Экзамен зачет учебный год 2023 / European Condominium Law

(regula aurea) (§ 14). Furthermore, owners are obliged to allow entry to their unit for necessary repairs to the common property. Moreover, individual owners are in principle allowed joint use of the common property (§ 13 par. 2) and are in general not allowed to make any changes to the structure or appearance of the common property unless allowed to do so by law, the constitutive agreement or a resolution of the owners (§ 22).

Therefore, on the given facts the position is as follows:

Amos must allow entry to his apartment if this is necessary for the maintenance and repair of the common property. While the sign on the door technically alters the common property, Amos is not acting illegally because he is allowed to make alterations to the common property that are normal in orderly co-existence (§ 22 par. 1).

A residential unit may not be used for commercial purposes unless such use does not disrupt or annoy the other owners any more than would be the case if the use was purely residential. By these standards, the use of Benny’s apartment for medical practice or as a brothel is

illegal due to the higher than normal frequency of visitors to the unit.423 The use of the balcony to dry clothing, by contrast, is part of

the normal use of the unit.

Doris is allowed to keep any animals that are considered customary in an apartment.424 This is the case with the guide dog, the terrier and hamsters, but not the chickens.

The creation of a bedroom on the balcony by Ellen is illegal, since it substantially changes the appearance of the building.425

As Frank is only entitled to make a joint use of the common property, he cannot fence in part of the garden for his exclusive use, as this deprives the other owners of their right to use this part of the garden. The playing of football goes beyond the use that is ordinarily made of corridors and is therefore also illegal.

The erection of the antenna by Anusha is illegal unless she requires the antenna to satisfy her constitutional right to access information. If she is able to show this, the other owners can by majority decision decide on the appropriate placing of the antenna. The details of what amounts to proper and orderly use (ordnungsma¨ßiger Gebrauch) are not

423OLGR Ko¨ ln 2008, 274.

424OLG Saarbru¨ cken NJW 2007, 779; Bamberger and Roth, BGB Kommentar, § 14 no. 4.

425OLGR Ko¨ ln 2008, 790.

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regulated and must therefore be decided by the courts based on the facts of the individual case.

Herman is obliged to terminate the lease if the tenant is causing a greater nuisance or disturbance to the other owners than is unavoidable in the orderly co-existence of people.426

The excavation by Ian amounts to a substantial change to the common property and is therefore illegal.

Descriptive and metalegal formants

Rules pertaining to the use of the common or private property can be found in many constitutive agreements of apartment ownership schemes or in the resolutions of the owners. The legal boundaries of such rules are disputed. For example, the owners cannot by majority

decision generally prohibit the keeping of animals in the condominium.427 However, it is unclear as to whether the use of a garden for

sporting purposes can be prohibited by resolution.428 Restrictions in the constitutive agreement itself are generally considered to be valid unless they violate the general rules on public policy and good faith (Civil Code §§ 138 and 242).429 Thus, a provision in the constitution prohibiting pets in the apartment is generally valid, but the owners cannot successfully complain of a breach of this rule if one owner requires a guide dog. The exact limits of restrictions in the constitutive agreement are subject of on-going legal debate.430

Whether or not an owner’s behaviour goes beyond what is permitted by law is often a question of fact because the Law on Apartment Ownership contains no prescribed list of illegal conduct. In particular, the installation of satellite dishes has led to many court rulings in which the judges have been faced with foreign owners wishing to install satellite dishes to receive channels from their home country. The courts have generally based their decisions on whether the regular television port in the building already allows foreign nationals to watch these channels.431

426OLG Zweibru¨ cken 30.1.2009 – 3 W 182/08 (Juris).

427OLG Saarbru¨ cken NJW 2007, 779.

428OLG Du¨ sseldorf MDR 1986, 852 on the one and LG Hamburg ZMR 2003, 878 on the other hand.

429Bamberger and Roth, BGB Kommentar, § 15 no. 4.

430Jennißen, Elzer et al., WEG Kommentar (2010), § 23 no. 88 ff.

431Derleder, ‘Parabolantennen in der Wohnungseigentumsanlage und digitales Fernsehen’ (2006), p. 220.

