Экзамен зачет учебный год 2023 / European Condominium Law

Metalegal formants

French law applies the same rules to troublemakers in condominium schemes as it applies to troublemakers in rental buildings or in suburbs of a city or town. These rules regarding anti-social behaviour have been developed in French case law and apply in any case where the troublemaker oversteps the threshold of behaviour that cannot be expected to be tolerated by any reasonable neighbouring owner. Any affected person may go to court claiming an interdict to stop the disturbing behaviour or can claim damages for any loss or injury suffered. Thus, such misbehaviour in a condominium is not sanctioned by any express provisions in the condominium legislation but by the principles and remedies flowing from the general principles concerning anti-social behaviour or bad neighbourliness as developed by case law. French law refuses to allow the exclusion of an owner from the condominium on the ground that he or she is disturbing the harmony of the condominium because of the inviolability of the ownership rights of every person and on the ground that the legislator has conferred equal rights on all apartment owners in a condominium.

Germany

Operative rules

The Law on Apartment Ownership entitles the owners’ association to force an owner to sell his unit if his continued presence in the condominium is intolerable (§ 18).601 Generally, this power will only be exercised if the offender, despite repeated warnings, continues to behave unacceptably. Furthermore, a sale of his apartment requires an absolute majority, namely, a resolution supported by half of all the owners and not just those present at the general meeting.

Enforcing a claim against an obnoxious owner to sell the unit is in practice a somewhat cumbersome procedure. First, a resolution must be taken to issue a warning to the owner. Subsequently, a resolution to enforce the claim in court is necessary. It is only after the court has decided to uphold the decision of the management corporation that the sale can be actually effected (§ 19).

601The sale of the unit concerned can also be demanded from an owner who is in arrears with his assessments by an amount exceeding 3 per cent of the taxable value of his unit for a period of more than three months.

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Descriptive formants

The power to exclude an obnoxious owner from the apartment ownership community is regulated in the Law on Apartment Ownership §§ 18 and 19.

Metalegal formants

The question as to whether or not the behaviour of an owner is sufficient to justify expulsion from the scheme depends on the specific circumstances of each case. As it is such a drastic measure, an expulsion can only be the ultima ratio of all other possible measures.602

Greece

Xavier’s behaviour disturbs the other owners’ harmonious copossession as well as their shared co-ownership of the common areas in the scheme. Remedies for the protection of possession (CC art. 994) will not be available against Xavier to stop his activities603 because he does not exclude the other owners totally from exercising their rights of co-possession of the common property (CC art. 994b).604 However, since their right of ownership (CC arts. 1094 ff. and 1108) has been disturbed, the other owners may apply to court for an interdict or injunction (actio negatoria) to put a stop to the recurrent disturbance and to prevent any future disturbance (CC article 1108).605

The Greek Code of Civil Procedure provides for a special interim procedure whereby the owners can request the court to subject the dispute to mediation in order to arrive at a provisional settlement of the dispute and to stop Xavier’s obnoxious activities (CCProc. arts. 731-732). Furthermore, if Xavier’s behaviour constitutes an insult to the personality of particular owners they would be able to claim delictual damages from him under CC arts. 57 and 59. Finally, it is possible that Xavier’s insults amount to public insult or a crime against personal freedom punishable under the Greek Penal Code (arts. 361 and 333 respectively).

The question at issue may be solved on the basis of the internal relationship among the co-owners. In such a case the relevant

602 See BGH NJW 2007, 1353; Jennißen and Heinemann, WEG Kommentar, § 18 no. 14.

605Areios Pagos 1450/1983 (NoV 32, 1201); Areios Pagos 881/1984 (NoV 33, 621); Areios Pagos 1140/1985 (NoV 34, 1048).

provision regarding the use and the management of the property co-owned in undivided shares will be applicable (CC arts. 788-790).

Descriptive formants

The above answer is mainly derived from the provisions of the CC concerning the protection of ownership (art. 1108) and the protection of personality rights (arts. 57 and 59). The provisions of Greek CCProc. on the provisional settlement of disputes through interim proceedings (art. 731-732), and certain provisions of the Greek Penal Code (arts. 333 and 361) are also relevant.

