Экзамен зачет учебный год 2023 / European Condominium Law

Descriptive formants

The above rules are mandatory and cannot be deviated from in the by-laws of the scheme.

Metalegal formants

It is often thought that the scheme manager has absolute powers, can run the scheme as if it is his or her own fiefdom and is the dominating organ of every condominium. The reform amendment of 2010 therefore seeks to reduce the powers of the manager by laying down an exhaustive list of functions and reducing the duration of his or her appointment to three years. See Part III.

Catalonia

Operative rules

The above are examples of various types of rules that are treated differently under Catalan law. The CC provides that the internal house rules (reglament de re`gim interior) are the appropriate instrument to regulate the use and enjoyment of the common property and the relationship of the owners inter se in the scheme (art. 553-12). Such house rules must be approved at a general meeting (junta de propietaris) by a majority of the owners in number and share value (CC art. 55325.5 (d)).) Only the owners in the general meeting are entitled to adopt house rules. Neither the professional manager nor the management board consisting of the president, secretary and manager are entitled to adopt any house rules. If we assume that these particular house rules were introduced by the proper organ of the condominium, the three new rules may be challenged by the owners who voted against it, did not attend the general meeting or whose right to vote was suspended illegally (CC art. 553-31). Let us consider their chances of success:

(a)As the aim of house rules is precisely to regulate the use of common elements and services (CC art. 553-12), the prohibition on the use of the swimming pool after midnight amounts to a reasonable limitation on the rights of use and enjoyment of the common property. It can only be challenged if it conflicts with the provisions of the by-laws as adopted for the condominium in question.

(b)Although this rule, prohibiting the presence of dogs without a lead on the common property, also concerns the use and enjoyment of the common property, it could perhaps be challenged on the ground that it

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

amounts to an unreasonable limitation on individual freedom if applicable to every kind of dog in the condominium. A rule against dogs running freely on the common property or causing a nuisance to other owners would thus seem more appropriate. See also Case 4 (c).

(c) A rule against receiving visitors after 10 p.m. would seem to be invalid as it would seem unreasonably to affect the freedom of individuals to use their units as they think fit (CC art. 553-57). On this basis, it therefore conflicts with the fundamental rights of individuals (CC art. 553-31.1). It would be otherwise if the rule prohibits visitors in common rooms of the condominium or limit the times at which these rooms may be used.

Descriptive formants

The answers to the above questions are based on the principles applicable to house rules. The aim of house rules is to regulate the use and enjoyment of the common property in a reasonable manner. Any limitation on the rights of the owners to use and enjoy the common elements must be sufficiently justified and reasonable to be valid, as the fundamental rights of owners are the cornerstones of the legal system. House rules can only be struck down if the limitation is unreasonably strict, discriminates against certain sectors of the condominium or contravenes the provisions of the CC or the by-laws of the scheme.

Metalegal formants

House rules are acceptable if they are based on sound reasoning, for instance, the rule against using the swimming pool after midnight caters for the safety of owners and prevents boisterous frolics in the swimming pool at a time when most residents enjoy their nightly slumber. The rule that dogs must always be on a lead when taken on to the common property guards against dogs becoming a nuisance and littering the common property. On the other hand, this absolute prohibition against dogs running around freely on the common property could, in a particular case, be considered too harsh, especially if the kind of dog is not taken into account. The good-natured little dog in SAP Asturias 21-7-1999, mentioned in Case 4 (c) was not a menace to any resident in the scheme. The rule against receiving visitors after 10 p.m. may be unconstitutional because it may discriminate against a certain group of owners in the condominium, namely, young people. However, the real concern is that such visitors could create a nuisance and this could be sanctioned by the remedies available for stopping the nuisance.

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

and unduly onerous because it requires litigation. Moreover, there is a general apathy towards community involvement and participation in decision-making.

Denmark

Operative rules

The Law on Owner Apartments allows the owners’ association to lay down house rules for the scheme (§ 5). However, as the Act does not expressly specify the appropriate organ within the association it must fall under the competence of the general meeting, which is regarded as the superior organ of management (Model By-laws § 2 par. 1).647 Therefore, any owner who opposes the introduction of a specific house rule by the general meeting must either demand an extraordinary general meeting or address the issue on the next ordinary meeting. If a majority of the owners present at either meeting vote against the proposed new house rules, these will not be enforceable. However, if the dissenting owners only represent a minority at the meeting, any new rules will be simply confirmed and apply until the general meeting reaches another, different decision. If the opposition to the new rules is not brought to the attention of the general meeting this can be treated as tacit acceptance and in such a case the new rules will apply. On this basis they thus apply until a general meeting by simple majority decides otherwise.

The rules under (a) and (b) seem acceptable and fair, but the rule under (c) preventing young persons (including owners or persons belonging to owners’ households) to receive visitors after 10 p.m. may violate a general principle that requires an association to treat all its members equally unless there is a very good reason to treat a member or group differently.648 For this reason the courts may strike down rule (c) on account of its discriminatory nature. There is no explicit requirement that all house rules must be reasonable but the courts will not hesitate to set aside rules that discriminate against certain persons or groups of persons.

