Экзамен зачет учебный год 2023 / European Condominium Law
.pdfm y a pa r t m e n t i s m y c a s t l e : l e a v e m e a l o n e ! |
255 |
contravene local regulations, for instance, in the case of certain breeds of dogs (Catalan Decree on Measures relating to Dogs deemed potentially Dangerous of 2002).
Alterations of the common elements, or inside private units that negatively affect neighbouring owners or the stability (as in Ian’s case) and soundness of the building or its outside appearance need the consent of the condominium community and cannot be undertaken unilaterally.
Apart from the prohibition of dangerous, unhealthy and immoral activities or uses of a unit, there is also a general prohibition on activities that amount to an abuse of the right of private ownership, for example, to use the unit or the common property in such a manner that it unreasonably interferes with the use of owners of their own units and the common property. Extracting smoke from a private unit into a common patio and thus preventing other co-owners to enjoy the open air, or regularly causing a disturbing noise to emanate from a unit that affects the quiet enjoyment of neighbouring units would be considered abuses of the law.393 Frank’s allowing his children to play football in the corridors would unreasonably interfere with the use and enjoyment of the common property by other owners and would thus also amount to an abuse of the law.
Croatia
Operative rules
Amos is free to lock himself inside his unit. The notice on the door barring everyone from entering the unit is a valid exercise of his right to exclude others from access to his unit (Law on Ownership and Other Real Rights art. 79). This right is, however, qualified by the rights of others to access the unit in cases where such access is needed for the maintenance of the common parts of the building. Amos may claim reasonable compensation for any harm caused by such access. If Amos refuses to allow entry in these circumstances, the manager may petition the court to instruct Amos to do so. In cases of emergency, where there is imminent danger, the manager may use force to enter the apartment (art. 31(1) and (2)).
393 See SAP Barcelona 19-7-2010.
256 c a s e s t u d i e s
Benny is allowed to let his wife practice medicine in the unit, unless there are rental restrictions registered against the property. A rental agreement for office space would define her rights and duties. The placement of a plaque on the outside wall of the building would require the consent of all the unit owners. Professional regulation may require changing the purpose of the unit from residential to office space. This is generally permitted, subject to certain limitations (art. 82(1)). Other unit owners may not refuse to consent to such a change if it is needed for the issuance of an administrative permit (art. 82(3)).
Benny may not allow his daughter to run a brothel in the unit, because prostitution (as well as a parent abetting his daughter in prostitution) is illegal under Croatian law (art. 322(1)) and punishable by a fine or imprisonment (Law on Misdemeanours against Public Order and Peace arts. 12 and 22). The manager would be entitled to ask the police to put a stop to Benny’s daughter’s activities, and could even initiate criminal proceedings against the parties involved. Additionally, such behaviour would constitute grounds for expulsion from the condominium by way of a forced sale of the apartment (art. 98(3) or 99(1)).
Allowing the daughter to hang washing on the balcony is within the limits of a unit owner’s powers if the balcony is a limited common element (an appurtenance) of the unit. There is therefore no problem with Benny’s daughter doing this.
Doris may keep her pets within the unit, provided this does not breach any house rules or other regulations. Uncontrolled animal keeping might be grounds for expulsion if the court finds that such activities make life intolerable for other unit owners (art. 98(3)(3)). Note that chickens are regarded as farm animals, and their presence in cities is often restricted by local regulations.
Ellen’s behaviour is legally objectionable if pursued without the consent of the other unit owners because structural changes that modify the external appearance of the building (which would include the alteration of the balcony in the present case) require their consent (art. 82(1)(1)). Such actions may constitute grounds for expulsion (art. 98(3)(3)) if the court finds that such actions are ‘seriously detrimental to the interests’ (znatno ide na sˇtetu interesa) of other unit owners.
