Экзамен зачет учебный год 2023 / European Condominium Law
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she has obtained the prior approval of the commonhold association to put up her dish. She can be required to dismantle the item and make good any damage to the roof, if necessary by a mandatory injunction, provided relief is sought promptly and assuming that Anusha has adopted an obstructive attitude to previous requests to remove the item.
As far as Herman is concerned, the commonhold association can, having requested details from him of the tenancy (CCS pars. 4.2.41 – 4.2.42), require his tenant to comply with the local conduct rules, which should ideally have been set out in the tenancy. The association could claim that Herman, by renting to a tenant with a known drinking problem, has caused a common law nuisance against it and other unit holders, although proof that a nuisance was the certain result of the letting would be required.401
Ian’s excavation amounts to a trespass into the common parts and can be restrained, if need be, by injunction. If the boundaries of the unit and the common parts are to be adjusted so as to allow the excavation of a cellar below ground, this can only take place if the commonhold association approves in advance at a meeting by special resolution, which requires 75 per cent of those voting to approve the change, not to mention the consent in writing of any registered chargee (mortgagee) of the unit (Model CCS pars. 4.8.8 and 4.8.10).
The remedies available to the commonhold association against unruly or troublemaking unit holders ultimately depend on two factors. The directors or their managing agent may opt not to act – available if they have reasonable grounds in the interests of scheme harmony (2002 Act s. 35(2)). They could thus acquiesce in minor infractions such as occasional hanging out of washing or Doris keeping a hamster in her unit. If action is taken, as with Benny’s daughter’s prostitution, the directors must first make use of friendly persuasion, and if this fails they have to use arbitration, mediation or conciliation at their choice before going to court (CCS pars. 4.11.10 – 4.11.16). If the association is advised that there is an emergency, as where a unit holder plans to carry out prohibited alterations to their unit, or the common parts, they may opt to by-pass the internal dispute resolution procedures and seek an injunction or damages in lieu (CCS para 4.11.11).
401 Page Motors Ltd v Epsom & Ewell BC (1981) 80 LGR 337.
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Descriptive formants
The answers are based on the Act of 2002 and the 2004 Commonhold Regulations.
Metalegal formants
The question of behaviour in a commonhold was the subject of consultation.402 The government considered listing conduct rules, as either compulsory or optional. Views were split as to whether there should be a total ban on satellite dishes and aerials being put up on the common parts: some thought that there should as these can affect the appearance of a scheme building, while others thought this would go too far.403 While in principle the commonhold association must not cause or permit the common parts to be altered, an association meeting is permitted by simple majority to approve the installation of a communal aerial or indeed, on the face of it, an individual aerial (CCS para 4.6.1). There was support for not limiting the keeping of guide and hearing dogs in a unit. Optional provisions were also suggested with regard to noise and children playing in the common parts.404 The principles applying to local rules are derogation from the general policy of making use of standard-form documentation but the price of some flexibility, having regard to the nature of different schemes, seems worth paying. As the CCS is registered, it should be easy enough for prospective unit purchasers to discover the local rules that apply.
Estonia
Operative rules
The Law on Apartment Ownership provides that an apartment owner may use his apartment as he pleases, save where such use would conflict with the law or with the legitimate interests of other owners (§ 10 (1)). Moreover, an apartment owner must make normal use of his apartment and must not interfere with the legitimate use of their apartments by any other owners (§ 11 (1) 1)). In addition, he must allow the management body to enter the apartment if this is
402 Commonhold: Proposals for Commonhold Regulations and Analysis of Responses to LCD Consultation Paper (2003).
403 Responses, pp. 121–2. |
404 Ibid. pp. 123–4. |
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necessary for the maintenance of the common property (§ 11(1) 3)). Therefore, Amos may prevent other persons from entering his apartment, except when it is necessary to repair or maintain the pipes, load-bearing walls or any other parts of the common property inside his apartment.