Greece

Operative rules

Almost every one of the aforementioned cases deals with issues normally regulated in the by-laws of a condominium (Law on Ownership of Storeys arts. 4, 5, 9 and 13 and Law on the Modification of articles of the Code of Civil Procedure on Partition of 1985 art. 9).432 The by-laws constitute a legal agreement in terms of which the contracting parties have the freedom to determine the contents of the by-laws subject to two conditions, namely, (i) the by-law must deal with the relationship between owners in a condominium and (ii) the by-law must not contain provisions that conflict with the legislative provisions or the moral values of the community. In principle the by-laws may contain provisions regulating the rights and the obligations of the owners with regard to the common parts as well as the apartments in the condominium.

Amos is in principle allowed to prohibit everyone from entering his apartment. However, he may not do this if entry is essential for works of maintenance and repairs of common property located inside his apartment or for safety reasons (see also Case 2). The by-laws frequently contain a prohibition on notices or other signs on the outside doors or walls of the apartment without the consent of the management.433 Amos would therefore have to obtain the approval of the management for fixing the notice to his door.

The by-laws may limit the general use of apartments in the condominium (e.g. that an apartment may only be used as a residence, an office or a shop) and may prohibit certain kinds of uses (e.g. using the apartment as a bar, a conservatory or for gambling).434 The by-laws may prohibit an owner from conducting her profession in an apartment (unless such a prohibition would amount to an abuse of right on the part of the other owners). This would apply to the medical practice of Benny’s wife and certainly to the use of three rooms of the apartment as a brothel by Benny’s daughter. As mentioned above, the

432Ibid., pp. 378 ff.

433Areios Pagos 179/1980 NoV 179/1980 NoV 28.1472; Areios Pagos 997/1980 NoV 29.327; Areios Pagos 1271/1989 EDP 1991.158; Athens Court of Appeals 412/1989 EDP 1989.178; Athens Court of Appeals 7236/1984 NoV 32.1563; Athens Court of Appeals 8315/1984 EDP 1985.183; Athens Court of Appeals 4006/1986 EDP 1988.12, as cited in Spyridakis, Condominium, p. 397.

434Spyridakis, Condominium, p. 398.

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by-laws frequently contain a prohibition on notices or other signs on the outside walls of the apartment without the consent of the management. Benny’s wife would therefore be forced to remove her nameplate unless she obtained the management’s consent. Moreover, Benny’s daughter may only hang her washing on the balcony if this is permitted by the by-laws. By-laws frequently prohibit owners from hanging their washing on frontal balconies for aesthetic reasons.

As far as Doris is concerned, the by-laws may prohibit the keeping of pets.435 Relevant case law regards such prohibition as valid even though municipal sanitary regulations allow two pets per apartment.436 It would certainly be permissible to keep a guide dog for a blind person and two hamsters in an apartment; however, it is likely that keeping a pedigree Scottish terrier (especially if kept for breeding purposes) and chickens, which are not commonly kept as pets, would not be acceptable. This is because other owners in the condominium cannot be expected to tolerate the noises and smells emanating from the apartment.

Ellen’s enclosure of her balcony with a brick wall in order to create an additional bedroom for her apartment would fall foul of the constitutive deed and contravenes the legislation on urban planning.437

Frank’s activity of measuring out a portion of the common rear garden to plant vegetables for domestic consumption would defy the principle that owners may only make reasonable use of the common property, rather than appropriating parts of the common property for their exclusive use. Allowing his sons to play football in the corridor of the condominium would constitute abnormal use of the common property and therefore would not be allowed.

Besides a prohibition of name plates, advertisements or signs on the outside walls, the by-laws could also prohibit other attachments to the common property such as solar or air-conditioning systems.438 Anusha’s erection of a satellite dish on her roof for the reception of foreign programmes will fall within this category unless such a satellite dish is also in the interests of the other owners, in which case a prohibition would amount to an abuse of power by the management.

435Spyridakis, Condominium, p. 397.

436Areios Pagos 1492/1990 EDP 1991.90; Athens Court of Appeals 4954/1987 EDP 1987, 106; Athens Court of Appeals 6584/2001 EllDik 2002, 23; Athens Court of Appeals

7724/1986 EDP 1986, 189; Athens Court of Appeals 737/1992 EDP 1992, 192.

