Экзамен зачет учебный год 2023 / European Condominium Law

the court will consider whether the offending tenant is entitled to occupy premises provided by the local authority (art. 14 § 1).

Ian’s activity of excavating a cellar beneath his ground floor apartment intrudes on the land in the scheme that always forms part of the common property. Hence, Ian must obtain consent in advance from the community to carry out the activity in question. What is more, building regulations would require the permission of the local authority concerned for such construction.

Descriptive formants

The seemingly wide powers of an owner to conduct any profession he or she pleases in a unit are based on the above-mentioned decision of the Polish Supreme Court. However, conducting a professional activity in a unit of a kind that entails frequent visits by clients and thus creates a nuisance is always seen as being problematic. There is a trade-off between the freedom of one owner and the rights of other owners. The same applies to keeping pets. It seems that the only way to prevent these types of use is to show that they are a nuisance or annoyance (Law on Unit Ownership art. 16 and CC art. 144). However, these two issues undoubtedly require more detailed regulation, particularly with regard to the question of conducting a professional activity in one’s unit.

It has been contended that a tenant’s violation of house rules will bind the unit owner, with the result that the community of owners may make use of the Law on Unit Ownership art. 16 to cause an attachment and sale in execution of the unit, even though the owner did not personally infringe the rules in question. This issue remains to be clarified.

Metalegal formants

Disputes over the permitted use of units are often tricky to resolve as unit owners tend to insist on the extensive content of their ownership and resulting entitlements. The extent to which house rules can bind owners is also limited. Some communities attempt to regulate what they regard as admissible behaviour of unit owners to such an extent that the owners’ personal freedom is curtailed. In this regard, it should be considered whether these matters should not be carefully regulated in a written set of house rules, approved by the community. This may change the mentality of unit owners, who would be more aware of being part of a larger community, rather than just an individual unit

296 c a s e s t u d i e s

owner. Issues concerning the binding force of house rules, particularly seeing that units may change hands from time to time, should ideally be resolved by the legislator in a clear manner, as this would avoid many uncertainties and flesh out the application of CC art 211.470

Portugal

Operative rules

As a general principle, an apartment owner is normally considered to be master of his own apartment and as a result, he may use, enjoy and administer it, and prevent others from encroaching upon his rights, within the limits imposed by the general law (CC art. 1305). The CC provides that the unit owner is the exclusive owner of the unit (proprieta´rio exclusivo) with full rights of disposal as well as ordinary rights of use and enjoyment (art. 1420(1)). His rights are, however, not absolute, but restricted by the relevant provisions of the Civil Code and local public authorities.471 In addition, the constitutive title of the condominium may also determine the intended purpose or use of the apartments and even contain rules with regard to the use, control and maintenance of units (CC art. 1418(2)(a) and (c)). Finally, apartment ownership is also subject to restrictions imposed by the concurrent rights of all other unit owners.

Amos has the right to exclude others from entering his property. Portuguese law has no express provision that an owner is obliged to allow the manager access to his apartment under certain circumstances. Consequently, some authors invoke the principles of neighbour law and specifically CC art. 1349 (which allows an owner to erect scaffolding on a neighbour’s property if that is the only way to carry out works of maintenance and repairs on his own property) to oblige Amos to allow the manager access to his apartment for purpose of maintaining, repairing and replacing common areas and facilities, and

470The agreements and resolutions specifying the management and the mode of using condominium property, or excluding the right to terminate the condominium, is also enforceable against a person who acquires a co-ownership share if the acquirer was aware of such resolutions or could easily have obtained such knowledge. The same applies if the permissible use of condominium property is specified in a court decision.

471Passinhas, Assembleia, pp. 105 ff.

also to effect any emergency repairs required to prevent damage to the common property.472

Amos is entitled to put a notice on his door, which is considered a normal entitlement of owners over their property (for example, for professional persons to put a notice of their working hours on their front doors). To attach a temporary, easily removable notice to a common wall could also be considered lawful, because it would not materially alter the purpose of the wall concerned. For example, if Amos wishes to let his garage, he is permitted to put up a notice advertising the garage in the entrance hall of the building.