The Law on Apartment Ownership further requires that an apartment must be used in conformity with the law and the agreements and decisions of the apartment owners and, if not regulated in this manner, in the interest of all the apartment owners (§ 12 (3)). Thus if the owners have not agreed or adopted a by-law in terms of which owners may conduct a profession in their apartments, Benny’s wife will not be allowed to open a medical practice in Benny’s apartment. An apartment owner must also refrain from any activities that exceed the criterion of normal use (§ 11(1)(1)).405 Opening a medical practice in an apartment would most probably exceed what is considered normal use of a residential apartment. The placing of a nameplate on the outside wall would affect the common property and would thus require an agreement of the apartment owners (§§ 1(2) and 12(1)). As Benny must ensure that his family members, temporary residents and other persons use the apartment in compliance with the above mentioned provisions (§ 11 (2)), he would be responsible for the conduct of his wife and his daughter.
The use of three rooms as a brothel by Benny’s daughter will not only amount to abnormal use of the apartment and infringe upon the rights of his neighbours (§ 11 (1) 1)) but could also render him liable for the crime of aiding prostitution under § 268 no. 1 of the Penal Code. The hanging of his daughter’s washing on the balcony could also constitute a contravention of a by-law because it affects the harmonious outside appearance of the building.
Local authorities usually limit the keeping of pets in apartment buildings.406 However, the community of apartment owners or the apartment owners’ association may, for example, lay down rules concerning the areas where the pet owners may walk their pets. Doris may
405See Explanatory Memorandum to the Draft Law on Apartment Ownership (403 SE), 02.05.2000.
406Dog owners are fined for violating the local rules on keeping pets (e.g. not cleaning after their pets, or not having a sign on the fence). The local authorities may require the registration of pets and that the public order should not be disturbed by the keeping of or the walking of pets. These local regulations usually require that pet owners in condominiums must follow the rules set by the apartment owners.
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keep the dog and the hamster in her apartment but keeping four chickens there probably exceeds the limits of normal use (Law on Apartment Ownership § 11(1)).
Ellen’s enclosing her balcony to create an additional bedroom would, besides a building permit, need the agreement of the other apartment owners (§ 12(1)) because it affects the harmonious appearance of the building. An activity that increases the size of the apartment will normally also result in a recalculation of the heating costs of the apartment.
Although Frank has an abstract co-ownership share in the common property, he is only entitled to make a normal use of the common property. In this case, he seems to be appropriating part of the common property for his exclusive use and this will interfere with the legitimate rights of the other owners to make reasonable use of the common property(§§ 10 (1) and 11 (1)). Allowing his sons to play football in the corridors of the scheme amounts to Frank’s not using the corridors in the scheme according to their intended purpose (§ 10 (2)) and is therefore not allowed.
Anusha’s erection of a satellite dish on the roof also amounts to using the roof in a manner which is contrary to its intended purpose. However, apartment owners may regulate the use of the common property by an agreement, and thus agree to the installation of satellite dishes on the roof for the wider reception of foreign TV programmes.
The Law on Apartment Ownership does not contain any restrictions on the right of Herman to let his apartment (§ 7). Therefore, he
is entitled to let his apartment to anyone, in the absence of any agreement or adopted by-laws to the contrary (§ 12).407 In
turn, Herman would be responsible for the conduct of his tenants (§ 11 (2)).
As the land underneath a building is also part of the common property, Ian would not be allowed to extend his apartment by adding a cellar in which to store his wine (§ 11 (1)(1)) unless he obtains the prior consent of all the owners (§ 12 (1)). He would also need a building permit from the local authority to undertake this work.