With regard to Herman’s renting out his apartment to a person with a drinking problem, see Case 2 for the nature of restrictions on the owner’s power of lawful disposal of condominium units.

Finally, Ian’s excavation of a cellar beneath his apartment will constitute a contravention of municipal building regulations and the plan of subdivision of the condominium building, which forms part of the constitutive deed, and so his conduct is impermissible.

Descriptive formants

The use of apartments and the common property are uniquely regulated in the by-laws of a particular scheme. In other words, the by-laws provide for particular restrictions on the use and disposition of the units. However, as analysed in Case 2, restrictions on such use must conform to the provisions of the Law on Ownership of Storeys and the general principles of the Greek CC (good faith and not constituting an abuse of rights).

Metalegal formants

The current legal regime with regard to permitted use of apartments and the common property is considered satisfactory. The legal framework of the Law on Ownership of Storeys provides sufficient scope for personal autonomy on the part of owners, while abusive exercise of this autonomy is curbed by the principle of good faith and the prohibition of activities that constitute an abuse of rights or contravene social morality.

Ireland

Operative rules

Amos has exclusive possession of his unit, as this is one of the hallmarks of a lease.439 This does not entitle him wholly to deny access to any third party to his unit. Under the Multi-Units Developments Act 2011, the OMC has a right of entry to enable the repair and maintenance to any unit where such work is reasonably necessary to ensure the safe and effective occupation of any unit or units in the development (s. 13(1)). Notice is required to Amos (s. 13(2)) unless it is essential to

439Street v Mountford [1985] AC 809 (which, according to Wylie, Landlord and Tenant, p. 43, would probably be followed in Ireland).

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carry out the work, as with an emergency or urgent work that cannot be postponed save at increasing cost to the OMC (s. 13(3)). A house rule under the 2011 Act could presumably prevent owners such as Amos from putting up notices on their doors without the written permission of the OMC (s. 23).

Whether Benny’s wife is able to practice as a doctor from the unit depends on the terms of the lease and any house rule. In a residential scheme, one would expect that the leases would expressly require that units must be used only for the purposes of a private residence. An absolute prohibition on changes of use from residential to professional in a lease amounts to a covenant prohibiting changes of use without the consent of the OMC, which cannot be withheld unreasonably (Landlord and Tenant (Amendment) Act 1980 s. 67). Benny must prove that the OMC’s refusal was unreasonable,440 but a refusal on the ground that the good management of the scheme required its exclusively residential character to be maintained was held not to be unreasonable.441

The use of the premises by Benny’s daughter as a brothel would contravene any lease covenant preventing any illegal or immoral use of the unit. Benny’s lease could ultimately be forfeited by the OMC in proceedings (following a statutory notice procedure).442 In forfeiture proceedings the OMC has to state whether mediation or other dispute resolution procedures have been attempted (s. 24(1) and (2) of the Multi-Unit Developments Act 2011). The court may itself or at Benny’s request order a mediation conference between the parties (s. 27(1) and (2)), which would suspend the forfeiture proceedings.

Benny’s daughter’s hanging out of washing on the balcony might infringe any house rule forbidding such conduct as being out of character with the scheme. The OMC could enforce the rule by seeking an injunction from the circuit court on failure by the party concerned to comply. Even so, having regard to the dispute resolution rules in sections 24 and 27 of the 2011 Act, the court might ask the parties to first try to settle their dispute by mediation.

440Rice v Dublin Corporation [1947] IR 425 at 434.

441OHS Ltd v Green Property Company Ltd [1986] IR 39 p 48.

442Conveyancing Act 1881 s. 14. Despite the special rules in the Residential Tenancies Act 2004, forfeiture is retained for leases granted for a term of more than 35 years (Housing (Miscellaneous Provisions) Act 2009 s. 100(2)(b)).

Doris’ keeping of various animals in her unit may breach a covenant in the lease against causing or permitting the unit to be used in such a way as to cause a nuisance or annoyance to any neighbouring owners, especially if her Scottish terrier barked incessantly. The same could be said about her keeping chickens but probably not of quiet pets such as hamsters, although keeping such animals in large numbers might risk offensive smells, which might then amount to a nuisance. Doris might also be subject to a house rule with regard to keeping animals and pets. No such rule could, probably, prevent her from keeping a single domestic pet, especially if this is a guide dog.

