Экзамен зачет учебный год 2023 / European Condominium Law
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the longest list, including threats of physical violence, coercion, public slander and indecent exposure to underage or mentally handicapped persons. The Italian reporter observes that depending on the gravity of Xavier’s behaviour his activities could qualify as crimes of indecent public behaviour, insult, libel, domestic violence or stalking. Besides a suit based on nuisance, a claim based on insult to personality may also be filed in appropriate circumstances.
Descriptive formants
The descriptive formants for initial recourse to alternative dispute resolution procedures and most of the minor sanctions against offensive behaviour are contained in the by-laws of condominiums. Case law on the general principles and remedies of the law of nuisance form the basis for injunctive relief or a claim for damages. The more severe sanctions for serious misbehaviour are mostly contained in the relevant provisions of domestic condominium legislation and in case law on the interpretation of these provisions. The crimes for which Xavier may be prosecuted are found in the Criminal Codes of the various jurisdictions.
Metalegal formants
Most reporters seem to accept that amicable persuasion and alternative dispute resolution procedures are more appropriate for the enforcement of orderly behaviour in a condominium than for the enforcement of financial obligations. They do, however, agree that minor sanctions such as fines and suspension of voting rights produce only limited success. Actions for injunctive relief based on the tort of nuisance are more effective, mainly because a non-compliant offender could be arraigned for contempt of court. However, because these suits are time-consuming and costly and are often too blunt to restore harmony in the scheme, the majority of the jurisdictions represented opt for the inclusion of the more radical sanction of exclusion from the condominium (or forfeiture of the lease or share in a real cooperative). Certain jurisdictions entertain something of a compromise by making provision for the suspension of the offender’s possession of his unit for up to three years. Most reporters indicate that court actions seeking exclusion of owners from the scheme are extremely rare in practice.
Certain jurisdictions view exclusion or suspension as too draconian because of its radical interference with the personal life and financial
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investment of the offender. This school of thought views these sanctions as an unwarranted infringement of the sanctity and inviolability of ownership.588 Nevertheless, jurisdictions that have adopted these harsh measures require strict proof of extremely offensive behaviour before the court allows such sanctions to be implemented, and so there are checks in place to prevent abuse of power by the management body. Some reporters point out that though these sanctions are seldom sought in practice, their deterrent value is inestimable. The Dutch reporter warns that the procedure for reaching a decision to exclude an offender is very elaborate and that mistakes are easily made. The real issue is in how far jurisdictions will allow community interests to infringe upon the individual freedom of owners and their right to pursue individual preferences.
Austria
Operative Rules
In cases such as this, Austrian law provides a number of remedies, which are judicially enforceable. Instances of behaviour constituting a nuisance can be dealt with by way of an interdict action (CC §§ 364 and 523). If the circumstances justify it, it is possible as a last resort to start legal proceedings to exclude an offensive resident from the scheme by virtue of a majority vote (Law on Apartment Ownership § 36).589 Such justification could include the use of a section or parts of the common property in a way that is highly detrimental to the interests of the other sectional owners; acting in a reckless, offensive or otherwise highly inappropriate way that harms the harmonious co-existence of owners within the scheme, or the commission of a criminal offence against another resident. In this regard, the conduct of the owner’s spouse and other cohabitees, as well as persons authorised by him to use an apartment or the common property are treated as equivalent to the conduct of the owner himself (§ 36 par. 3).590 The extreme or excessive
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English and French reports. The Scottish reporter criticises the top-down strategy of |
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providing a behavioural model for all tenements in Scotland and suggests that |
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Scottish purchasers might be put off by prescriptions on what to wear or say on the |
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common areas. |
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See RIS-Justiz RS 0082926. |
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Hausmann T., Osterreichisches Wohnrecht, § 36 WEG no. 50 ff. |
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misbehaviour of a tenant can therefore lead to the owner forfeiting his apartment ownership, if he fails to adopt necessary measures to stop the tenant’s misconduct.591
In addition, any owner who is directly affected by Xavier’s obnoxious behaviour may, if it is not possible to obtain a majority resolution for exclusion of the offender, seek an interdict from the court and if the offender, despite the interdict, persists with his obnoxious behaviour request the court to exclude the offender from the scheme. The order for exclusion of the scheme must be noted in the land register (Law on the Land Register § 61 par. 2). Three months after the order becomes enforceable any owner can apply for the apartment to be sold by public auction in terms of the provisions of the Code on Enforcement of Civil Judgments (§ 36 par. 4). Interestingly, persons who have a family or business connection with the offender, are not allowed to bid at the auction (§ 36 par. 6).