Benny would not be able to allow his wife to conduct her profession as a medical doctor in the apartment, because apartments must be used in accordance with their intended use and the general purpose of the building, as set in the constitutive title or, by default, in the project plan approved by the municipality (CC art. 1422(2)(c)).473 Benny would, accordingly, need the prior written consent of all the owners to a modification of the constitutive title deeds (CC art. 1419(2)). Even if the refusal of consent is unfairly prejudicial, unjust or inequitable, the owner cannot apply to the court to declare the refusal unreasonable.

Similarly, Benny is not entitled to place the nameplate in question on the outside wall. Common parts can be used by all joint owners, in accordance with their purpose, provided that their use does not adversely affect the reasonable use of the common property by other owners (CC art. 1406 read with art. 1420(1)). The attachment of a nameplate to a common wall would therefore only be considered proper in a commercial, professional and industrial scheme.

Benny cannot allow his daughter to carry on prostitution in the apartment because activities that are harmful to the reputation of the building are prohibited (CC art. 1422(2)(b)). The hanging of washing on the balcony is considered to fall within the normal powers of a unit owner, except where it might be injurious to the reputation of the building (CC art. 1422(2)(b)). A temporary activity, such as hanging the washing on the balcony, is not deemed to prejudice the harmonious appearance of the building (CC art 1422(2)(c)).

472Pires de Lima et al., Co´digo Civil Anotado (1987), III, p. 424; Passinhas, Assembleia p. 111; Decision of the Supreme Court of 13 April 1994 and Decision of the Court of Appeal of Lisbon, of 5 July 1978, both in www.dgsi.pt.

473Decision of the Supreme Court of 19 May 2005, in www.dgsi.pt.

298 c a s e s t u d i e s

Doris is obliged to use the apartment in accordance with its intended use and the general purpose of the building (CC art 1422(2)(c)). To keep four chickens in a residential apartment is not within the ambit of its regular use because chickens are not normally kept as pets. However, keeping the guide dog, the Scottish terrier and the hamsters in the apartment is considered lawful and does not need the prior authorisation of the other owners, except if their custody causes a nuisance. It should be noted that keeping more than three dogs in an apartment needs a special licence from the public authorities.474

Ellen, by enclosing her balcony with a brick wall to create an extra bedroom, contravenes CC art. 1422(2)(a). An apartment owner cannot alter or change the architectural components or the external structure and appearance, or impair the structural integrity and safety of the scheme building (CC art. 1422(2)(a)).475

Measuring out a portion of the common property for a vegetable garden means that Frank is appropriating a part of the common property for his own exclusive use, which is not lawful. Again, owners are entitled to use the common property only in such a manner that will not unreasonably interfere with the use thereof by other owners (CC art. 1406(1) read with art. 1420(1)). Frank therefore cannot allow his sons to play football in the corridors of the condominium either, because such use would constitute an abnormal use of the corridor, in contravention of CC art. 1406(1).

Anusha may lawfully erect her own satellite dish on the roof of the condominium building for wider reception of foreign TV programmes in her apartment. In practice, owners in a condominium scheme are normally served by a central antenna or by cable TV. In older buildings, to place an antenna on the roof of the building was considered a regular use of it, and would not be consider a contravention of art. 1406. She is making regular use of the roof (an ancillary utility) and she is not preventing the others from doing the same.

There are no provisions preventing Herman from renting out his apartment to a person with a drinking problem. The owner of an apartment has full rights of disposal over it (CC art. 1420(1)). Nevertheless, it must be emphasised that the landlord is entitled to

474Passinhas, ‘Os Animais e o Regime Portugueˆs da Propriedade Horizontal’ (2006), pp. 833 ff.