Frank’s use of a part of the parcel as a private garden is objectionable, even though he has measured out the area so as to correspond to
m y a pa r t m e n t i s m y c a s t l e : l e a v e m e a l o n e ! |
257 |
his ownership quota. Unless otherwise agreed upon, all unit owners are entitled to use common elements (which includes the land) jointly (art. 42). Thus, the manager may insist upon being given access to the garden, or upon modifications to or removal of the vegetable patch.
Frank’s sons playing football in the corridors might constitute grounds for expulsion from the condominium, but only if the court finds that such behaviour is making life conditions intolerable for other unit owners (art. 98(3)(3)).
Anusha’s installation of a satellite dish is probably allowed. The Law on Ownership and Other Real Rights makes an exception to the restriction on alteration to the common elements by owners themselves in the case of the installation of TV antennas in line with technological developments. A satellite dish may be erected if it is otherwise impossible to connect to the television network (art. 82(1)(2)). Anusha’s position is somewhat complicated by the fact that she now broadens her existing reception, with ‘foreign TV programmes’. The manager could try proving (with difficulty) that such a modification is unreasonable.
Herman’s tenant’s activities may be a ground for expulsion under art. 98(3)(3). The tenant’s presence could be regarded as indecent behaviour that makes life conditions intolerable for other unit owners, but only if the tenant is actually acting in an inappropriate manner. The fact that the tenant and not Herman has the drinking problem is irrelevant. The Law equates the actions of a tenant with the actions of an owner who has failed to prevent them (art. 98(4)).
Ian’s excavation of the basement is objectionable because it extends beyond the boundaries of his unit and into common property. In particular, the excavation may be dangerous as it could displace the foundations of the building (art. 82(1)(1)). The Law makes no exception for the present case, because building a wine cellar is neither common, nor serves an important interest of the unit owner (art. 82(1)(2)). Such actions may constitute grounds for expulsion if the court finds that they are seriously detrimental to the interests of other unit owners. Note that the excavation does not give Ian any right of ownership. The cellar remains common property, accessible to every unit owner (art. 41).
Descriptive formants
The cases presented are somewhat exaggerated, although they do represent some of the typical issues that cause conflict between unit
258 c a s e s t u d i e s
owners. The rationale of Croatian property law is to balance individual powers with collective interests by generally giving the unit owner the authority to do as he pleases within the unit unless such actions somehow interfere with the collective interests of the community. In actions which concern all of the owners, the presumption is that unanimous approval is required.
In many of the cases presented, there is an additional layer of public law, which must be taken into account, and which serves to protect other interests. For example, in Benny’s case, one should take care to comply with administrative rules, which prescribe mandatory physical requirements for the space that is used for practicing medicine, including the placement of a plaque on the outside wall of the building (Regulation on Minimal Standards of Space etc. of 2011 art. 11). Again, Doris must comply with local regulation on pet keeping. For example, if Doris lives in Zagreb, she must comply with the Ordinance on the Conditions and Modes of Pet Keeping etc. of 2008 and the Community Order Ordinance of 2008 (art. 138), which restricts the keeping of farm animals to certain defined areas in the city. In Ellen’s case, one ought to note that closing in a balcony might be considered to be building reconstruction, which requires a building permit according to the rules on physical planning and construction contained in the Law on Physical Planning and Building of 2007 (art. 209).
It should further be noted that the Law on Ownership and other Real Rights is reluctant to grant proprietary effect to constructions or actions on the common property unless specifically contracted for and acknowledged by registration (art. 156). Therefore, Ian’s excavation activities have no proprietary effect, despite the significant costs he may incur, and despite the fact that the overall value of the scheme might have increased due to the addition of the wine cellar. Note that it is legally possible for Frank to isolate a part of the garden as a separate element of limited common property, appurtenant to his unit (art. 67(3)). Such a change, however, must be registered with the land registry to have third party effect.