407 This assumes that the right to use includes the right to dispose of an individual unit.
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Descriptive formants
The above responses are mainly based on the provisions of the Law on Apartment Ownership and agreements concluded among the unit owners concerning the use of units and the common property
Metalegal formants
The basic principle is that an owner may use his apartment as he or she thinks fit but must refrain from activities exceeding the normal use of the apartment that would adversely affect the rights of other apartment owners (Law on Apartment Ownership §§ 10(1) and 11(1)1)). The Supreme Court has found that closing a water pipe and thus depriving the other apartment owners of the possibility to use water can be qualified as conduct exceeding any normal use.408 Running a noisy workshop in an apartment has also been cited as an example of an activity that does not fall within the criterion of normal use.409 An apartment owner who violates these obligations and damages the property of another can be sued for compensation for damages caused unless the apartment owner can prove that his breach of the relevant obligations was due to circumstances beyond his control, and that he cannot reasonably be expected to take into account or prevent such circumstances from occurring or to overcome the nuisance or the consequences thereof (§ 11 (3)). The claim for damages may be submitted either by the apartment owners or by the apartment association.410
The main principle regarding the use of the common property, is that it must be used in accordance with its intended purpose (§ 10(2)). The use of the common property, however, may be regulated by agreement of the apartment owners. In practice the agreements on the use of parking places are of considerable importance.
It is not sufficient for apartment owners to have imposed on them a duty to participate in maintenance of the building. In order to provide for a healthy and peaceful living environment (which also increases the value of each apartment), the apartment owners must also have regard for the other owners’ legitimate interests.
408Decision of the Civil Chamber of the Supreme Court of 16. November 2006 in matter 3-2-1-114-06 (RT III 2006, 43, 367).
409Explanatory memorandum to the Draft Apartment Ownership Act (403 SE), 02.05.2000.
410Decision of the Civil Chamber of the Supreme Court of 1. November 2006 in matter 3-2-1-91-06 (RT III 2006, 40, 343).
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France
Operative rules
This case deals with the rules that must be respected by owners in a condominium in order to create peace and harmony in the condominium: as a matter of fact, one cannot enjoy as much freedom to do as you please in a condominium as one would have when one lives in a separate house.
Amos is generally allowed to exclude any persons from entering his apartment except if entry is necessary to carry out maintenance or other works which would benefit the community as a whole. The Law on Apartment Ownership provides that all owners must allow representatives from the management body to enter their apartments in order to do necessary repairs or other prescribed work inside the apartment (art. 9 par. 2).411 Thus, if it is necessary to fix a central water pipe in Amos’ apartment or to pass a cable through his apartment to reach a common part at the other side of his apartment, he will have to permit workmen entry into his apartment for a short period of time. At least eight days’ prior notice of the intended entry is required except in case of an emergency (par. 3). Amos can claim compensation for any damage caused or, if he is allowed to exercise his profession in his apartment, for loss of use of the apartment (par. 4).
The fixing of a notice to his door would in principle need the consent of the management association (syndicat) because it modifies the common parts of the scheme (Law on Apartment Ownership art. 25). See also below on the fixing of a nameplate by Benny’s wife.
If the character of the building is not purely residential but allows for the exercise of professions, Benny’s wife can conduct her profession as a medical doctor in the apartment. If the building is described as being a ‘middle class’ housing development, French case law usually accepts that this allows certain liberal professional persons such as barristers, medical doctors and writers to conduct their profession in an apartment.412 Case law also accepts that the exercise of liberal professions
411Art. 9 par. 2 refers to works regularly and explicitly approved by the general meeting under art 25 (e), (g), (h), (i) and (n), 26 and 30, which includes among others works mandated under legislation or regulations, works intended to save energy and reduce emissions of greenhouse gas, works required to ensure compliance with housing standards health and safety and the removal of a garbage chute to ensure the required hygienic conditions.
412Cass. Civ. 3e`me 13 Nov. 1975 no. 74-12339.
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in only two rooms of a larger apartment will be in conformity with the residential nature of the building.413 However, if the exercise of liberal professions is expressly prohibited in the by-laws of the scheme, Benny’s wife will not be able to conduct her profession in the building.414 In brief, case law is flexible on this issue.