Metalegal formants
Instances of exclusion are rare in practice. In fact, there is not a single reported case where an application for an exclusion order against another resident was successful. The threshold for activity that would justify an exclusion is fairly high, and there are special criteria as regards the admissibility of such claims.592
Belgium
Operative rules
For the measures which can be taken in the case of actionable nuisance caused by one of the owners see Case 4 above. Nuisance can never give rise to eviction, but if the dispute ends up in court the judge can prohibit certain forms of use, as explained above. Certainly, the behaviour complained of in the present case would amount to an actionable nuisance but would not be a sufficient ground for eviction of the owner.
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Only as a last resort: RIS-Justiz RS 0082926. |
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Hausmann T., Osterreichisches Wohnrecht, § 36 WEG nos. 66 ff; Ehrlich, ‘Maßnahmen’, |
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p. 46. |
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Catalonia
Operative rules
Xavier’s behaviour could amount to various crimes or misdemeanours under the Spanish Criminal Code, for example, threats of physical violence (art. 169), coercion (art. 172), public slander (art. 208) or indecent exposure to underage or mentally handicapped persons (art. 185). If prosecuted, Xavier can either be fined or imprisoned. In appropriate cases, a claim for any injuries suffered on account of his conduct may also be instituted.
The Catalan CC does not prescribe any specific action that can be taken against Xavier if his misbehaviour does not amount to a crime or a misdemeanour. The Spanish Constitution protects the fundamental rights of freedom and free expression of the individual (arts. 10 and 17.1). Therefore, any limitation on Xavier’s freedom of expression and free development of personality must be clearly and precisely justified.
Xavier’s behaviour could in principle be challenged by recourse to the abuse of law principle. CC art. 553-42.1 provides that every owner is entitled to use and enjoy the common property in accordance with the provisions of the by-laws and the nature of the common property without causing detriment to any owner. This means that the common elements must be used by owners in accordance with the use of public places, which accordingly entails a general prohibition of exhibitionism, coercion and the abuse of others. CC art 111-7 stipulates that the use of any right should be in accordance with the basic tenets of good faith, and therefore no abuse of law can be tolerated. This doctrine allows the body corporate to proceed against Xavier under CC art 7.2, not only for compensation for damages caused, but also for an injunction against Xavier to stop his obnoxious behaviour and not to repeat it in future. Such an injunction was granted for recurrent noises, fights, shouts and scandalous behaviour in a unit on the basis of CC art. 553-40.593 This behaviour occurred inside a condominium unit, but had it happened on the common property the same solution would have been reached on the basis of CC art. 553-42.1. It is still doubtful whether, apart from the injunction based on the general principle of abuse of law in CC art 111-7, the remedy provided for in CCC art. 553-40.3 could be employed for improper behaviour on the common elements. As we have seen in Case 4, this article provides
593 SAP Barcelona 19-7-2010.
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for the suspension of the use and enjoyment of the unit for up to
two years or, if the offender is a tenant, the termination of the contract of tenancy.594
Descriptive formants
Peaceful coexistence in condominiums can be very complicated. However, any limitation on the freedom of speech, movement, opinion, intimacy, or development of personality of a unit owner either inside his apartment (more protection) or on the common property should be considered carefully. Only if peaceful co-existence within a condominium becomes really impossible as a result of an owner’s obnoxious behaviour (e.g. very loud recurrent noises emanating from an apartment), would the courts provide a remedy, normally in the form of an injunction compelling the behaviour to stop. It is dubious whether the remedy of suspension of the use of a unit under CCC art. 553-40.3 can be applied by analogy to situations of disturbances occurring on the common property.
Metalegal formants
In order to maintain harmonious co-existence in a condominium it is important that there should be strict sanctions to punish disruptive behaviour. The recognition of the sanction of suspension of use and enjoyment of a unit in the event of behaviour that cannot be tolerated in a condominium is important, if only as a deterrent to prevent such behaviour.
Croatia
Operative rules
This is a typical case where expulsion is a potential remedy. The unit owners may petition the court to declare that expulsion is justified, and to force the sale of Xavier’s unit. If Xavier fails to comply with such an order within three months of the final decision, his co-ownership share will be sold by way of public auction (Law on Ownership and other Real Rights art. 98(5)). In the present case, all aspects of Xavier’s behaviour could constitute grounds for exclusion, with the exception
594SAP Pontevedra 27-7-2004 (JUR 2006\23606): suspension of the use of a unit under Spanish law on account of improper behaviour.
