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 ! |
285 |
sensible for the unit owner to submit the project concerned to the general meeting, accompanied by information concerning the nature of the alteration and the materials to be used.
By way of a final point, it is worth noting that even in the event that the proposed resolution is adopted by the required majority this would not shield the owner against possible legal actions brought by single unit owners459 on the grounds of damage to the architectural value or hygienic condition of the building.460
Frank’s activities are covered by CC art. 1102, which allows every unit owner to use the common property in such a manner that does not alter its use or prevent the other unit owners from using it in the same manner.461 Frank’s activity will certainly prevent other owners from using that portion of the common property in the same manner. Nevertheless, the allocation of exclusive use rights over certain common parts of the common property in the by-laws of a scheme has been accepted as permissible.462
As far as the behaviour of Frank’s sons is concerned, condominium by-laws usually contain special rules regarding order and discipline in the use and enjoyment of the common areas. Furthermore, the provisions pertaining to the prohibition of certain kinds of activities referred to in CC art. 844 may be relevant.
In scrutinising Anusha’s conduct one ought to look to the specific provisions of the Law on analogue and digital Radio/Television Transmissions of 2001, which implemented Decree Law 5 of 2001. In order to promote the development and distribution of new technology for radio-diffusion via satellite, this Law provides that the installation of new devices must be regarded as necessary innovations to improve the use of the common property for which an appropriate resolution is required pursuant to CC arts. 1120 par 1 and 1136 par 3 (art.1122bis par 13).
459 Cass 28.5.1980 no. 3510. |
460 Cass 7.7.1976 no. 2543. |
461The phrase ‘altering the use’ has been interpreted differently. Cass 9.8.1966 no.1514 held that the express or implicit intention of the owner rather than the original or typical use of the common property must be considered. By contrast, Cass 24.3.1964 no. 673 underlines the real or actual use made of the common property, even if it does not comply with the natural function of the property. With regard to the concept of ‘equal use’, some cases equate it with the need to allow an identical use to the current use to all other unit owners (Branca, ‘Comunione’, p. 401, while other cases) equate it to a right to use the common property in any way that is theoretically possible (Cass 11.12.1992 no. 13107).
462Cass. 12.5.1982 no. 2960; Cass. 14.11.1991 no. 12173.
286 c a s e s t u d i e s
Although CC art. 1117 does not mention the ground underneath the building in the list of items included within the scope of the term ‘common property’, the leading doctrinal and jurisprudential view is that unless provided otherwise, the soil underneath the building does form part of the common property. In addition, CC art. 1117 no. 1 provides that the term ‘common property’ includes the ground on which the building stands as well as all parts of the building necessary for common use, while CC art. 50 refers to ownership of land usque ad inferos. Based on the assumption that the subsoil forms part of the common property, the same rules that apply to Frank also apply to Ian. The leading doctrine correctly states that the owner of an apartment located on the ground floor, adjacent to the subsoil, may not claim wider enjoyment and use of the subsoil. In this context, the judicial stance is that it is illegal to lower the surface of ground floors, thus including part of the subsoil as part of the exclusive ownership of an apartment, for to do so would prejudice the rights of other unit owners.463
Incidentally, it has been held that the principles advanced in relation to the excavation of the subsoil beneath a ground floor apartment do not apply to the elevation of the roof of a top floor apartment, provided the owner in question adequately compensates the other owners.464
Descriptive formants
The case poses some interesting issues, the answers to which are based both on general principle and specific condominium legislation.
Netherlands
Operative rules
Amos may lock himself inside his apartment and put a notice on his door that no one is allowed to enter his apartment. However, the bylaws usually provide that the management must be allowed to enter the apartment in cases where urgent repair is needed or where the bylaws of the scheme are contravened (Model By-laws of 2006 art. 23 par. 3). Amos cannot circumvent this provision in the by-laws by putting a notice on his door. Otherwise, he is entitled to his privacy.