Ellen’s lease may contain an absolute prohibition on the carrying out of structural alterations or improvements to her unit or a fully qualified prohibition.443 The latter would allow such work to be carried out only with the prior consent of the OMC. As Ellen has enclosed her balcony with a brick wall, she is at risk of the OMC seeking forfeiture of her lease, which she can avoid if she proves that the OMC could not reasonably have withheld its consent to the work.444 An alternative remedy, if the brick wall trespassed into the scheme common parts, would be for the OMC to demand a mandatory injunction to demolish the wall provided they act promptly once they become aware of what has taken place. The comments about mediation under the 2011 Act apply to Ellen’s dispute with the OMC.

Since the OMC holds the freehold to the common areas, Frank’s use of the area as a vegetable garden amounts to a trespass, and he can be required, if necessary by injunction, to desist from it. With regard to his allowing his sons to play football in the common areas, Frank’s lease might state that these areas are to be used in such a way as not to obstruct the rights of use of all unit holders, and, if so, ultimately, the OMC may require Frank to prevent his sons from acting as they are doing.

Anusha is not allowed to place any structure and erection on the common roof as this forms part of the common areas of the scheme (2011 Act s. 1(1)). The satellite dish amounts to a trespass, which she can be required to abate by removing the dish.

443An outright ban on the making of any such alterations is rendered fully qualified by Landlord and Tenant (Amendment) Act 1980 s. 68(2)(a).

444An OMC could refuse consent if the work was out of character with the rest of the scheme (O’Neill v Murphy [1948] IR 72).

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Herman’s lease may contain a covenant that he is not to sub-let his unit save with the written consent of the OMC. Such would hardly be given with regard to a proposed sub-tenant whose drink problem might render the latter unsuitable personally, and risk placing the rent income from the unit at risk. Herman has thus incurred a forfeiture – given that the sub-letting cannot be undone, and so the OMC can eventually, once all other procedures are exhausted including mediation, forfeit his lease. Although Herman can apply for relief (under s. 14(2) of the 1881 Act), because he has deliberately broken a covenant in his lease and cannot undo the results it is not likely that relief will be granted.445

Descriptive formants

The relevant rules are based on a mixture of statute and case law.

Metalegal formants

Section 23(2) of the Multi-Unit Developments Act 2011, requires any house rules to be consistent with the terms of the leases of existing and future schemes. Rules with regard to the keeping of domestic pets and other animals would not seem be at variance with a lease obligation not to cause a nuisance or annoyance from within the unit. If a unit holder violated a lease obligation, such as not to use the premises for an illegal or immoral purpose, the OMC may be required to try to settle the dispute at a mediation conference before resorting to the remedy of forfeiture (2011 Act ss. 24 and 27). In the case of a house rule, such as against the hanging out of washing, this could be enforced by the OMC seeking an injunction. In addition, it is possible that any unit holder who considered that house rules were not being enforced by the OMC as freeholder/landlord could complain of a breach of duty of care owed to each unit holder directly and adversely affected by the failure to enforce the house rule.446

Italy

The conduct of the apartment owners Amos, Doris, Hermann and, to a certain extent, Benny’s daughter, may be grouped together. Owners

445Cannon, ‘Forfeiture for Breach of Covenant by a Tenant’ (2007), p. 10.

446Residential Tenancies Act 2004 s. 15 – as suggested by McCartney, ‘Multi-Unit Developments Act’, p 11.

may use their apartments freely and without any limitations, except for those imposed by other owners and/or persons entitled to a right in rem on the apartment concerned. General prohibitions on abuse of property rights (CC art. 833) and on nuisances that go beyond what a neighbouring proprietor can reasonably be expected to tolerate (CC art. 844) apply equally within condominium regimes.447 Furthermore, CC art. 1122 specifically states that a unit owner may not undertake activities (opere) in his unit that cause detriment to anyone. It should thus be borne in mind that activities of unit owners that appear lawful may be deemed to be detrimental to individual freedom or the protection of the residence of owners as guaranteed by the Italian Constitution.