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of walking around in underpants, which could hardly be said to be intolerable.
Descriptive formants
As is clear from the analysis above, excluding a unit owner from the community is the only obvious sanction against an offending unit owner. The Law on Ownership and other Real Rights does not provide a softer remedy, which would not involve the court or which would not result in a forced sale, such as mediation or similar non-litigious methods of dispute resolution. This is in some ways surprising, although the rationale is perhaps to encourage unit owners to reach an agreement before initiating court proceedings.
The Law on Ownership and other Real Rights provides two methods for excluding unit owners from a scheme, namely, by majority and by minority resolution. A majority resolution for expulsion can be passed on the following grounds (a) if the unit owner does not fulfil the duties towards the community, and in particular if he fails to pay his dues no later than the adjournment of the hearing at the court of first instance;
(b) if the unit owner uses the unit or common elements to the serious detriment of the interests of other unit owners; (c) if the unit owner makes living conditions intolerable by his ruthless, indecent or generally improper behaviour; and (d) if the unit owner commits a material crime against the property, or a material offence against the morals or bodily integrity of other residents in the scheme.
As noted earlier, actions of a family member of the unit owner who resides with him, or a person using the unit with the owner’s consent, are equated with the actions of the unit owner if he failed to take possible steps to prevent such actions (art. 98(4)).
A minority decision to exclude a unit owner is based on a two-stage procedure. First, the ‘victim’ of the offender’s obnoxious behaviour described above can petition the court to instruct the offender to refrain from such actions in the future. If the offender fails to stop behaving unacceptably, the plaintiff can then, authorised by a minority resolution, petition the court to instruct the defendant to sell his co-ownership share (art. 99).
Metalegal formants
In terms of Croatian societal and cultural norms, it would be unusual for unit owners in a condominium to pursue individual action
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against an oddly behaving occupant. Unit owners would prefer the intervention of a public official, such as law enforcement or community officers. Consequently, court actions seeking exclusion from the community are extremely rare.
Denmark
Operative rules
Xavier´s behaviour is punishable under § 267 of the Criminal Code, which prohibits the violation of a person’s dignity by the use of offensive words or accusations. The most suitable procedure would be to file a complaint with the local police. However, since the owners would, after the conclusion of the criminal case, still have to live in the same community as Xavier, it is more likely that the general meeting would formally condemn the conduct and instruct the management body to issue an express, written warning notice to Xavier. This warning notice must contain a statement that if he continues this unwanted behaviour, the association will ask him to move and may then subsequently expel him from his apartment (Law on Owner Apartments § 8). The warning has to be both accurate and explicit in order to serve as a ground for a subsequent expulsion. This provision would only apply in the present situation if Xavier’s provocative conduct is held by the courts to amount to gross neglect of his duties towards the other owners. The factual outcome would depend on whether anyone is willing to act as a witness and also on the quality of the evidence as to what these witnesses may personally have experienced. Furthermore, it is normally a condition precedent to the making of any expulsion order that the intolerable behaviour complained of has continued after receipt of the warning notice.595
Descriptive formants
Denmark has very little case law on the application of § 8 of the Law on Owner Apartments. Cases on the application of similar provisions in the Law on Landlord and Tenant and the Law on Cooperative Housing Associations may be used by analogy to resolve this type of problem.
595See Grubbe, ‘Eksklusion og tvangssalg af andelsboliger og ejerlejligheder’ (2001), pp. 110–12 and Randers City Court´s decision of 9 April 2008 (Tidsskrift for Boligog Byggeret 2008, p. 366). Here the person accused of intolerable behaviour was not expelled as a result of a very imprecise warning and lack of sufficient proof.
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Metalegal formants
Forcing of an owner to move out of the condominium community is a radical interference with an individual’s personal life and his financial investment in the scheme. It must be balanced against the extent of the nuisance or annoyance the offender has been inflicting on his neighbours. Therefore, § 8 of the Law on Owner Apartments would be expected to be used as a sanction on relatively few occasions, and only where the behaviour is absolutely intolerable, persistent and impossible to put up with any longer.
England
Operative rules
There is no rule outlawing threatening, rowdy or highly uncivilised conduct by a unit holder on the common parts. There may be a local rule to enable a commonhold association to stop any conduct of Xavier that amounts to a nuisance or annoyance to his neighbours596 if the conduct takes place within his unit or on the common parts. The dispute resolution procedures would apply in the latter case.