475See Decisions of the Supreme Court of 16 October 2003; 12 July 2005; and 19 February 2008 www.dgsi.pt.

cancel the contract if the tenant repeatedly and seriously infringes condominium by-laws or contravenes rules on good neighbourly conduct (CC art. 1083(2)(a)).

Ian cannot excavate a cellar beneath his ground floor apartment in order to store his bottles of wine because the land in the scheme is always treated as being common property (CC art. 1421(1)(a)). As a general principle, an owner is bound to make reasonable use of the common property so as not to interfere with the concurrent and equal rights of other owners and he must not compromise the general purpose of the building (CC art. 1406 read with art. 1420(1)). As a result, an owner is not allowed to prevent other owners or any lawful occupiers from using the common property, or to appropriate any part of the common property permanently for his own personal use.

Descriptive formants

The above answers are mainly based on CC arts. 1305, 1406, 1420, 1422, which deal with an owner’s powers of use and enjoyment over his or her apartment and the common property.

Metalegal formants

The concept of apartment ownership consists of two components, namely, individual ownership of a unit, and joint ownership of the land and parts of the building which do not form part of the unit (CC art. 1420(1)). The ordinary rules with respect to the creation, transfer and limitation of rights in immovable property apply.

The policy behind the overall framework constituted by the provisions of the Civil Code, and mainly by art. 1422, is that an owner should have full rights of use, enjoyment and disposal with regard to his or her apartment. The content of ownership of an apartment must, necessarily to a certain extent, be circumscribed by the basic characteristics of apartment ownership, which has as its object parts of a destructible building, where apartments are closely linked physically and where apartment owners live in an intensified community. Apartment owners are therefore obliged to use the apartment in accordance with its intended use and the general purpose of the building as laid down in the constitutive title (CC art. 1422(2)(c)). The owner is entitled to attach a notice to his door, to hang washing on the balcony, and to keep pets in an apartment and erect an antenna on the roof. He is not, however, entitled to impair the outward appearance or the structural integrity of the building. He cannot carry out acts or activities harmful

300 c a s e s t u d i e s

to the reputation of the building, or prohibited by the general meeting without opposition. Therefore, owners are not entitled to carry on prostitution in the apartment or to enclose a balcony.

Again, any owner may use and enjoy the common property provided he does not interfere with the reasonable use and enjoyment thereof by any other owner or appropriate part of the common property for his or her exclusive use (CC art 1406 read with art 1420(1)). The owner thus has a right to attach signboards, advertisements and nameplates to the external walls of the building in a commercial scheme, and he also has the right to fit a personal antenna on the common roof in a residential scheme. By contrast, an owner is not allowed to prevent other owners and lawful occupiers from using the common property, nor to appropriate any part of the common property permanently for his own personal use. In addition, he cannot unilaterally carry out works with regard to the common property nor use the common property for an abnormal purpose or in an unusual manner.

Scotland

Operative rules

The situation here is very similar to that under Case 2 for Scots law. In TMS tenements, any localised rules can only take the form of real burdens. But real burdens have to be praedial (relating to land) and not personal. Also, any breach of a real burden can only be enforced by neighbours who would suffer ‘material detriment’ to the value or enjoyment of their property. These two tests are likely to be too stringent for most rules designed to deal with the various ‘misuses’ in the scenario. A brief analysis of each individual issue follows.

Amos can do whatever he likes. Any rule to deal with him will not be praedial. No one can prove material detriment. Access for maintenance and related purposes under both TMS and DMS is regulated by the Tenements (Scotland) Act 2004 (s. 17). This equivocal provision provides that the owner should allow access on reasonable request and if notice was given but that the owner may refuse such access if ‘having regard to all the circumstances it is reasonable to refuse access’. There is no reference as to the resolution of any disagreement over who is more reasonable. Possibly, the sheriff court can be approached for a decision, but this is not expressly provided neither to my knowledge has it been attempted.