The fixing of a nameplate on the outside wall would in principle need the consent of the management body because it modifies the common parts of the scheme (Law on Apartment Ownership art. 25).415 But the fixing of nameplates is usually regulated in the by-laws of the scheme (re`glement de coproprie´te´). The Law on Horizontal Property as interpreted in case law accepts that the fixing of nameplates may not be forbidden in mixed-use condominiums that cater for residential, professional and commercial uses (art. 43).416 However, the
by-laws may prescribe the size and nature of the nameplate as well as the manner in which it must be affixed to the wall.417
Benny may not allow his daughter to practice prostitution in the apartment if the by-laws, as is common in France, prescribe that apartments must be occupied by people of good morals. In any case, persons involved in this type of activity are liable to criminal prosecution.
If the by-laws of the condominium prohibit the hanging of washing on the balcony, Benny must observe this rule.418 If this is not the case, the hanging out of washing can still be challenged on the ground that it conflicts with the intended use (destination) of the building (Law on Horizontal Property art. 8). This complicated notion must take account of the use of the building as regulated in the by-laws as well as by various objective elements, such as the neighbourhood in which the scheme is situated and the type of condominium concerned and its facilities. If, for instance, the scheme where Benny lives is a ‘middleclass building’ (habitation bourgeoise), the hanging of washing on the balcony would be unacceptable. The owners could sue Benny for an interdict to stop his daughter from hanging her clothes on the balcony.
In the case of Doris, an absolute prohibition on the keeping of domestic animals in a condominium would be invalid as being
413Court of Appeal, Paris 9 June 1989 (Recueil Dalloz 1989, IR. 216).
414Court of Appeal of Paris 20 Nov. 1979 (Recueil Dalloz 1980, IR.128).
415Cass. Civ. 3e`me 2 Oct. 2001 (Revue Construction Urbanisme 2002, no. 36).
416Cass. Civ. 3e`me 16 Mars 1988 no. 86-15098.
417Court of Appeal, Paris 11 April 2002 (Loyers et coproprie´te´ 2002, no. 214).
418Cass. Civ. 3e`me 27 Nov. 1973 no. 71-14219.
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contrary to Law on the Modification of Law of 1 September 1948 of 1970 art. 10. The keeping of a guide dog in an apartment would always be acceptable but if a pedigree Scottish terrier is kept for breeding purposes, it may be challenged as being against the intended use (destination) of the building. The by-laws may allow other kinds of animals to be kept in her apartment on condition that a nuisance or risk of injury is not caused by the number or type of animals kept. While the keeping of a hamster would be acceptable, the keeping of four chickens would definitely cause a nuisance and would thus not be allowed.
Ellen is not allowed to enclose her balcony with a brick wall without a majority resolution of the owners at a general meeting (Law on Apartment Ownership art. 25) because such works would affect the common parts of the condominium and also the outside appearance of the building. The outside boundaries of balconies are usually classified as common parts. If Ellen undertakes the work without the approval of the management body, she can be compelled to demolish the enclosure and pay compensation to the management body (syndicat) for any damage caused to common parts.
Frank is not allowed to demarcate for his own use a portion of the common parts (rear garden) of the condominium. Co-owners obtain only an abstract share in the common parts, which cannot be materialised by a purported demarcation of a specific portion of the common property. Any conduct of that kind is an abuse of their right to make reasonable use of the common parts and any offending owner can be prohibited by interdict from continuing such activity. However, Frank could perhaps obtain a decision of the general meeting allowing him to exercise an exclusive right of use (droit de jouissance exclusive) on a portion of the garden, which would require a modification of the by-laws (re`glement de coproprie´te´) by the general meeting. There is copious case law in France about abusive use of gardens in condominiums, even when an owner has obtained an exclusive right of use on a part of the garden. An important factor is that a unit owner must always conform to the intended purpose of the scheme in his use of part of the garden.419
419Cass. Civ. 3e`me 29 Jan. 1997 no. 95-14316. Case law on this topic is very complicated, mainly because the courts are not clear about the nature of the right of exclusive use of the common property.