Metalegal formants
The situation in Croatia is complex with respect to the application of a multitude of public law restrictions, particularly in construction. For a relatively long period of time, even during the socialist era, the attitude towards non-compliance with such restrictions was generally
m y a pa r t m e n t i s m y c a s t l e : l e a v e m e a l o n e ! |
259 |
apathetic, making it difficult for private parties to invoke such restriction. Consequently, there were vast numbers of illegal construction or reconstruction projects, which remain unsanctioned. As a result of the consensus-structured decision-making process, unit owners will often unreasonably withhold consent, which results in unnecessary litigation and loss of property value or failure to take action against a misbehaving co-owner as a result of indifference or simply inertia. The painstaking (and expensive) process of going to court to resolve disputes also acts as a deterrent to collective action.
Denmark
Operative rules
Naturally, apartment owners are not entirely free to act as they please without any risk of being confronted with legal restrictions.
The Law on Owner Apartments authorises the owners’ association to enter the apartments of owners when needed in order to inspect and repair any apartment (§ 5 par. 2). Furthermore, the Law stipulates that the owners’ association can lay down house rules that allow access to owners’ apartments in certain specified circumstances (§ 5 par. 1)). Finally, the Law entitles the association to warn an offender and, after serious and repeated breaches of his obligations towards the association or one of its members, to exclude the offender from the condominium community (§ 8). As a result of lack of case law, it is difficult to determine in which situations this sanction would apply. One could presume that this sanction will only be invoked where there had been a serious and persistent set of breaches after repeated written warnings.
Accordingly, Amos, as the owner of the apartment, is entitled to enjoy the privacy of his apartment and to refuse any access to his apartment except where the owners’ association needs to enter the apartment for the purpose of inspection or to do necessary repairs. Though not explicitly provided for, it must be presumed that Amos must be given reasonable notice depending on the urgency of the need for inspection or repair and that the inspection and repairs must be carried out during reasonable hours of the day.
Model by-laws provide that signs may be put up on the common property only with the management board’s written consent (§ 15 par. 5).
260 c a s e s t u d i e s
Benny seems to be able to use his residential apartment for other than residential purposes. Neither the Law on Owner Apartments nor the model by-laws contain any express provisions against the commercial use of apartments. If not regulated in the adopted by-laws of a particular condominium scheme, the owners’ association cannot, in proceedings or otherwise, force Benny to prevail on his wife to cease receiving patients in the apartment. However, in some cases, a commercial use of residential apartments may contravene public regulations pertaining to the use of buildings in certain areas and, if so, the authorities may intervene. The placing of a nameplate on the outside wall of the apartment would, however, need the written consent of the management board as in Amos’ case (Model By-laws §15 par 5).
The use of the apartment as a brothel by Benny’s daughter is an infringement of Danish criminal law. Benny and his daughter both risk punishment under § 228 of the Criminal Code for procurement. If a rule against the conducting of prostitution in a scheme is inserted in the by-laws or house rules of a particular condominium scheme (Law on Owner Apartments § 5 par.1)), the owners’ association may make use of § 8 of the Law and eventually exclude Benny and his daughter from the scheme on the ground of gross and repeated breach of their obligations to the owners’ association.
In most cases it will be perfectly acceptable for owners of apartments in condominium schemes to hang out washing on their balconies. However, this may be contrary to express provisions in house rules laid down by the owners’ association (Law on Owner Apartments § 5(1)). If so, such associations might again make use of § 8 of the Law on Owner Apartments and eventually exclude Benny’s daughter if she has, despite warnings, frequently used the balcony for drying clothes. However, it does not seem likely that the serious sanction in § 8 could be invoked in such a relatively harmless violation of the house rules, as opposed to a house rule against prostitution. If a particular condominium scheme has inserted an express ban on hanging out washing on balconies in its by-laws, it may be possible to request a court interdict against Benny to stop this activity (Law on Administration of Justice Ch. 57 on prohibitory interdicts).