647Blok, Ejerlejligheder, p. 357.

648Cf. Eastern High Court decision of 17 January 1985 (Ugeskrift for Retsvaesen 1985, p. 439) ruling against a decision disallowing one particular owner to park his car on the premises.

Descriptive formants

Due to the lack of explicit criteria as to the content of house rules in condominium legislation, analogies from other legal fields (e.g. the law of landlord and tenant and the law related to associations) can be expected to be made use of when arguing cases concerning the content of house rules brought before the courts. Courts are likely to quash house rules that are discriminating, unfair and against social morality (contra bonos mores).

Metalegal formants

The question as to which rules owners’ associations may prescribe for themselves is normally not regulated by law but is left to be decided democratically by the members, who will then have to live by their own rules. However, the twin principles of minority protection and non-acceptance of any rules found to be of a discriminatory nature can be expected to be upheld by the legal authorities, who would, if either element is proved, refuse to enforce any house rules violating one or the other of these aspects.

England

Operative rules

The directors of a commonhold may appoint an agent for any purposes they may decide,649 and hence it is possible that the agent (who may be appointed as scheme manager with wide powers) could draw up house rules. There is nothing to prevent directors of the association from drafting house rules. Any proposed rules will require approval by a scheme meeting ordinary resolution.650 In the case of proposed rules

(a) and (b), these, as local rules affecting the common parts, require a simple majority but the last of the three proposed rules relates to the use of the unit, and so it requires a special majority in the sense already explained, and also proof that the unit holder has consented to the proposed amendment before it is made.651 Following approval, the existing CCS must be amended and two copies of the new CCS must

649Model Articles of Association of Commonhold Association art. 53 of Commonhold (Amendment) Regulations 2009 SI 209 no. 2363.

650The CCS of any scheme can provide a higher threshold.

651Model CCS pars. 4.8.2 and 4.8.7.

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

be forwarded to the Land Registry for registration in place of the current version (CCS par. 4.8.16 and Land Registration Rules art. 13).

Descriptive formants

Model CCS, the Articles of Association of a Commonhold Association as amended and Commonhold (Land Registration) Rules 2004.

Metalegal formants

As a matter of policy, standard form local rules are laid down for schemes.652 The commonhold rules make a concession to unit holder democracy, perhaps to discourage directors from adjusting conduct rules in the interest of a minority of owners. Once new rules have been approved, they bind all unit holders (CLRA 2002 ss. 31(1)(b) and (5)(h)).

In the interests of community harmony, it seems only appropriate for developers to insert some basic rules in the CCS to regulate the use of the unit, which may operate to the detriment of other unit holders or the community as a whole. Thus, official guidance recommends including in a CCS rules as to use of units, such as not carrying on a trade or business in a residential scheme, not causing or permitting a nuisance in the unit, as well as not playing loud music at night.653

Estonia

Operative rules

One of the functions of a scheme manager under the Law on Apartment Ownership is to put into operation measures necessary for the regular administration and maintenance of the scheme, including repair of the common property if necessary (Law on Apartment Ownership § 21(1)(2)). The function of the manager is to execute the owners’ decisions and agreements.654 Therefore, he does not have the authority to adopt the rules listed in this Case, or impose restrictions on the owners regarding the use of the common property. The internal or house rules described in this case can be adopted by the apartment owners (§ 15 (6) 1). Once adopted, the manager implements the resolutions of the apartment owners and monitors compliance with the internal rules (§ 21 (1) 1).

654 Pa¨ rna, Korteriomanike u¨hisus, p. 60.

The Law on Apartment Ownership lays down that the use of individual units and the common property in the scheme may be regulated by agreement of all the owners; matters that concern the normal use of units and the common property may be regulated by majority resolutions; and that any apartment owner may demand that a unit and the common property must be used in accordance with the law, the agreements and the resolutions of the apartment owners and if not so regulated that the units and the common property must be used in the interest of all the apartment owners (§ 12(1)- (3)). Since rules (a) and (b) regulate the normal use of the common property, they may be adopted by a majority resolution of the owners at a general meeting. Rule (c) regulates an abnormal use of certain units discriminating against young people and can thus be adopted only by an agreement among all the owners.655 Once the apartment owners have by resolution or agreement adopted these rules, the manager must implement them and then monitor compliance with the rules (§ 21 (1) 1).

If an apartment association, instead of a manager, is established for the scheme, the above-described situation remains the same.656 So, even if the association has been established, some questions (such as the use of common property) still remain in the hands of apartment owners and follow the rules of the Law on Apartment Ownership.657 Consequently, the apartment owners still have the right to introduce rules (a) and (b) by majority resolution and (c) by agreement among all the owners.

