Экзамен зачет учебный год 2023 / European Condominium Law
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It is also possible for an aggrieved owner, or the management body on behalf of one or more aggrieved owners, to bring an application for an interdict (s 36(4) read with s 36(6)(d)) based on nuisance. A magistrates’ court may grant a prohibitory interdict ordering Xavier to stop his obnoxious behaviour, but its ability to do so is subject to the limits prescribed by section 30(1) of the Magistrates’ Courts Act. If the High Court remains the only realistic forum to which one can resort, an interdict would be of limited value in view of the high legal costs involved and the protracted nature of the judicial process.
Body Corporate Shaftesbury Sectional Titles Scheme v Rippert’s Estae & others614 dealt with the question of whether the court was entitled to issue an order for ejection against owners or occupiers who continually contravened the rules of the scheme. In this case, the respondents were allegedly conducting drug dealing and prostitution in the scheme. The management body applied for a final interdict against the respondents and in the event of non-compliance an order for the temporary ejection until the respondents complied with the interdict. The court pointed to the pressing need in South Africa for owners and management bodies to enforce compliance with the conduct rules of the scheme, and suggested, with reference to the Spanish Horizontal Property Act, that owners should be deprived of their right to reside in the scheme should they continually and deliberately disobey the rules. The court, however, concluded that there was no South African authority to grant an ejection order in the present circumstances and that the management body had not provided a legal basis in the conduct rules for an ejection order (at 7G-I). Despite the failure of the application for a final order followed by an ejection order in the case of non-compliance, the court granted a prohibitory interdict compelling the offenders to abide by the rules. In the event of noncompliance with the interdict, the management body was granted leave to apply for an order holding the offenders in contempt of court and authorising warrants of arrest (at 7I-8B).615
Descriptive formants
The above answers are mainly derived from the provisions of the Sectional Titles Act, the model rules (by-laws) for South African schemes, the case law on the interpretation of these provisions, the
614 2003 5 SA 1 (C). |
615 Van der Merwe, Sectional Titles, pp. 9–33 – 9–34. |
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application of the provisions of the Criminal Procedure Act of 1955 and the application for an interdict under the common law of nuisance.
Metalegal formants
Whereas suspension of the vote and liability for legal costs might assist in the enforcement of minor transgressions of conduct rules, such mechanisms would prove ineffective in correcting major transgressions of the rules as in the present case.
Therefore, resort must be had to the remedies provided in the case of public nuisance under the Criminal Procedure Act. However, the remedy of a private law of nuisance interdict seems inadequate and indeed inappropriate in the sectional title sphere. In most cases the High Court, with its high legal costs and protracted procedures, seems to be the only realistic forum to which to resort. Furthermore, a successful application for an interdict could shatter the harmony in a sectional title scheme permanently.616 If community interests are given preference to individual interests, the only manner to deal with serious transgressions is their exclusion from the scheme as provided for in the Spanish legislation.617
Spain
Operative rules
The Law on Horizontal Property lays down a procedure aimed at avoiding the above-mentioned type of behaviour (art. 7.2). First, it provides that the owner or occupier of a unit cannot carry on in his unit and on the common property any activities that are forbidden by the by-laws and may cause injury or are harmful, unhealthy, illegal or dangerous. The president of the owners’ community (on his own initiative or on the initiative of any owner or occupier) may require Xavier to stop behaving in the prohibited manner, under penalty of filing a lawsuit. If Xavier persists in his bad behaviour, the president, with the authorisation of the owners’ community, will be able to file against him a so-called action of suspension (accio´n de cesacio´n). The judge may then adopt provisional remedies, such as an order forbidding Xavier from continuing to behave unacceptably, failing which he will be
616Van der Merwe, Sectional Titles, p. 9–31.
617Van der Merwe, Sectional Titles, pp. 9–35 – 9–36.
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guilty of the offence of contempt of court. The final judgement order may deprive Xavier of his right to reside in the scheme for a period not longer than three years and in addition to compensate any loss caused to the community. If Xavier was not the owner but merely a tenant, the court may rule that the lease is to be terminated followed by the immediate eviction of the tenant from the apartment in question. Most of the cases resolved by the Spanish High Court or by the Courts of Appeal deal with activities forbidden by the by-laws (as with the use of residential units as if they were holiday apartments),618 or nuisance (such as noises,619 lack of cleanliness,620 barking dogs,621 prostitution622 etc.).
Descriptive formants
The above answers are derived from the amended provisions of the Law on Horizontal Property.