463 Dogliotti, ‘I diritti reali’, p. 183. |
464 Cass 30.12.1997 no. 13102. |
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 ! |
287 |
Whether or not Benny may allow his wife to practice her profession as a medical doctor depends not only on the content of the by-laws, but also on municipal regulations such as zoning regulations regarding the purpose for which the building may be used. The by-laws may limit the use to which a unit may be put to, for instance, commercial or residential use, but the by-laws may also provide whether or not a medical doctor may practice her profession in the apartment and place her nameplate on the outside wall. In general the Model By-laws also provide that professional eroticism is not allowed (art. 2, par. 2). This would render the keeping of a brothel in the building impermissible. The Model Bylaws also provide that one is not allowed to hang washing out, affix nameplates on the outside wall or place other items, such as flower boxes, on the balcony without the prior permission of the meeting of owners or in such manner as may be regulated in the house rules (art. 22).
The by-laws may also regulate the keeping of pets by Doris, although any specific prohibition of keeping pets will always have to pass the test of reasonableness and fairness. A resolution that prohibits the keeping of pets can be challenged in a cantonal court within one month, on the ground that it is unreasonable and inequitable (CC art. 5:130). Therefore, a Scottish terrier and four chickens may very well be excluded from the apartment, but a guide dog and two hamsters may well have to be allowed despite the general prohibition of pets. The prohibition of pets is therefore not absolute, because the interest of Doris in keeping her guide dog will almost certainly prevail above the interest of the other owners. By contrast, the other owners would appear to have no legitimate interest at all in prohibiting Doris from keeping two hamsters in her apartment on the ground that they cause excessive nuisance.
Ellen’s enclosing of her balcony with a brick wall in order to add an additional bedroom to her apartment is generally prohibited in the by-laws of a scheme. This is in harmony with CC art. 5:119, which provides that an apartment owner may, without the consent of the other apartment owners, make alterations to his unit, provided that the alterations do not cause any harm (nadeel) to the other parts of the building. The by-laws may however deviate from this provision (CC article 5:119 no. 4), and thus the Model By-laws of 2006 prohibit alteration of the architectural appearance of the building without the consent of the general meeting (art. 23).
The claim by Frank to a portion of the rear garden corresponding to his quota is not allowed, because the common property is, in principle,
288 c a s e s t u d i e s
intended for the common use of all owners, rather than for the exclusive use of only one owner. The same applies to the situation where Frank allows his sons to play football in the corridors. In principle, what is not forbidden is allowed. Therefore, playing football would be allowed but the by-laws or the house rules usually provide otherwise with general provisions on nuisance and noise.
Also the erection of a satellite dish or other device to achieve better TV reception on the roof of the condominium by Anusha can be regulated by the by-laws. In any case, Anusha will require the permission of the general meeting to erect the satellite dish on the common roof. For erection of the dish on her own balcony, Anusha will also need the permission of the general meeting, except if there is no other alternative method available for receiving the channels she wants to receive.465
Herman may rent out his apartment to a person with a drinking problem. This person may however be denied further use of the unit if he causes serious disturbance of the peace, in which case he may be instructed to surrender possession of his unit (see Case 6).
Ian may not excavate a cellar beneath his ground floor apartment in order to store his bottles of wine, because the land beneath his apartment is common property and this would be an infringement of the co-ownership of the other owners. There are no provisions on extension of the unit into the common property. In fact, the possibility for the association of owners to grant permission to one of the owners to exclusively use common property is disputed.466
Descriptive formants
This case relates to the use of private units and the common property and changes to the building. The use of private units may be regulated pursuant to CC art. 5:112 no. 4. This article stipulates that the by-laws may contain provisions regarding the use, management and maintenance of the parts intended to be used as separate units as well as the use of the common property and changes to the building.
