Экзамен зачет учебный год 2023 / European Condominium Law

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Descriptive formants

Apart from being subject to the rules of neighbour law and the doctrine of abuse of rights, the use of individual units may be regulated in the community by-laws furnished by the developer or approved by all the co-owners. Restrictions on the use of apartments in the community bylaws are rare in practice but if imposed they must be reasonable. The use of the common property is governed by the principle that all apartment owners are allowed to use it in proportion to their co-ownership shares. Any excessive use, use for specific goals or even exclusive use of a part of the common property part is not allowed except with the consent of all the other apartment owners. The required majorities for such consent depend on the nature of the use. The extension of an apartment is governed by the Property Code and the Law on Housing, which require an amendment of the deed of establishment with the consent of all the owners and registration in the Land Register.485

Metalegal formants

In an apartment ownership scheme, a large number of people are living in close proximity to one another. Consequently, certain kinds of use, activity or the keeping of animals in any one apartment may readily cause a nuisance or annoyance to the other owners or occupiers of the other apartments in the same building. It is therefore only reasonable to impose certain restrictions on the private use of individual units, provided that they are neither unreasonable nor discriminatory in nature.

Even though common parts are intended for common use, individual apartment owners might also have a legitimate interest in some kind of individual use, for example, of common parts that are redundant.486 Individual use is possible if the consent of owners holding the required percentage of co-ownership shares is obtained.

South Africa

Operative rules

This case deals with the perception of apartment owners that they have the same rights of use and enjoyment of their apartments as they

485See also Court of Appeal Koper ((Visˇje sodisˇče), I Cp 1355/2005, 13 March 2007.

486For example, a common laundry in a building built in 1960, which has not been in use for many years, because every apartment has a washing machine; parts of the basement or of the attic and so on.

would have over a single house on a separate parcel of land. This perception is false because of the physical interdependence of apartments and the intensified community in which sectional owners live.

Although unit owners have the right to exclude others from entering their property, the Sectional Titles Act obliges Amos to allow representatives of the management body on reasonable notice (except in an emergency in which case notice is not required) to enter the apartment to undertake necessary repairs or to inspect whether the rules of the scheme are obeyed (s. 44(1)(a)).487 Notices can only be attached to parts of the common property with the written consent of the trustees (management board) (Annexure 9 rule 6).488

Benny would not be able to allow his wife to conduct her profession as a medical doctor in the apartment, except with the written consent of all the owners, because this is contrary to the use of the apartment shown on the sectional plan (s. 44(1)(g)). If any refusal of consent is unfairly prejudicial, unjust or inequitable, the owner may, within six weeks after such a refusal, apply to the court of first instance to have the refusal overturned (s. 44(2)). The courts consider such a refusal unreasonable only in exceptional circumstances.489 The nameplate may again not be placed on the outside wall without the written consent of the trustees (Ann. 9 rule 6).

There are several provisions preventing Benny from allowing his daughter to carry on prostitution in the apartment. Apart from the fact that it might cause a nuisance (s. 44(1)(c), the model by-laws do not allow Benny to use the apartment for any purpose injurious to the reputation of the building, or to facilitate the contravention of any law (in this case the law against prostitution: Annexure 8 rule 68(1)(ii)). Apart from the fact that under the by-laws washing may only be hung on the balcony with the written permission of the trustees (Ann. 9 rule 8); the hanging of washing may in contravention of the by-laws be injurious to the reputation of the building (Annexure 8 rule 68(1)(i));

487This obligation is also based on s. 28(2)(b), which allows representatives of the body corporate (management body) to monitor the reciprocal servitude of passage of water, sewerage, gas, electricity and other kinds of services through all apartments. See Van der Merwe, Sectional Titles, pp. 8–12 – 8–14.

488Van der Merwe, Sectional Titles, p. 8–7.

489Compare Cuje`-Jacoby & another v Kaschub & another 2007 3 SA 345 (C) and Bonthuys & others v Scheepers CA 303/2006 [2007] ZAECHEC (17 September 2007); Van der Merwe, ‘Refusal to Consent to the Change of Use of a Sectional Title Unit’ (2008), pp. 697 ff.; Van der Merwe, Sectional Titles, pp. 8–10 – 8–12.

regard to parts of the common property if duly registered on the sectional plan or contained in the rules (by-laws) of the scheme. Allowing his sons to play football in the corridors of the condominium would be abnormal and thus unreasonable use of the corridors.

The members of sectional title schemes that are not served by a central satellite dish could adopt a special management rule that owners are only allowed to erect their own antennas with the written consent of the trustees. In this manner, trustees could control the nature, design and the manner of installation of the satellite dish, which Anusha would like to install.