Metalegal formants
The 1999 amendments of the Law on Horizontal Property replaced the previous art. 19. This provision allowed the community of owners to raise an action to deprive the offending owner of the use of the apartment. Instead, the action now seeks to target the nuisance, and only if the owner or occupier persists will they be deprived of the use of the apartment, and, in the case of an offending tenant, the lease will be terminated and immediate eviction will follow (art. 7). Consequently, Spanish legislation has given preference to community interests over individual interests.
Sweden
Operative rules
It is clear from the above discussion that a member of a real estate cooperative (bostadsra¨tt) must act in a considerate manner towards his
618Court of Appeal of Barcelona decision of 8 October 2003, AC 2003\2042 and of 11 March 2010 AC 2010\367.
619Court of Appeal of Madrid of decision of 7 February 2011 AC 2011\824; Court of
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Appeal of Alava decision of 21 April 2010 JUR 2010\396829.
620Court of Appeal of Valencia decision of 26 March 2009, AC 2009\927.
621Court of Appeal of Las Palmas decision of 12 December 2008, JUR 2009\116066.
622Spanish High Court decision of 22 May 1993 (RJ 1993\3724); Spanish High Court decision of 3 February 2001 (JUR 2001\104634).
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neighbours and may not disturb neighbours in a way that is harmful to their health or will adversely affect their living environment (Law on Real Estate Cooperatives Ch. 7 s. 9). He is also obliged to preserve the cleanliness, order and good condition within the apartment, the building and the surroundings that belong to the association. Consequently, Xavier’s behaviour is unacceptable and constitutes a ground on which his share in the real estate cooperative can be forfeited (Ch. 7 s. 18 par. 5). As a general rule the management board should inform him that his behaviour is unacceptable and that he needs to change his ways to avoid his share in the scheme being forfeited (Ch. 7 s. 20). The management board must also inform the social welfare committee about the problem (Ch. 7 ss. 9 and 20). In the case of extremely serious bad behaviour, the management body can order his eviction on very short notice, without first informing the social welfare committee, as long as the committee is informed afterwards (Ch. 7 ss. 9 and 20). The management board needs to involve the enforcement authorities in order to force a person to move (Law on Summary Proceedings of 1990 s. 3).
Descriptive formants
The descriptive formants for the behaviour on the part of a member that justifies forfeiture and the procedure to be followed in an action for forfeiture are contained in the provisions of the Law on Real Estate Cooperatives.
Metalegal formants
At first appearance forfeiture might seem a harsh sanction to use in these circumstances. However, this draconian sanction seems justified because scenarios encountered in this Case are usually caused by some sort of mental disturbance on the part of the offender. It has been suggested that the system works too slowly and that the association should be given the authority to carry out the process of moving the person out of the apartment. Because of the ingrained respect for human rights and the rule of law the system is, however, not likely to be changed.
Case 7
No more rules please!
The professional manager (or the management board) of a residential condominium decides to introduce the following (house) rules:
(a)nobody is allowed to use the common swimming pool after midnight;
(b)dogs are not allowed on the common property without being on a lead;
(c)persons under the age of 25 should not be allowed to receive visitors after 10 p.m.
The owners challenge the authority of the manager (management board) to make such rules as well as the content of these rules.
Comparative observations
Operative rules
The purpose of this Case is to determine whether the manager (or the management board) of a scheme has the authority to introduce on his own authority one or more of the above rules for a particular scheme. One question of interest is whether jurisdictions recognise both bylaws and house rules and, if so, whether the fairly stringent requirements for the adoption of by-laws have been relaxed for the adoption of house rules regulating the finer, more trivial, details of the scheme. The final question concerns the grounds on which the validity of the above rules can be challenged.
Most jurisdictions would allow the manager or management board of a condominium to draw up a set of house rules or propose a single rule to be approved by a resolution at a general meeting. The manager or management board would monitor the enforcement of the rules thereafter.623 The only exceptions are Sweden, Germany, Italy, Greece and
623 Austrian, Catalan, English, Estonian, German and Irish reports.
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Portugal. In Sweden, Germany and Italy, the managing board or the manager respectively is permitted to adopt and enforce house rules for the real estate cooperative or condominium scheme concerned, while in Greece and Portugal the board may authorise a manager to make house rules for the scheme by inserting provisions to this effect in his contract of appointment. There is also a minority view in South Africa that house rules may be adopted by a simple majority by the management board (trustees) to enable them to effectively control and manage the scheme.