Metalegal formants

Relying on the tort of nuisance to obtain an interdict from the court to stop Xavier’s obnoxious behaviour is time-consuming and expensive and would have an adverse effect on the peacefulness of the scheme. The problem could perhaps be solved by a provision in a by-law imposing a fine on unacceptable behaviour of owners. It could also be investigated whether alternative dispute resolution measures should not be resorted to first before approaching the court for an interdict.

Ireland

Operative rules

Xavier’s long lease may contain an express covenant by him not to use the premises in such a way as to cause a nuisance or annoyance to neighbouring lessees.606 The Irish courts might construe this obligation along similar lines to the English courts, given that its purpose is to protect the peace and quiet of the scheme. If so, this obligation will be breached if Xavier’s conduct is an annoyance – such that it ‘troubles the mind and pleasure . . . of the ordinary and sensible’ unit holder.607 His conduct also appears to be such that no reasonable neighbouring unit holders should be expected to tolerate it.608

The Multi-Unit Developments Act 2011 opens up the prospect of the adoption of a house rule against uncivilised behaviour outlawing threatening and aggressive conduct when outside the unit and/or

606Wylie, Landlord and Tenant, p. 379.

607Cf Tod-Heatly v Benham (1889) 40 Ch D 80 at 98 (Bowen LJ).

608Cf National Schizophrenia Fellowship v Ribble Estates SA [1994] 1 EGLR 181 pp. 183J – 184A.

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requiring that owners must appear in the common areas and balconies suitably dressed. Such rules seem to meet the requirement of section 23(2)(a) of the Act, that is, of being consistent with the covenants of the lease, as they serve the promotion of harmony between unit holders.

Descriptive formants

The general law of landlord and tenant and Multi-Unit Developments Act 2011.

Metalegal formants

The OMC could entrust enforcement of house rules to their manager. He might attempt mediation with Xavier before taking the matter to court. If the unit leases contain a covenant by the lessee not to commit a nuisance or annoyance on the premises, a breach of such a covenant by Xavier as a result of his uncivilised conduct could, if all else fails, be enforced by forfeiture, which will, if no relief is granted, terminate Xavier’s lease so that he will lose the whole of its capital value. However, undertakings as to future conduct could avert this sanction. In any case, OMCs would probably have to make use of the statutory disputes resolution procedures laid down in the Multi-Unit Developments Act 2011 before resorting to forfeiture.

Italy

Operative rules

This particular scenario is more likely to be dealt with by the provisions on nuisance and abuse of property rights609 rather than any of the provisions on condominiums in the Civil Code. Depending on the gravity of Xavier’s behaviour, his activities could qualify as crimes of indecent public behaviour, insult, libel, domestic violence or stalking (Criminal Code arts. 529, 594, 595, 610 and 612bis).

609CC 883 which does not allow activities that cause harm or a nuisance to third parties, also applies in the condominium sphere: Girino, ‘Il condominio’, p. 391; Dogliotti, ‘I diritti reali’, pp. 243–4.

Netherlands

Operative rules

The Model By-laws of 2006 provide that no owner or occupier may cause a nuisance to other owners or occupiers (art. 2 par. 2). Individual owners or occupiers may therefore institute an action in tort against Xavier for an interdict to stop his verbal abuse and threats. Such an interdict can be enforced by a penalty imposed by court order. The verbal abuse may in some cases also qualify as the crimes of public defamation or public nuisance (Criminal Code arts. 262 and 424 respectively).

CC article 5:112 no. 4 provides that the by-laws may contain provisions regarding the use of individual units. It may include a stipulation that the owners’ association has the power to exclude the apartment owner or occupier from further use of the unit on the ground of various kinds of serious misbehaviour as set out in the by-laws. The exclusion from further use is a standard clause incorporated in the Model By-laws of 2006 (art. 39). Instances of serious misbehaviour may include improper behaviour towards other owners, serious disturbance of the peacefulness of the scheme or repeated violation of the provisions contained in the deed of subdivision. This measure may only be resorted to after various less draconian actions have been attempted. The association must therefore issue warnings and impose fines before embarking on proceedings for the exclusion of the offender (art. 41).