Descriptive formants
The above is based on Guidance on the Drafting of a CCS.
Metalegal formants
In justification of the current position it was said that standard regulations should not go beyond the minimum for harmonious community living.597 It may be sufficient to rely on the general law of nuisance, as flagrant and persistent nuisances in the common parts and the unit can be addressed by negative injunctive relief. The commonhold rules contain no provision that authorises the community to deprive a trouble-making owner of occupation of their unit for a fixed period following a court order, corresponding to the position in Spain. This reflects the attachment of English law to the principle of the sanctity of freehold ownership.
596 Guidance par. 84. |
597 Commonhold (1987) par. 7.7. |
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Estonia
Operative rules
We have seen that the Law on Apartment Ownership allows apartment owners to decide by a majority vote to force an owner to sell his or her unit in the event of extreme misbehaviour on the part of an owner. Such a drastic step may be taken if an owner has repeatedly violated his or her obligations in such a manner that the other apartment owners consider his continuing membership in the community unacceptable (§ 14). In particular, the offender can be forced to sell and transfer the apartment if he has repeatedly failed to perform his/ her obligations, has delayed payment of his contributions or if his or her activities severely interfere with the use of the scheme by other owners (§ 14(2)). Thus, the apartment owners are in a position to discuss possible steps to be taken against Xavier in the general meeting.
The apartment owners should bear in mind that, in submitting a claim against Xavier, the burden of proof lies on them as claimants, and that they must provide evidence that Xavier’s conduct is serious enough to justify such extreme measures. One or more apartment owners can obviously report Xavier’s conduct to the police. Estonian case law has relied on a police report regarding an owner’s misbehaviour as sufficient evidence to demand that the offender sell his apartment. The Supreme Court, however, cautioned that a demand for sale and transfer of an apartment is not to be regarded as such an urgent matter as to justify departure from the requirement that notice of a general meeting must be given at least one week in advance (§ 18 (4)).598
Possible criminal sanctions would include, for example, a fine or a one-year imprisonment if Xavier is found guilty of assault under the Penal Code § 120. However, it must be stressed that it is the Law on Apartment Ownership (and not the Penal Code) that regulates the relations between the apartment owners.
Descriptive formants
The answers provided above are based on § 14 of the Law on Apartment Ownership, which contains stringent requirements for the enforcement of this drastic sanction. The burden of proof is on the owners to make out a strong case for the application of such a
598Decision of the Civil Chamber of the Supreme Court of 27 November 2007 in matter 3-2-1-110-07 (RT III 2007, 44, 352).
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severe sanction. There is little case law to clarify the circumstances in which this sanction may be used.
Metalegal formants
If one supports the view that ownership is sacred and inviolable, the forced sale and transfer of an apartment even for instances of serious misbehaviour is an exceptional remedy that should only be implemented in extreme cases.
France
Operative rules
It seems that Xavier’s behaviour amounts to a serious nuisance to all other owners in the condominium. The Law on Apartment Ownership contains no specific provision for this, but the management body (syndicat) can decide first to send a written warning to Xavier and second to sue him on the ground of anti-social behaviour (trouble de voisinage).599 French case-law allows this action to anyone that is disturbed by another person’s conduct, beyond that which they regard as the threshold of normal behaviour generally to be tolerated in that sort of neighbourhood.600 The owners can sue Xavier collectively if damage or loss is caused to the condominium scheme as a whole, and any one or more individual owners can bring court proceedings for an interdict to stop the despicable behaviour.
Xavier’s conduct could also be open to certain specific classic criminal sanctions if particular owners suffer public insult or bodily injury because of Xavier’s conduct. Examples of possible crimes are assault and battery. There are, however, no specific crimes that can be committed only inside condominiums.
Descriptive formants
The above answers are mainly derived from case-law on redress for anti-social behaviour in towns and cities and criminal sanctions which could be invoked in such cases.
599See, in general, Courtieu and Courtieu, Les troubles du voisinage (2002).
600Court of Appeal Paris 20 Nov. 1996 (Loyers et coproprie´te´ Mars 1997, no. 91); Cass.
civ. 3e`me 30 June 2004 no. 03-11562 (Bull. civ. III, no. 140; D. 2004, 1134 obs. Giverdon & Capoulade, RTD civ. 2004, 753.