Benny’s action is likely to constitute a breach of a quite common real burden; that the apartment should not be used for any business, profession or trade. And in the case of brothel keeping (which is illegal in terms of criminal law across the jurisdictions of the UK), illegal activity may also be prohibited in titles (but less common than the restriction on business and trade). The only question is whether any of his neighbours can prove ‘material detriment’ to their property because of his breach. Conveyancers and academics used to think that the immediate neighbours must have such interest to enforce. This seems no longer the case following a controversial decision in the Sheriff Court.476

Doris’ pet situation is possibly controllable by real burdens (which is quite common in deeds of conditions). But as in the preceding paragraph, the question is whether anyone would have ‘material detriment’ to enforce against a breach. There is the possibility that any nuisance may be actionable through delict. However, the traditional thinking before the 2003 reform was that real burdens would provide a much more certain threshold than common law. Keeping three noisy dogs in a small flat may be a nuisance. But one needs to go to the court in order to ascertain whether these dogs are noisy enough to be a nuisance. This uncertainty should have been avoided if a real burden or rule stipulates that no dog may be kept at all. However, this understanding is now thrown into doubt because of recent case law.477 It seems that keeping dogs against such prohibition is only actionable if ‘material detriment’ can be proved, which is perhaps as uncertain as whether particular dogs caused a nuisance or not in the first place.

Ellen’s balcony would be most unusual in Scotland as there are hardly any that are big enough for a bedroom. Legally speaking, there is not a lot anyone can do. Although the aesthetic appearance of the building would no doubt be ruined, this is unlikely to be praedial nor materially detrimental.

Frank’s action has nothing to do with the law of the tenement but is rather part of the law of co-ownership. Co-owners cannot exclude others from any part of the common property. Co-owners cannot use

476Barker v. Lewis 2007 SLT (Sh Ct) 48, appeal to sheriff principal 2008 SLT (Sh Ct) 17. See Reid ‘Interest to Enforce Real Burdens’, p. 440; Rennie ‘Barker v. Lewis’ p. 77; Xu ‘Problems in Law of the Tenement’, p. 131.

477Ibid.

302 c a s e s t u d i e s

common property in a way repugnant to the rights of others, such as playing football where others need to walk normally.

The roof is owned by the top flat proprietors by default (which Anusha may or may not be), but often in title deeds it is owned by all owners. Whether an owner can install TV antennas or satellite dishes on the roof or external walls owned by all others is never legally disputed or settled. But it is done all the time in practice. The Tenements (Scotland) Act 2004 was extremely cautious in keeping away from this issue, because the Scottish Parliament could

not legislate on any matter involving telecommunications, broadcasting and so on.478

A drinking problem is not praedial and beyond real burdens. Professor Halliday once encountered the case of a nightmarish flat owner with the worst of drinking and lifestyle problems.479 There is nothing anyone can do. Possibly under public law there is the option of an AntiSocial Behaviour Order, which may eventually come back to bite the landlord who rented out the apartment to such a tenant causing trouble. This is of course a completely different matter from the law of apartment ownership.

Ian’s action may be questioned on different fronts of public law and private law, but none of them will necessarily be conclusive. The solum is owned by Ian as the bottom flat owner by default. But this default position is almost always modified by title deeds so that the solum is owned by all owners. If this is the case, Ian obviously cannot dig into the solum without the consent of everyone else. Even if the solum is owned by Ian exclusively, he is under the obligation not to interfere with the support to the building (Tenements (Scotland) Act 2004, s. 9). If his ‘digging’ in any way affects the structure of the building, the other owners can rightly object to it. Lastly, this may be a public law issue dealt with under the Building (Scotland) Regulations 2004, requiring a building warrant from the Scottish Government (formerly dealt with by the Scottish Building Standards Agency).

478Human rights concerns are always a balancing exercise. The fundamental right to information could not override the fundamental right to property. If you want to watch satellite TV from a property with no possibility of installing a satellite dish, that does not make your neighbour responsible for making room over his roof for your dish.

479Cusine, The Conveyancing Opinions of JM Halliday (1992), pp. 728–31.