Neither the Law on Owner Apartments nor the Model By-laws regulate the keeping of pets in an apartment. However, the owners’ association of a particular condominium scheme may adopt special by-laws or house rules to regulate the keeping of pets. But even if there is an absolute prohibition on the keeping of pets, Doris cannot be forced to
m y a pa r t m e n t i s m y c a s t l e : l e a v e m e a l o n e ! |
261 |
give up her guide dog, which she needs on account of her bad eyesight, or the hamsters, which do not ipso facto cause a nuisance.394 The chickens, on the other hand, may cause a nuisance to neighbours because of potential or actual noises and smells and, if so, perhaps the aforementioned § 8 sanction may be enforced so as to compel Doris to give up the chickens or, ultimately, to exclude her from the scheme. This reasoning is based on analogies drawn from the legislative provisions and case law concerning pets in rented apartments.395
The model by-laws stipulate that owners may not alter the exterior of the building without the written consent of the management board (§ 15 par 5). Therefore, Ellen will not be allowed to enclose her balcony. Furthermore, the alteration of the appearance of the building will presumably also violate the provisions of the Danish Law on Buildings (§ 16). Such alterations may only be undertaken after the required building plans have been approved by the local authority concerned, which will only occur if the Board has not given her permission to enclose the balcony. Usually, the question of the harmonious appearance of the buildings is not regulated in the by-laws, but owners’ associations are free to insert specific rules on this aspect that conform to general building regulations.
The Danish Law on Owner Apartments provides that the common property of the scheme belongs to all the owners in co-ownership shares in proportion to their quotas (§ 2 par. 2). In the absence of provisions in the Law or the Model By-laws the use of the common property must be regulated in the by-laws or the house rules of a particular scheme, which would normally contain provisions against exclusive use of parts of the common property or the abnormal use thereof by a member. This would cover the cases where Frank demarcates part of the garden for his exclusive use or allows his son to play football in the corridors. It is, however, doubtful whether violation of these rules could ultimately lead to Frank being forced to move out of his unit under § 8 of the Law on Owner Apartments.
Under the Model By-laws Anusha will only be allowed to put up her antenna on the roof of the building with the written consent of the board (§ 15 par. 5). It is not certain whether the same rule applies to satellite dishes but in principle this would be permitted unless the
394Cf. Blok, Ejerlejligheder, p. 361.
395Supreme Court decision in Ugeskrift for Retsvæsen 1975, p. 174, and Eastern High Court decision in Ugeskrift for Retsvæsen 1974, p. 841.
262 c a s e s t u d i e s
local house rules of a scheme provide otherwise.396 Without any case law in point, one would assume that as things stand today the courts would adopt the analogy of the Consolidated Law on Leases of 2010 to solve the problem. This Law allows owners to put up satellite dishes on the roofs of buildings in accordance with instructions given by the owners’ association.397 Placing a dish on any outside part of the building may in any case constitute an infringement of applicable building regulations or the Consolidated Law on Building Preservation of 2011.
Herman is allowed to rent his apartment to any person, even a person with a drinking problem as in this case. He must, however, in terms of the Model By-laws provide the chairperson of the board with a copy of the lease on commencement of the lease (§ 16). The tenant is obliged to obey the by-laws and house rules of the particular scheme. If not, the association can force Hermann to terminate the lease. The association cannot exclude the tenant from the scheme in terms of the § 8 sanction because it solely authorises an exclusion of an owner from the condominium. Danish law on this aspect is inadequate.
As for Ian´s wine cellar, the alteration concerns the common property (the foundations of the building) even if the wine cellar is situated below his apartment. Consequently, the construction of the wine cellar would need the written consent of the board (Model By-laws § 15 par. 5) and most likely also the approval of the building authorities. If the wine cellar is allowed to be completed, the condominium plan of the scheme must be adjusted to indicate the extension of Ian’s unit by the addition of the wine cellar.
Descriptive formants
The above answers are based on a few inadequate provisions in the Law on Owner Apartments and the Model By-laws promulgated in the Ministerial Order of 2005. The majority of the issues will be solved by the special by-laws or house rules of a particular condominium scheme or an analogous application of the rules under the Law on Landlord and Tenant.