Descriptive formants

The above answers are mainly derived from the provisions of the Dutch CC on condominiums, the Model By-laws of 2006, case law on the interpretation of these provisions and the application of the provisions of the Dutch Criminal Code, as well as case law for a court order based on the torts of defamation and nuisance.610

Metalegal formants

Exclusion of an apartment owner from the use of his or her apartment is a very strong sanction to employ even against an apartment owner

610Cantonal judge (kantonrechter) Tilburg, 18 September 1980, discussed in WPNR 5552, 5570 and 5589 (1981); Court of Appeal (Gerechtshof) Amsterdam, 26 June 1986 (KG 1986, 387); Cantonal judge (kantonrechter) ‘s-Gravenhage, 27 February 1992 (NJ 1992, 760); District Court (Rechtbank) Assen, 24 September 2003 (NJF 2004, 72); Court of Cassation (Hoge Raad), 20 October 2006 (NJ 2007, 3).

Poland

Operative rules

The Polish CC requires that an owner must act within the limits of the law, the values of a civilised community and the socio-economic purpose of the right of ownership (art. 140). In addition, the Law on Unit Ownership imposes certain specific obligations on unit owners; among others, that a unit owner must abide by the house rules and cooperate in the protection of mutual interests (art. 13). Unit owners must further not, by their behaviour, make the use of other units or common parts more burdensome for other unit owners. If an owner flagrantly and persistently violates the house rules, or if he, by virtue of his improper behaviour, makes life intolerable for other owners, the community of owners may resolve to approach the court for an order that the unit be sold by the bailiff in execution proceedings (art. 16). This seems the appropriate sanction to stop Xavier’s obnoxious behaviour. If such an order is made, the offending owner also loses his right to a dwelling guaranteed by the local authority concerned. This provision reflects that the troublemaker will receive money from the sale and so will have the means to find alternative accommodation. Therefore, he should not be benefiting from services that the local authority must provide for persons with more serious problems than those caused by the person’s own obnoxious behaviour.

Descriptive formants

The requirement that a resolution must be adopted and that a request must be made to court for the sale of the unit of the offending owner by public auction ensures that the conduct of the unit owner is objectively and properly assessed. The sale by a bailiff ensures that the unit is sold in a fair manner, and for a consideration that corresponds to the market value of the unit.

Metalegal formants

The community of owners is equipped with the draconian remedy to combat obnoxious behaviour of forcing the offender to sell his unit. There are no less drastic mechanisms available that could be used to address the issue in a non-confrontational manner. That is not to say that the community cannot first resort to written warnings and the like, but these will all amount to informal actions that would probably not impress an obnoxious owner and are unlikely to be very effective.

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Portugal

Operative rules

In Portugal, owners cannot be deprived of their right to reside in the scheme, even in the event of persistent and flagrant contravention of the scheme rules. The only sanction to stop obnoxious behaviour of owners seems to be CC art. 1434, which allows the general meeting to fix penalties for non-compliance with the provisions of the statute, the resolutions of the general meeting and the decisions of the manager. Xavier’s behaviour could arguably be a contravention of CC art. 1422(2)(d), which prohibits owners from carrying on activities that have been banned under the constitution or, later, by a resolution of the meeting of owners that is approved without opposition. To my knowledge, this sanction has not been used in practice.

Descriptive formants

The response is based on the Portuguese reverence for the sanctity of ownership and private property. The Constitution guarantees the right to private property (art. 62).

Metalegal formants

In Portugal, there are no effective means to control obnoxious behaviour in condominium schemes. It is doubtful whether the imposition of penalties on offenders would be efficacious. Constitutional values would, however, tend to prevent such a drastic sanction as exclusion of the offender from the condominium community.