465See, among others, European Court of Human Rights 16 December 2008, 23883/06 (NJ 2010, 149); European Court of Human Rights 22 May 1991, 12726/87 (NJ 1991, 740); Court of Cassation (Hoge Raad) 3 Nov. 1989 (NJ 1991, 168).
466For the relevant case law and literature, see Tummers and Mertens, Ingebruikgeving van gemeenschappelijke gedeelten in het appartementsrecht (2012), pp. 58–64.
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 ! |
289 |
Metalegal formants
The various limitations on the freedom of the individual owners of separate units is based on the assumption that residents of an apartment building are more dependent on, and have more frequent contact with, each other than residents of single houses. This interdependence legitimises the imposition of restrictions on the use of separate units and the common property. Whereas CC art 5:112 no. 4 provides that rules on the use of the separate units must be included in the by-laws, the Dutch Court of Cassation467 has ruled that the by-laws of a scheme may also make provision for house rules to preserve the normal degree of order in the scheme (e.g. restrictions on the playing of music after certain hours).
Norway
Operative rules
According to the Law on Owned Units of 1997, each owner has the exclusive use and enjoyment of his or her unit and the right to use common parts of the scheme for their intended or normal use, in conformity with developments and circumstances (s. 19(1)). Any use of a unit as well as of the common property by any owner must not cause any unnecessary or unreasonable damage or nuisance to any other co-owners (s 19(2)). In addition, units may only be used in accordance with their specified purpose (e.g. residential or commercial) (s 19(3)). Ordinary house rules may be adopted at a general meeting by a simple majority (s 19(6)).
Amos must on this basis allow any necessary inspections of common installations and other common facilities in his unit. Apart from this, and except in the case of emergencies, any access to the unit would require a court order. A sign on the door must be treated as part of normal use of the door (even if the outside of the door is part of the common area), unless the sign is offensive or ugly.
Residential schemes consisting of owned units may not be used for professional or commercial purposes, except within narrow limits. An author may write his books in his residential condominium and a lawyer may keep his library there and make phone calls and correspond with clients. Even a small mail order business would be possible.
467 Court of Cassation (Hoge Raad) 10 Maart 1995 (NJ 1996, 594) (comment Kleijn).
290 c a s e s t u d i e s
It is important to determine whether the condominium is still primarily used for residential purposes and also whether any commercial use causes a nuisance to other owners. A medical practice, including visits by patients, as intended by Benny’s wife, will normally be outside these limits. Brothel activities as practiced by Benny’s daughter are apt to create a nuisance for other owners and may accordingly be prohibited for this reason alone. Signs and nameplates on the outside wall appear to be considered a normal use of common areas, but the management board must co-ordinate and control such use. Benny’s wife has no right to advertise a medical practice, which is not allowed in any residential apartment.
Hanging of washing on the balcony can often be a thorny issue. Some people hold strongly that such practices turn the area into a slum, while others find it picturesque. To a certain extent, an owner must take his neighbours’ feelings into consideration in this respect.
The Law on Owned Units of 1997 deals specifically with the keeping of animals (s. 19(6)). House rules may validly prohibit the keeping of animals in a unit, but, despite this, the keeping of animals for good reason must be accepted if it does not cause a nuisance to other owners. A blind person’s guide dog is a classic example. Regarding the other animals, there are hardly any valid grounds for Doris’ keeping them and they will in any case be a nuisance to other owners.
In general, owners are not allowed to change the fac¸ade or the exterior of the condominium building or to take measures that go beyond the normal or intended use of the common property. The casing in of the balcony by Ellen is not allowed without the approval of the general meeting.
Outdoor space may, in the plan of subdivision of the land and building, be made part of a unit intended for individual use (Law on Owned Units s. 6(1)). If this is not the case, Frank may not reserve part of the garden for exclusive use. Playing football in corridors will not only amount to abnormal use of the common property but will also normally cause unnecessary nuisance to other owners and is therefore not allowed.