There are no provisions in the Act or the model rules that prevent Herman from renting out his apartment to a person with a drinking problem.

Ian would not be allowed to excavate a cellar beneath his ground floor apartment because his apartment extends only to the median line of the floor (s. 5(3)(e) and (4)), and the land in the scheme always forms part of the common property. His excavation would also be impermissible on the grounds that it infringes upon the implied servitude of subjacent support owed to the apartments above (s. 28(1)(a) and (2)(a)) and affects the stability of the building (Annexure 8 rule 68(1)(iii)). Ian would, however, be allowed to extend his section downwards if authorised by a special resolution (75 per cent in value and number) of the members of the management body (s. 24).

Descriptive formants

The above answers are mainly derived from the provisions of the Act, the model rules (by-laws) for South African schemes and the case law on these matters.

Metalegal formants

The policy behind the framework constituted by provisions of the Act and the model rules was the idea that the content of ownership of an apartment must, to a great 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 apartment owners share an intensified community. The impact of these characteristics is that apartment ownership must invariably be limited by restrictions aimed at the protection of the building and its apartments, and the flourishing of the sectional title

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community. Of course, this is not to say that an apartment owner does not acquire genuine ownership of the apartment itself.493

Spain

Operative rules

Although Amos, as owner of the flat, has the right to exclude others from entering his property, the Law on Horizontal Property obliges him to allow contractors to enter his apartment if it is necessary to carry out repairs on the common facilities (art 9.1.(d)). There are no specific provisions with regard to attaching notices on the outside door.

However, if we consider that the Law allows changes to common installations or facilities insofar as they do not affect the security, structure or external appearance of the building (art 7.1), and consider that the Law obliges owners to take care of the facilities and other common elements, perhaps one ought to conclude that he is not allowed to attach the notice without the consent of the general meeting (art. 9.1.(a)).

Benny could only allow his wife to conduct her profession as a medical doctor in the apartment if such use is permitted in the bylaws of the scheme (Law on Horizontal Property art. 5 par. 3). If the bylaws are silent, a unanimous decision by the owners’ community is required to change the by-laws (art. 17.6). No nameplate may be placed on the outside wall without the approval of a simple majority resolution of the owners’ community (art. 17.7).

Benny cannot allow his daughter to carry on prostitution in the apartment because the Law on Horizontal Property forbids the owners or occupiers of units to carry on in the unit or the building itself any activities forbidden by the by-laws, harmful to the condominium and contravening the general principles of the law of nuisance in that they are annoying, unhealthy, harmful, dangerous or illegal (art. 7.2).494 A rule forbidding the hanging out of washing in the balcony is frequently inserted into the house rules (reglamento de re´gimen interior) (art. 6) on the ground that it affects the external appearance of the

493Ibid., pp. 8–18 – 8–20.

494See also the Regulation on nuisance, harmful, unhealthy and dangerous activities of 1961, applicable to all residents of units.

building. Such a rule may be changed by a simple majority resolution of the owners’ community (art. 17.7).

The Spanish Law on Horizontal Property contains no provisions on the keeping of pets or other animals. This matter is normally dealt with in the by-laws (and not in the house rules, because any rule about keeping pets would affect the rights of the owners inside their units). In many situations the keeping of small domestic pets would be allowed, as well as the keeping of a guide dog. Therefore, Doris should be able to keep the dogs and the hamsters. However, chickens are not considered pets and so keeping them would usually be forbidden. This view seems all the more likely when one considers the provisions of art. 7.2 regarding dangerous, harmful or illegal activities.495

Ellen’s enclosing her balcony with a brick wall to create an extra bedroom is impermissible because it changes the external appearance of the building. The Law on Horizontal Property only allows an owner to modify his or her unit to the extent that it does not affect the security, structure or external appearance of the building (art. 7.1). Certain decisions of the Spanish High Court, and several decisions of Courts of Appeal, conclude that an owner cannot enclose a balcony to create an additional room.496 However, recently, the Spanish High Court has allowed the enclosing of balconies to create new rooms if other owners had previously done so and the community of owners had not taken any steps to have the walls demolished.497 The High Court also allowed the enclosure of terraces on the top floor of the building as long as the stability and safety of the building are not affected.498

495Several decisions of the Courts of Appeal held that the keeping of certain kinds of animals inside an apartment causes a nuisance, such as keeping a donkey (Court of Appeal of Zaragoza, 18 February 1992 (AC 1992\192)), twelve cats (Court of Appeal of Barcelona, 3 December 1996 (AC 1996\2418)), dogs barking incessantly (Court of Appeal of Las Palmas, 12 December 2008 (JUR 2009\116066). By contrast the keeping of just one small dog has been held not to amount to a nuisance (Court of Appeal of Asturias, 21 July 1999 (AC 1999\1555)).