Benny’s wife carrying on a medical practice448 and affixing her nameplate to the wall may be deemed lawful in the absence of a prohibition on such activity in the by-laws of the condominium.449 However, the prohibitions of certain professional activities inside an apartment that are deemed incompatible with the common interest are permissible and frequently encountered in contractual by-laws.450 In spite of this, Italian courts have warned that the tolerance shown over years to the practice of a profession prohibited by the by-laws (which can be easily ascertained)451 cannot be approved. Clauses in the by-laws that restrict the entitlements of owners with regard to their apartments are contractual in nature and may therefore only be modified with the unanimous consent of all the owners.452

Similar conclusions may be drawn concerning the activity of Benny’s daughter. Prostitution as such is not prohibited in the Italian Criminal Code; only the various forms of exploitation of the prostitution are considered criminal activities.

447Girino, ‘Il condominio negli edifici’ (1982), pp. 390–1; Dogliotti, ‘I diritti reali’,

pp. 243–4. For the relationship between the provisions on condominium and CC art 844, see Visco, Problemi giuridici attuali sul condominio negli edifice (1976), pp. 69 ff.

448Provisions relating to the safety and protection of workers in the workplace, as well as building regulations pertaining to the use of Benny’s apartment, have been omitted. They could lead to a doctor’s activity being prohibited inside a condominium unit.

449Provisions in by-laws must be formulated in clear languag: Cass Sez. II Civil, 20.7.2009 no. 16832.

452Cass Sez. II Civil, 31.7.2009 no. 17893. For the distinction between contractual by-laws and by-laws with a real application, see Visco, Problemi giuridici, pp. 49 ff.

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Ellen’s activity impacts on the urban-planning sphere of the scheme, because enclosing a balcony may only be sanctioned if it is done in compliance with the provisions concerning prohibitions on alterations to the building.453 Moreover, the whole building or its fac¸ade may be subject to cultural heritage and landscaping constraints,454 which require authorisation by the competent authority. Finally, and specifically with regard to condominiums, enclosing a balcony must comply with the provisions of CC arts. 1122 and 1120, which concern improvement of, or facilitate, the improved use of the common property. These provisions prohibit any changes that may endanger the stability or safety of the building or its architectural value, or changes that would render some building areas inaccessible even to a single unit owner.

Therefore, Ellen’s activity is permissible if the following criteria are satisfied: (a) Ellen obtains the required authorisation; (b) the condominium by-laws do not prohibit such activities on the common and private areas; and (c) the general meeting has authorised such activity in accordance with CC art. 1120, subject to the limits regarding prohibited modernisation.455 According to a leading textbook,456 the authorisation of the general meeting is needed if alterations to the building may cause damage to certain unit owners,457 or if the addition on the balcony impinges upon limitations on adjacent ownership.458 In such a case, the requisite authorisation must be in the form of a notarial deed recorded in the land register, in order to protect the individual from any future actions that may be brought by successors in title to a neighbouring apartment. Prior to the general meeting, it is

453A multiplicity of criminal actions have been brought based on the violation of building regulations, lack of authorisation from the general meeting and the prohibition on modernisation construction, which prejudice the architectural value of the condominium. See most recently, Cass 11.5.2011 no. 18507; Meo ‘Verande in condominio tra limiti e divieti’.

454Code on Cultural Heritage and Landscaping of 2004.

455Dogliotto, ‘I diritti reali’, pp. 232–3 states that if the modernisation conflicts with the provisions protecting the building’s aesthetic value, no further survey is needed to prohibit such modernisation; even then, if authorised by the competent authorities, such work could still be unlawful if it interferes with the personal rights guaranteed by CC art. 1120 and also because authority to undertake building operations is invariably issued without prejudice to the rights of third parties. See Cass 21.1.1978 no. 839, Cass 14.5.1977 no. 1936. The Court of Appeal in Naples, 28.1.1998 in Civil Justice 1988, 1625 prohibited the conversion of a balcony into a veranda through the use of aluminium and glass that contrasted in colour to the building itself, on the

ground that it was prejudical to the value of the building.