Anusha’s satellite dish is rather more problematic. As a rule, placing a satellite dish on common property (here on the roof) is not permitted without the consent of the management board. However, it may be argued that an antenna should in some cases be considered a normal utilisation of the common areas that must be allowed.
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 ! |
291 |
Ian’s digging out of a cellar underneath his apartment to store his wine amounts to an appropriation of part of the common property to his exclusive use. It is therefore an activity that goes beyond the normal or intended use of the common property and would therefore not be allowed without the approval of the general meeting.
Descriptive formants
The Law on Owned Units of 1997 deals with these issues by stating only general framework standards. The reason is that individual situations and circumstances can be infinitely variable. There are only a few court cases dealing with such conflicts.
Metalegal formants
Restrictions on the use of units and the common parts of the scheme are necessary in order to protect an owner’s use and enjoyment of his or her individual unit and the reasonable use of the common parts of the scheme. Such restrictions further avoid restricting the well-being of other owners in the normal use of their units and the common parts of the scheme. Paradoxically, owners are better protected against nuisance and disorderly conduct, even in a condominium scheme consisting of detached houses, than are the owners of individually owned houses.
Poland
Operative rules
As already mentioned under Case 2, a unit owner has exclusive ownership and in principle an absolute right of disposal and use over his or her unit. However, ownership in itself is not an unlimited right, for an owner is obliged to act within the limits of the applicable law, the principles of community living and the socio-economic purpose of the right of ownership with regard to the property concerned (CC art. 140). The principles of neighbour law are also applied more strictly in condominium schemes and the Law on Unit Ownership imposes certain specific obligations on unit owners (arts. 13 and 16).
Amos must allow entry into his apartment at the request of the community (there are no formal requirements on notification) in order to allow the conservation and repair of any common parts, such as outer walls and installations, or to install new equipment, for example,
292 c a s e s t u d i e s
internet or cable television (Law on Unit Ownership art. 13 § 2). Furthermore, he can obviously not object to entry by public authorities such as the police or sanitary and epidemiological authorities.
As the outside door is considered to be part of a unit, Amos is allowed to place any notice or picture on the door as long as they are not obscene and do not constitute a misdemeanour. In theory, because an outside door forms part of the aesthetic appearance of hallways, the community of owners could object to strange messages and pictures being put on the door under the general principle that for the common good one owner’s use of common parts must not prejudice their use by others (art. 13 § 1)).
With regard to Benny’s wife, the Polish Supreme Court has held that a unit owner can conduct a profession in the unit without obtaining the consent of the community, because the latter may only exercise powers with respect to the common property. Even the unanimous insertion of such a limitation in the relevant house rules would be invalid because it would be outside the community’s competence and in violation of the provisions of the Civil Code on the right of ownership.468 However, the community may claim that the use in question is inconsistent with the socio-economic purpose of the ownership of units designed for residential use as well as an infringement of the Law on Unit Ownership in that this particular user is excessively onerous to other owners (art. 16). The community may also submit that neighbour law principles have been contravened in that the use of the unit concerned has created a nuisance or annoyance that exceeds the level that any community of owners can reasonably be expected to tolerate, taking into account the socio-economic designation of the property and local custom (CC art. 144).
The success of these claims depends on whether Benny’s wife’s practice does not in fact cause a nuisance or annoyance to the neighbours. This may well be the case if, for example, she only sees a small number of patients during the week, usually at times when other unit owners are at work, while for the rest of the time she uses the unit primarily for residential purposes. In the final analysis, the Supreme Court noted that the community does not have the power to limit the right of ownership of a unit a priori, but that the unit owner must at the same time be aware of the limitations inherent in the right of
468 Supreme Court judgement 2009.04.03 (II CSK 600/08).
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 ! |
293 |
ownership. Thus, in the present scenario, it would seem that Benny’s wife could continue her practice so long as she does not violate the property interests of neighbours.