Most jurisdictions allow the adoption of rules prohibiting use of the swimming pool after midnight and not allowing pets on the common property without being on a lead by simple majority. On the other hand, a rule prohibiting owners under the age of 25 to receive visitors after 10 p.m. almost invariably requires a larger majority, if permissible at all.624 Many jurisdictions would in fact hold the last rule invalid altogether on the grounds that the rule is discriminatory and does not treat all members of the scheme equally;625 that it does not comply with the principle of due and proper management;626 that it impairs
personal freedoms and privacy;627 that it unconstitutionally discriminates on the basis of age;628 and that it is outside the powers of the
manager or general meeting to control behaviour within apartments.629 There are various sensible reasons as to why the first two rules are regarded as acceptable: they exist to regulate the normal use and enjoyment of the common property;630 they are in line with ordinary management;631 they are basic rules of neighbourly co-existence;632 they help to maintain peace and harmony in the scheme;633 they promote effective operation and maintenance of the development and enhance quiet and peaceful occupation of units;634 they are designed to maintain proper order in the scheme;635 they are practical guidelines for proper care and considerate behaviour;636 they are not unreasonable, arbitrary
or discriminatory637 but, on the contrary, reasonable and fair.638
Only the Netherlands, Slovenia, Spain and Catalonia draw a distinction between by-laws and house rules. The function of house rules in
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Austrian, English and Portuguese reports.
Catalan, Estonian, Danish and South African reports.
Danish, Italian, Dutch, Polish and Slovenian reports.
Dutch and Slovenian reports. |
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Portuguese report. |
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Estonian and Spanish reports. |
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German and Polish reports. |
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Slovenian report. |
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French report. |
634 Irish report. |
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Norwegian report. |
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Catalan, Polish and Spanish reports. |
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Danish and Swedish reports.
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the Netherlands is to control and manage the common property and regulate the use of private units in order to maintain proper order in the scheme. Similarly, the aim of internal house rules in Spain and Catalonia is to regulate everyday activities and the appropriate use of common facilities and common parts of the scheme. All these jurisdictions contain the qualification that house rules may not be in conflict with the by-laws. In fact, house rules are only valid if explicitly authorised in the by-laws of the scheme.
Scotland still maintains a complicated distinction between real burdens under the Tenement Management Scheme (TMS) and rules and regulations under Development Management Scheme (DMS). France and South Africa do not distinguish between by-laws and house rules and set strict requirements for the modification of by-laws. In France, a double majority resolution is required, whereas in South Africa a special resolution is necessary.
Descriptive formants
Descriptive formants include condominium legislation on resolutions and general criteria relating to the content of by-laws and house rules. This is supplemented by the model by-laws, or the articles of association in jurisdictions managed by an association. Analogous landlord and tenant laws and housing cooperative legislation are also relevant. Case law on the interpretation of the above further provides an insight into these rules.
Metalegal formants
Most reports recognise that there is a need for house rules or at least the insertion of minor rules in the model by-laws to regulate the day to day affairs of the condominium more effectively. These rules can be easily amended, and are recognised as a valuable instrument for enforcing the proper use of the common property, regulating behaviour within apartments and preventing disputes between owners on trivial matters. Thus the rule prohibiting swimming after midnight promotes safety and prevents late night disturbances that may affect sweet slumber; the rule stating that dogs must be kept on leads is again designed to prevent nuisance and to prompt owners to clean up after their pets.639 However, the Italian reporter observes that the peculiar
639 Catalan report.
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nature of a particular condominium (for example a scheme for elderly people) or its location (for instance in a tourist resort or residential area) could lead to the court justifiably reaching a different conclusion with regard to rules (a) or (c). In a condominium located in a seaside resort, a schedule or roster governing the use of a swimming pool in the summer may prove unreasonable; in a condominium inhabited mostly by elderly residents, the court may take a less tolerant view of loud noise coming from an apartment after 10 p.m. despite the owner’s young age and his or her (abstractly lawful) need for a social life.
In a concession to democracy, house rules can generally be imposed by managers or a management board, only if authorised by at least a majority resolution of the owners in general meeting.640 Once approved, the owners and other residents must live by the rules that have been laid down. The Polish report recommends amendment of the legislation and/or by-laws to clearly specify the object and scope of house rules to solve uncertainties in this regard. Simplification of the adoption of house rules and a general recognition that by-laws and house rules form an important and tangible part of the principles on which owners’ communities operate is crucial for the successful management of condominium schemes.
The Croatian reporters observe that while house rules are often posted on corridor walls and ostensibly create the impression of a regulated community they are rarely observed or invoked. The system of enforcing such rules in Croatia is complex and unduly onerous as it requires litigation. Moreover, there is a general apathy towards community involvement and participation in decision-making.