Scotland

Operative rules

This scenario is indeed very similar to those under Case 4. Scots law is, generally speaking, not in a position to deal with such ‘personal’ issues from a private law perspective. There may be suggestions for antisocial behaviours in such a scenario, dealt with by the Antisocial Behaviour etc. (Scotland) Act 2004. But, of course, whether the police or the court and the neighbouring owners will be of the same mind is a completely different matter.

Descriptive and metalegal formants

See the discussion under Case 2. Scots law of the tenement traditionally developed out of practice, or people’s good sense. There are difficult neighbourhoods and there are good neighbourhoods. It is hardly a matter for the law to deal with, as illustrated in the case discussed by Professor Halliday, cited under Case 4. The overall structure never had a top-down strategy intricately engineered in the ivory tower to provide a model for all tenement habitants of Scotland. Arguably, the DMS can do so if it wants to venture into the behavioural side of rules. It may not want to. An ordinary purchaser may well be put off if they see a scheme that regulates what a habitant can wear or say in the common area.

Slovenia

Operative rules

The Property Code provides that if an apartment owner (or any other resident) seriously violates the basic rules of neighbourly co-existence or his obligations under the community by-laws in such a way that living with him in the same condominium becomes unbearable, owners holding over 50 per cent of the co-ownership shares in the scheme may adopt a resolution warning the offender. If the offender thereafter persists in his offensive behaviour, owners holding more than 50 per cent of the co-ownership shares may opt to file a suit for his exclusion and a forced sale of his apartment (art. 123). It is then at the court’s discretion to order Xavier to sell his apartment. If he fails to comply, the apartment will be sold by way of a forced sale (art. 123(3)). This procedure is however not used in practice. There are no other less drastic sanctions except for general sanctions based on nuisance (Property Code arts. 75 and 99 and Code on Obligations art. 133).611

Threatening any person with an assault, is a criminal offence under the Criminal Code art. 135.

Descriptive formants

The above answers are mainly based on certain provisions of the Property Code and the Criminal Code.

611Tratnik and Vrenčur, ‘Pravila medsosedskega sozˇitja med etazˇnimi lastniki (razmerje med izključitveno tozˇbo in imisijami’ (2004), p. 194.

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Metalegal formants

The exclusion of an apartment owner from the condominium, forcing him to sell his apartment is a draconian sanction that can be justified only in extreme cases of nuisance. It was introduced as a remedy in 2003 but has not yet been applied in practice. Apart from the threat to the offender that his apartment will be sold at a much lower price than the true market value of the apartment in a forced sale, the main purpose of this sanction is to restore harmony in the condominium by the expulsion of an owner who refuses to conform to the minimum standards for living in a community with other owners.

South Africa

Operative rules

If the conduct of Xavier amounts to a transgression of a special conduct rule inserted in the rules of the scheme, an owner who persists in breach of a rule, notwithstanding written warning by the management board, is not entitled to vote for ordinary resolutions at a general meeting (Ann. 8 rule 64(b)). As in the case of non-compliance with financial obligations, a persistent offender of conduct rules is further liable for all legal costs incurred by the management body in enforcing compliance with the rules of the scheme (Ann. 8 rule 31(5)).

If Xavier’s behaviour is not covered by a special rule of the scheme, the management body can make use of the Criminal Procedure Act 56 of 1955 (s. 384).612 This section provides that, in cases of bodily threats or flagrant instances of nuisance, a complaint can be made to the magistrate of the district, irrespective of whether the conduct occurred in a public or private place such as in a sectional title scheme. The magistrate may order the offender to appear before him and, after inquiring into the complaint, may order the offender to guarantee an amount not exceeding R2,000 with or without sureties for a period of six months to keep the peace towards the complainant. If the offender fails to give the guarantee, the magistrate may commit him to gaol (prison) for a period not exceeding six months. If the conditions of the guarantee are not observed, the magistrate may declare the guarantee forfeited.613

612This section was not repealed by the Criminal Procedure Act of 1977.

613See Van der Merwe, Sectional Titles, pp. 9–30.