rear garden for his sole use. He would then be abusing his rights with regard to the garden, which is part of the common property (CCC article 111-7), because he is obstructing the normal use of the whole garden by all the other owners (CC article 553-42.1).384 Allowing his sons to play football in the corridors also amounts to an abuse on Frank’s part of the common elements and is thus not allowed.

As the erection of the satellite dish by Anusha affects the external appearance of the building, the approval of four-fifths of the owners in number and value is required. Moreover, if her dish interferes with the signals of a common antenna, it would constitute an abuse of the common area, which is not allowed (CC art. 553-25.3). There are so

381See STS 11-10-1978 (RJ 1978\3071); SST 14-11-1984 (RJ 1984\5555).

382SAP Zaragoza 18-2-1992 (AC 1992\192).

383SAP Tarragona 20-5-2009 (JUR 2009\392632).

384SAP Barcelona 28-10-2008 (JUR 2009\78390).

far no court decisions such as the Parabolantenne case in Germany.385 In fact, the Spanish Supreme Court held that the refusal of a condominium manager386 to allow a unit owner to install his own parabolic antenna387 in a common area does not concern the unit owner’s constitutional right to information, but is rather an application of the legislative provisions on condominiums, which do not allow an owner to alter common elements unilaterally.388

Herman has absolute freedom to dispose of his unit by selling or renting it to any person he pleases (CC art 553-37). A prohibition against letting his apartment to a person with a drinking problem would harm the prospective tenant’s constitutional right to dignity (Spanish Constitution, art. 24) as with the case of the lesbian purchaser above.

As he is altering the structure of the building (parts of his ground floor are at the same time the foundation of the building), Ian cannot do this particular work without the consent of four-fifths of owners in number and share value (CC art. 553-25.3). Moreover, he is endangering the stability of the whole structure of the building, which is absolutely forbidden.

Descriptive formants

The answers to various situations in this Case were based almost exclusively on the applicable provisions of the Catalan Civil Code, the Spanish Constitution and relevant court cases.

Metalegal formants

Catalonian owners on the whole regard their condominium units as their castles. The millions of condominium residents in Spain view their units as private spaces where they can realise their fundamental rights of freedom (Spanish Constitution art. 16)389 and privacy (Spanish Constitution art. 18; ECHR 16-11-2004) and unrestrictedly develop their personality (Spanish Constitution art. 10.1).390 In general, unit owners can use and dispose of their units as they please (for instance selling

3859-2-1994, BVerfGE 90, 27.

386The fact that there was no resolution of the management body would not have changed the result.

387A parabolic antenna uses a parabolic reflector, a curved surface with the crosssectional shape of a parabola, to direct the radio waves.

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and letting them as in Herman’s case). This notion that ownership of a unit does not differ fundamentally from ownership of a house on a separate parcel of land is probably one of the reasons why condominiums are so popular in Catalonia. Limitations are only placed on uses and activities that can negatively affect the harmonious co-existence in a condominium and thus exceed the normal rules of tolerance expected from neighbours. Limitations should be interpreted and applied restrictively,391 and the exclusiveness of use of an individual unit may only be overridden by the establishment of a servitude of access if there is real need for the condominium community to have access to a particular unit and only on condition that it does not burden the unit excessively.

In view of the foregoing, Amos’ behaviour does not affect the coexistence in any way and his desire of keeping everybody out can only be bypassed if there is a real need on the part of the community to have access to Amos’ apartment to take care of community interests. Amos’ case clearly illustrates how his right to privacy may be curtailed to a limited extent in favour of community interests.392 By contrast, it is highly unlikely that Anusha’s interests will be protected by the Spanish Constitutional or Supreme Court on the basis of her constitutional rights. To solve her conflict with the condominium community, she would have to resort to the condominium provisions of the CC and the by-laws of her particular scheme.

Catalan legislation clarified Benny’s right to allow his wife to change the intended use of his apartment by providing that an owner may use his unit to further his own interests, as long as the use of the unit does not affect the structure of the building and the common parts or the tranquil co-existence in the condominium community. This in some sense reinforces the idea that a unit is an owner’s castle. The same line of reasoning can be used to assess the activities of Benny’s daughter. Her activities are not allowed if they exceed the bounds of propriety, if common elements are altered or used without proper consent of the community or if the harmonious external appearance of the building is substantially impaired.

The keeping of animals is not allowed if the animals unreasonably impair the quality of life of the other residents because of smells and excrement, are dangerous, such as pet crocodiles or pythons, or

391STS 10-10-2007 (RJ 2007, 8420).

392See again ECHR 16-11-2004; STS 7-11-1997 (RJ 1997/8348); STS 27-11-2000 (RJ 2000\9525).