396Cf. Blok, Ejerlejligheder, p. 188.
397For such a provisions in the by-laws of a scheme, see the Western High Court decision reported in Ugeskrift for Retsvaesen 1998, p. 1087.
m y a pa r t m e n t i s m y c a s t l e : l e a v e m e a l o n e ! |
263 |
Metalegal formants
It is in the interest of all owners that every individual owner acts reasonably and in a way that does not cause any nuisance or annoyance to the others. This, however, has to be balanced against the right of unit owners to be in control within the confines of their apartments. The issues raised in this case are usually left to be determined by all the owners in a democratic manner.
England
Operative rules
The developer should have inserted a general right of access into the commonhold community statement398 of the association to allow it to inspect and repair the unit and to see if scheme rules are being observed, and if this is so then Amos cannot exclude the association from access on reasonable notice. The exterior of the front door to Amos’ unit is within the scheme common parts, and therefore he is not allowed to affix a notice to it. With regard to the other conduct, each scheme should prescribe in its commonhold community statement a
set of local rules with regard to the permitted use of units (Model CCS Annex 4).399
If the permitted use of the commonhold is for residential purposes, Benny may be in breach of this sort of local rule provided it extends to conduct by his wife, even if he can show that her medical practice affects only a subsidiary part of the unit. Her nameplate has been affixed to an outside wall. This might amount to an alteration of the appearance of the scheme building, contrary to a local rule. The use by his daughter of three rooms for the purpose of prostitution would amount to an illegal and immoral use and would place Benny in contravention of any suitably drafted local use rule. Even if there was no rule expressly banning such activity, such use would hardly be consistent with purpose of a private residence and if, as to be expected, the local rules of the CCS require this, such a rule is also breached by Benny. The hanging out of washing would seem to amount to an ‘annoyance’ to other unit holders within a suitably drafted local rule prohibiting such.
398 Clarke, Commonhold, pp. 26–41. |
399 Ibid. |
264 c a s e s t u d i e s
A local rule could also limit or ban outright the keeping of any animals, including domestic pets, or it could allow the keeping of domestic pets subject to the prior written consent of the directors, such consent not to be unreasonably withheld. If Doris needs a guide dog as a result of visual loss or impairment, legislation strikes down any outright ban on keeping pets (Disability Discrimination Act 1995 s. 22A). The keeping of a Scottish terrier might be a different matter, as it is a potentially aggressive species and its barking might upset Doris’ neighbours. As to Doris’ four chickens, there is no place for such activity in a residential scheme. Their keeping by Doris would fall foul of a local rule banning outright the keeping or breeding of nondomestic animals, but there would appear to be no ground for an objection to keeping a hamster provided the keeping of domestic pets is in principle allowed.
The definition of any unit within a commonhold must exclude any part of the structure and exterior of a self-contained building such as a block of flats (Commonhold Regulations, reg. 9). These parts fall within the common parts. Ellen thus has no right to add to her unit by enclosing the balcony. If the commonhold association acts promptly they may seek and obtain a mandatory injunction to force Ellen to restore the status quo ante, although much depends on whether the association have previously made clear their opposition to the work, and whether Ellen has conducted the alteration in a surreptitious fashion.400
As the land that Frank seeks to appropriate for use as a garden falls within the common parts, this misconduct can be restrained by the association as the common parts are its property (CLRA 2002 s. 25 and reg. 9). As the playing of football on the common parts is not likely to be an allowed use (Annex 2 of the CCS), the association can require Fred to compel his sons to desist from their intrinsically noisy pastime. In any event, no unit holder is entitled to appropriate the common parts for their own personal use to the exclusion of any other unit holders.
No unit holder can place any item on the common parts, such as the roof, without the consent of the commonhold association, as unit holders have no property in these parts. Anusha’s erection of a satellite dish is therefore an actionable trespass onto the common parts, unless
400 Vicount Chelsea v Muscatt [1990] 2 EGLR 48 at 50E-G.