496Spanish High Court, 7 July 2010 (RJ 2010\5711); Court of Appeal of Alicante,

16 September 2011 (JUR 2011\25518), and Court of Appeal of Santa Cruz de Tenerife, 12 March 2011 (JUR 2011\12806).

497Spanish High Court, 26 November 2010 (RJ 2011\1314), and of 3 March 2010 (RJ 2010 \1450).

498Spanish High Court, 5 November 2008 (RJ 2008\5897).

Descriptive formants

The answers to the cases are derived from the provisions of the Spanish Law on Horizontal Property, and from Spanish case law.

Metalegal formants

The basic idea that lies behind the above responses is that owners living in a condominium scheme experience many restrictions that are not encountered by residents of individual houses. While the owner does have ownership of the unit, limits are imposed to facilitate a reasonable level of harmonious co-existence within the scheme.

Sweden

Operative rules

Amos: A member of a real estate cooperative (bostadsra¨tt) is, of course, allowed to lock himself inside his apartment to protect his privacy. If, however, a member’s seclusion turns into an unhealthy or psychotic state of mind and that leads to neglect of the apartment or the common property then the association may interfere. The Law on Real Estate Cooperatives stipulates that a member is not allowed to use his apartment in a manner that would disrupt his neighbours to an extent that it is injurious to their health or impairs their quality of life. Furthermore, the member should otherwise in his use of the apartment observe all that is required to preserve the cleanliness, order and good condition within or outside the apartment (Ch. 7 s. 9). The Law also states that if a member neglects to maintain his apartment to such an extent that his neighbours are compromised or at risk of suffering extensive damage, representatives of the cooperative scheme have the right to enter the apartment to supervise or undertake the repairs or renovation necessitated by the neglect of the member (Ch. 7 s. 13 read with s. 12 a).

The notice on the door is in principle permissible as long as the wording of the notice does not cause offence (Ch. 7 s. 9). In general, a particular real estate cooperative association is permitted to stipulate its own rules, for instance, about decorations and signs on apartment doors.

Benny’s wife: A member of a real estate cooperative who wants to conduct a profession in one part of his apartment must obtain permission from the management body of the association (bostadsra¨ttsfo¨rening).

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Although it is possible to use an apartment both for residential and professional purposes, it is not permissible to use an apartment contrary to the purpose agreed upon (Ch. 7 s. 6). This being so, Benny and his wife need permission from the management body to conduct her medical practice in the cooperative and to place her nameplate on the outside wall. In addition, she would need permission from the local authority concerned to practice from the apartment.

The question as to whether or not Benny’s daughter is allowed to run a business hinges on whether or not she has permission to do so, as was the case with Benny’s wife. However, she will under no circumstances obtain permission to run a brothel. Under the Law on Real Estate Cooperatives the management body is permitted to refuse permission under such circumstances and the apartment can be forfeited if a brothel is run in the apartment (Ch. 7 s. 18 par. 8). Regarding the laundry, everybody is allowed to hang clothes, and so on, to dry on the balcony.

Doris: Usually a member of a real estate cooperative is permitted to keep animals in the apartment. As this supposedly only embraces ‘regular pets’, there are no restrictions against keeping dogs and hamsters in an apartment, provided there is not an unreasonable number of them and they do not cause a nuisance (Ch. 7 s. 9). The issue with the chickens is a little more complicated. It is not expressly prohibited in law, but as the member of a real estate cooperative association is obliged not to disturb those around her; to maintain soundness, healthiness and order in her apartment and the surroundings; and to keep the apartment in good condition (Ch. 7 ss. 6 and 9), keeping chickens in an apartment would probably be out of the question on the ground of contravention of the obligations just stated. In this context, real estate cooperative associations may adopt rules with the aim of providing homes with a suitable environment for people who suffer from allergies.

Ellen: According to Swedish law, a member of a real estate cooperative does not have the right to enclose a balcony to her apartment, nor to extend the apartment in any other way (Ch. 7 s. 7). It is, however, possible to ask for permission to do so. An extension of an apartment will affect the quota.

Frank: A member of a real estate cooperative does not have the right to occupy parts of the garden for his own purposes and obtain an exclusive right to that spot. It does not matter if the piece of land corresponds with his quota. He or she ought to ask the management