In the case of Benny’s daughter, the community may argue that the use of the unit for prostitution is inconsistent with the socio-economic purpose of the ownership of residential units, an infringement of article 16, which prohibits use that is onerous to other owners and a breach of neighbour law principles. This aspect also encapsulates cases of so-called psychological nuisance, where, while nothing ‘escapes’ from neighbouring premises such as noise, smoke, smells, vibrations and so on, their use renders the use of the surrounding units less peaceful or causes social or moral concerns.469
It is part of Polish culture to hang washing on balconies. In actual fact most Poles use their balconies not for drinking tea, but for drying their clothes, weather permitting. This is not considered shocking, surprising or objectionable behaviour on the part of unit owners, especially as the inside of the balcony forms part of their apartment.
In the case of Doris, the Law on Unit Ownership does not contain any specific provisions as to the keeping of pets: once again only general ownership principles would be applied given that the community has no powers per se to regulate the use of units. Consequently, the community may assert that the keeping of so many pets, especially the four chickens, in her unit may be consistent with the socio-economic purpose of a farm but not with that of an apartment in a residential scheme. The community may alternatively claim that the keeping of so many animals causes intolerable annoyance to others and thus constitutes a nuisance under neighbour law (art. 16 and CC art. 144). Consequently, in this case, taking into account the socio-economic designation of the property and local custom, Doris’ use of her unit creates a disturbance that extends beyond the level that any reasonable owner may reasonably be expected to tolerate,.
Ellen’s enclosing of her balcony is without doubt an alteration that will affect the outer walls of the building, not to mention its aesthetic appearance, and as such it definitely qualifies as an activity relating to the common property. Therefore, the consent of the community to the change will be required.
469 Ignatowicz and Stefaniuk, Prawo rzeczowe (2009), p. 76.
294 c a s e s t u d i e s
Frank must use the common property in such a manner as not unreasonably to interfere with the use thereof by any other owners (Law on Unit Ownership arts. 13 and 16 and CC arts. 200 and 206). Measuring out a portion of the common property for a vegetable garden means that he is in effect appropriating a part of the common property for his own exclusive use. Such conduct is impermissible if no agreement as to a quoad usum division of the garden area has been reached between him and the community. Allowing his sons to play football in the corridors of the condominium would amount to an abnormal and thus unreasonable use of part of the common property. It also causes a nuisance and prevents other owners from exercising their own rights of undisrupted simultaneous use.
The roof of Anusha’s condominium building is part of the common property, with the result that erecting a satellite dish on the roof requires the prior consent of the community. If consent is refused and Anusha’s unit is part of a large condominium scheme, Anusha may initiate court proceedings within six weeks after the resolution refusing her conduct has been adopted to annul the resolution on the ground that it unreasonably violates her interests (art. 25). A similar result can be achieved in smaller condominiums by reliance on CC art. 201. Anusha could also propose that the owners should be consulted about the programmes they would like to receive so that the community can agree on two or more specific satellite dishes to cater for the needs of all the owners. In this way, the problem of cluttering the roof with satellite dishes and similar installations, which might cause problems when snow is to be cleared from the roof, could be avoided.
Herman, as the owner, may let his unit to anyone he pleases. He is not vicariously liable for his tenant’s behaviour. At the same time, a tenant is always required to abide by house rules, regardless of whether this is stipulated in the lease or not (CC art. 685). If his actions infringe the house rules and also amount to a misdemeanour under the Law on Misdemeanours (art. 51 § 1), the tenant may face police intervention and the community or the police may bring misdemeanour charges in court. Moreover, the Law on Protection of Tenants etc. of 2001 provides that if a residential tenant flagrantly or persistently violates the house rules to such an extent that he inhibits the use of other units in the building, any tenant or owner of premises in the building may bring an action requesting the court to cancel the lease (art. 13 § 1) and to order the vacation of the premises. At the same time,