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Frank’s allowing his sons to play football in the corridors of the condominium would be unreasonable use of the corridors, which are common parts of the building. Frank and his sons must use the common property in such a manner as not to interfere unreasonably with the use thereof by other owners (Law of Apartment Ownership art. 9 par. 1). The owners could then sue Frank on the basis that he must observe the by-laws of the condominium (art. 15 par. 1).
Anusha’s case is more complicated, because she wants to erect her own satellite dish on the roof of the building for wider reception of foreign TV programmes, which probably means that the rest of the owners are already served by another satellite dish. If there was no satellite dish on the roof, she would have to obtain a majority resolution allowing her to erect her own satellite dish on a part of the common property. If a satellite dish has already been erected, the Law on Installation of TV Antennas of 1966 provides that the general meeting can only refuse her installation of a satellite dish on a ‘serious and justifiable ground’. Some management bodies (syndicats) prohibit satellite dishes because they are not aesthetic, others claim that co-owners have a right to information provided by a special satellite dish, while still other management bodies argue that they can trigger fires or create other risks to the building. The determination of what is a ‘serious and justifiable ground’ is usually considered to be one of fact. The High Court has decided that the management body’s (syndicat’s) authorisation could lawfully be given subject to certain conditions, for instance, that a professional must undertake the installation under supervision of an architect.420 Once Anusha has obtained the approval of the management body, she will have to pay for the installation of the satellite dish as well as for its future maintenance.
As an owner, Herman is not responsible for his tenant’s bad habits. If the tenant makes a nuisance of himself when drunk, the other owners can sue him personally on account of anti-social behaviour in the neighbourhood (’troubles de voisinage’), which is an established caselaw concept in France. The other owners can ask the court for an injunction against the tenant to stop his anti-social behaviour and claim compensation for damages suffered.421
420Cass. Civ. 3e`me 9 Feb. 2000 no. 98-15495.
421See for instance, Court of Appeal, Paris 20 Nov. 1996 (Loyers et coproprie´te´ Mars 1997, no. 91) (trouble caused by cats). A co-owner can also sue another co-owner on this
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Ian’s excavation of a cellar beneath his ground floor apartment will obviously affect the common parts of the building – namely, the foundations and the land underneath the building. Ian would have to obtain a majority resolution from the general meeting. The Law on Apartment Ownership also requires that the works must conform to the intended purpose (destination) of the condominium building (art 25). There is a certain amount of case law in point.422
Descriptive formants
The above answers are mainly derived from the provisions of the Law on Apartment Ownership, later amendments of this Law and special provisions inserted in the by-laws of a scheme. The abundant case law on these matters also provides some specific answers to some of these issues.
Metalegal formants
The policy behind the framework constituted by provisions of the Law on Apartment Ownership, by-laws and the case law is the idea that owners share a building where apartments are in very close physical proximity to each other and are served by common parts, which are going to be used by everyone in the scheme. More generally, living in a condominium is not the same as living in your own house on a separate parcel of land. Furthermore, there can only be harmony in the scheme if all occupiers respect the intended purpose (destination) of the condominium scheme.
Germany
Operative rules
Each owner is permitted to use his apartment in any way he wishes as long as he stays within the limits of the constitutive agreement and the general law (Law on Apartment Ownership § 13 par. 1). Therefore, the Law on Apartment Ownership provides that owners cannot use their private property in a way that causes a nuisance to others unless such a nuisance is unavoidable in people’s orderly co-existence
basis, even if the trouble is caused by his tenant: Cass. Civ. 3e`me 30 June 2004 no. 03-11562 (Bull. Civ. III, n 140 D. 2004, 1134) obs. Giverdon & Capoulade,
RTDCiv. 2004, 753.
422 Weisman, Coproprie´te´ (1989), no. 1134.