Austria
Operative Rules
Rules of use and conduct can be established to facilitate the smooth management of the scheme. This can be done in the form of ‘house rules’ (Hausordnung, Law on Apartment Ownership, § 28 par. 1 no. 7), which are often already included in the agreement to enter into an apartment ownership regime (Wohnungseigentumsvertrag). Generally, the house rules of the scheme contain provisions regarding the use of the common property by the unit owners.641 Provisions restricting the
640 Croatian, English and Scottish reports. |
641 RIS-Justiz RS 0013679. |
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use of the swimming pool to certain hours of the day or obliging owners to keep pets on a lead are permissible in this regard.
A rule preventing visitors after 10 p.m. would not be permissible under Austrian Law on Apartment Ownership, because it affects the use of the section itself. An apartment owner enjoys the exclusive right of disposal in relation to his apartment, and thus cannot generally be restricted by the management body. This holds true so long as the use of the unit falls within the scope of its intended use dedication and does not give rise to any form of nuisance. Hence, to the extent that they affect conduct within one’s own apartment, the rules of the scheme can only contain provisions aimed at preventing such nuisance from occurring. A typical example in this regard would be a rule against loud music around noon or late at night.
A sectional owner whose legitimate interests are violated by certain provisions of the scheme’s rules or who cannot reasonably be demanded to bear the burden of the rules concerned, can apply to court to have the provisions invalidated (§ 30 par. 1 no. 8). On the other hand, compliance with the house rules can only be enforced by filing a lawsuit for an interdict (CC §§ 364 and 523) or for exclusion from the community (§ 36).642
The adoption and alteration of house rules fall within the scope of the ordinary management of a scheme and can be accomplished
by the manager or by way of a resolution carried by a simple majority (§ 28 par. 1 no.7).643
Descriptive formants
The Law on Apartment Ownership places the manager in charge of the management of the scheme (§ 20). He can take measures falling within the ordinary management of the scheme (§ 28) without the need for a resolution of the general meeting. This contrasts with measures of extraordinary management (§ 29), which fall outside the competence of the manager. Many legal commentators consider the adoption of house rules by the manager to be permissible to the given extent.644 Furthermore, a memorandum accompanying the enactment of the Law on Apartment Ownership of 2002 expressed the view that the adoption and alteration of house rules should fall within the competence of the manager. Nevertheless, at the time of writing there is no recent
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RIS-Justiz RS 0118800. |
643 RIS-Justiz RS 0111845. |
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Lo¨ cker, Osterreichisches Wohnrecht, § 28 WEG no. 88. |
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case law on the issue. As mentioned above, house rules are mostly contained in the agreement to enter into an apartment ownership regime.
House rules (§ 28 par. 1 no. 7) differ from agreements regarding the use of the common property (Benu¨tzungsvereinbarung, § 17). While house rules regulate the general conditions of the use of the common property, management agreements regulate who is entitled to use certain parts of the common property.645
Belgium
Operative rules
The condominium provisions in the CC contain a list of the statutory powers conferred on the manager, which enumerates the basic functions of a manager (art. 577-8 § 4 nos. 3-18). These functions can be extended in the by-laws of the scheme (reglement van mede-eigendom/ re`glement de coproprie´te´). The owners’ association is also competent to adopt house rules (“reglement van interne orde/re`glement d’ordre inte´rieur”) (art. 577-10 § 2).646 House rules are not mandatory; rather it is entirely up to the general meeting to decide on house rules.
In any case, the general meeting is well-equipped to deal with any acts on the part of the manager. The manager is obliged to organise a general meeting when one or more co-owners that (cumulatively) hold at least one-fifth of the shares in the common parts so request (art. 577-6 § 2, par. 2). In case the manager does not take action, one of the co-owners who signed the request may organise a meeting himself (art. 577-6 § 2).
In a general meeting, the owners’ association can take any kind of decision related to the condominium. It could, for example, decide to change the house rules provided a simple majority was achieved (art. 577-6 § 8). The general meeting could appoint a provisional manager for a specific period of time and could assign that manager a specific goal. The most drastic option available to the association would be to fire the manager (art. 577-8 §6 C.C.). However, this requires some justification – generally that the manager has not complied with his contractual obligations or that a contractual termination provision has been triggered.
645Ibid., § 28 WEG no. 89.
646Timmermans, ‘Handhaving van het reglement van orde, geen eenvoudige klus’ (2007), p. 4.