Descriptive and metalegal formants

Please see the analysis of Case 2. The concerns are very similar. The institution of real burdens is considerably limited in its capability to deal with the more ‘personal’ side of apartment life.

Slovenia

Operative rules

Amos may, if he so wishes, lock himself inside his apartment and put a notice on his door stating that nobody may enter his apartment. However, he must permit any authorised persons to enter his apartment in order to carry out repairs that cannot be carried out otherwise, or only at disproportionate expense. If he denies such persons entry, the other apartment owners or the manager can ask the court to order access in a non-contentious procedure (Property Code art. 121(2) and (3)).

With regard to the profession of Benny’s wife, the Law on Housing stipulates that an apartment owner (or another resident of the apartment) may put a residential apartment to professional use, provided that it does not disturb the other residents in their peaceful enjoyment of their apartments, and does not impose an excessive burden on the common parts (art 14(1)). For such professional use the apartment owner concerned is required to obtain the consent of apartment owners holding more than 75 per cent of all the co-ownership shares, as well as the consent of all the neighbouring owners.480 In addition, Benny’s wife must obtain a licence from the government allowing her private practice to be exercised in an apartment in a residential building. The community by-laws may forbid Benny’s wife from placing her nameplate on the outside wall or she may alternatively require the consent of the other co-owners or the manager for such an act.

Running a brothel may be illegal in Slovenia.481 If this is the case, Benny may not allow his daughter to use some rooms of the apartment for that particular purpose. Even if it is not formally treated as an illegal activity, running a brothel would be considered to amount to a disturbance of the residents of the building in their peaceful

480Adjacent to, above or under the apartment.

481Art. 113(1) of the Criminal Code forbids the procuring of prostitutes for economic exploitation as is the case when a brothel is run (Court of Appeal Ljubljana, I Cp 69/ 2005, 23 November 2005).

304 c a s e s t u d i e s

enjoyment of their apartments. Moreover, it cannot be assumed that a qualified majority of apartment owners would give their consent to this kind of economic activity being carried out within the condominium. Therefore, the activity of Benny’s daughter would not be allowed by the Law on Housing (art. 14(1)).

Hanging out washing on balconies (as done by Benny’s daughter) is a widely accepted practice in blocks of apartments in Slovenia. However, it may still be forbidden by community by-laws or the relevant house rules of a scheme, which is very unlikely.

Restrictions on the keeping of pets may be provided for in the community by-laws, although this is seldom encountered in practice. As there are no specific legislative provisions regulating this area, the general rules apply, which entails that any limitations must comply with the test of reasonableness. Therefore, the four chickens may very well be validly excluded from the apartment, whereas dogs are quite often kept in apartments in Slovenia. It would be considered extremely unreasonable not to allow Doris to keep a guide dog in her apartment. The same would be true as regards the two hamsters, which one may safely assume would not cause a nuisance or annoyance to the neighbours.

Ellen’s enclosure of her balcony with a brick wall in order to create an additional bedroom for her apartment would entail a change to the outside appearance of the building. Moreover, this brick wall forms part of the outside wall of the building, and thus it is a common part. Thus, to carry out such a change, the consent of those apartment owners holding more than 50 per cent of the total co-ownership shares would be needed (Law on Housing art. 15). The consent can be given at a general meeting or by the owners giving their consent subsequently by signing a statement approving such a change (Law on Housing art. 37(2)).482

Frank is not allowed to claim possession of any part of the rear garden that corresponds to his quota. Co-ownership shares are abstract shares and cannot be ‘materialised’ in any parts of the co-owned property. All apartment owners therefore have the right to use the whole of the rear garden.483 The intensity and the frequency of the

482If a meeting is attended by only three of ten apartment owners that hold 55 per cent of the co-ownership shares, a resolution requiring a more than 50 per cent majority will be considered adopted if all three owners vote in favour of the resolution.

483Court of Appeal Ljubljana, I Cp 3289/2009, 27 January 2010.