Descriptive formants

The functions and powers of the scheme manager are set out in the Law on Apartment Ownership. He only has the power to put into operation measures necessary for the regular administration and maintenance of the common property. As the rules described in this Case affect the apartment owners’ rights to use their property, they cannot be introduced by the manager but only by the apartment owners, either by means of an agreement or by a majority resolution.

655See Junti et al., Efektiivselt, p. 20.

656Pa¨rna, ‘Development of apartment ownership legislation in Estonia in 1994–2009’ (2009), p. 109.

657Pa¨rna, Korteriomanike u¨hisus, p. 77.

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

Metalegal formants

In practice, most condominium schemes have some sort of house rules regulating the use of apartments and the common property in more detail than the basic provisions of the relevant legislation. These rules are necessary to allow for the day to day management of the scheme by the community of apartment owners or the apartment owners’ association. Usually these rules cover finer details and do not seriously affect the rights of apartment owners.

France

Operative rules

In French law, these types of rules can only be introduced by the general meeting, because it involves a modification of the by-laws of the condominium (re`glement de coproprie´te´). Neither the professional managing agent (syndic) nor a group of co-owners can take these decisions on their own initiative. Adoption of these rules requires a double majority (namely, a majority in number of owners present or represented, representing two-thirds of the votes by quota: Law on Apartment Ownership art. 26(b)).

A by-law which restricts the rights of owners must be in accordance with the intended purpose (destination) of the building (art. 8 line 2). The adoption of the third rule will most likely be challenged because the restriction on receiving visitors after 10 p.m. is imposed only on owners under the age of 25 and not on all owners regardless of their age. As this rule concerns the use of private parts of the building it could possibly also be challenged on the ground of an infringement of privacy as enshrined in the European Convention on Human Rights (art. 8). Both rules (a) and (b) could more easily fit into the intended purpose (destination) of a residential condominium, as they concern common parts of the building and may be necessary to maintain the peace and harmony in the scheme.

Descriptive formants

The Law on Apartment Ownership contains no provisions to allow a professional manager or a group of owners to make ‘house rules’ in order to control and manage the scheme. These rules must be approved by the general meeting and must be in conformity with the intended use and purpose (destination) of the scheme.

Metalegal formants

In practice, most condominiums have their own sets of house rules regulating trivial matters concerning the use of the common property and individual apartments. These rules are necessary in order to prevent conflicts between residents, maintain the common parts of the building in good repair, and maintain the so-called ‘middle class intended use’ of certain condominiums (clauses d’habitation bourgeoise).

Germany

Operative rules

Neither the manager nor the management board (Verwaltungsbeirat, Law on Apartment Ownership § 29) automatically has the authority to introduce house rules. The owners can, however, authorise the manager and/or the management board to promulgate house rules either in the constitutive agreement of the condominium or via a majority resolution.658 Alternatively, the owners themselves can pass house rules by means of a majority resolution.

Descriptive and metalegal formants

Where the manager or the management board or both have been authorised to introduce house rules, the owners still have the power to change the house rules set by the manager or the management board at a general meeting.659

The content of house rules can be challenged in court irrespective of whether they have been promulgated by the manager or the management board660 or directly by the owners themselves. The court will consider whether the house rules comply with the principle of due and proper management.661 This is a question of fact; in the given scenario rule (a) and (b) will – in contrast to rule (c) – most likely withstand this test given that they are justified by the reasonable interests of the owners taken as a whole.

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

Greece

The Law on Ownership of Storeys provides that the condominium must be managed and administered by all the co-owners collectively in the absence of a manager or by by-laws that regulate the situation (art. 4 pars. 1and 2) and that certain administrative acts may be per-

formed by any owner on his own or in collaboration with another owner (arts. 3 par. 2 and 5a).662 In the event that a scheme is managed by a

professional manager, his administrative functions are prescribed by the initial or amended terms of his contract of appointment (art. 4 par. 2). As the representative of the owners’ community, the manager must perform these functions in a way that is consistent with the common interest of all the owners and not based on arbitrary considerations.663 Thus, in the case at issue, the manager would be allowed to include the above rules in the by-laws if this is authorised in his contract of appointment and as long as the rules are in the common interest of the owners. It would certainly appear that the rules in question are in the common interest of the owners in the present scenario.

Descriptive formants

The above answers are based on the provisions of the Law on Ownership of Storeys dealing with the functions and powers of the manager (or management board) and the criteria applicable to the validity of by-laws.

Metalegal formants

In practice most condominium by-laws contain provisions concerning the use of the common property and apartments. But it is difficult and perhaps unnecessary to have rules for every trivial day-to-day issue relating to common facilities and the common property.

Ireland

Operative rules

Multi-unit development schemes may contain house rules. Whether or not the OMC’s Articles of Association664 permit its directors to do so,

664There is no standard form set of OMC Articles of Association. See Law Reform Commission, Report, pp. 71–2.