Экзамен зачет учебный год 2023 / European Condominium Law

they may draw up house rules (Multi-Unit Developments Act s. 23). The house rules must relate to the effective operation and maintenance of the development (s. 23(1)) and must enhance the quiet and peaceable occupation of units generally in the development. House rules cannot be valid unless both considered and approved by a meeting of the relevant owners (s. 23(4)). House rules that meet his test bind unit holders, tenants of unit holders and the servants, agents and licensees of both (s. 23(1)).

Rule (a) appears valid, even though some scheme leases may prevent the use of common facilities in such a way as to be an annoyance to other unit holders, given that the house rule and the lease obligations appear to be consistent. The rule advances the quiet and peaceful enjoyment of the property by the unit owners and occupiers (s. 23(2) (a)) and appears to secure a fair and equitable balancing of rights and obligations of occupiers and unit holders (s. 23(3)(b)). No reasonable person would wish to use the swimming pool in the small hours given the blatant lack of consideration of other owners and occupiers in the scheme.

Rule (b) restricts the manner as to how domestic pets are allowed within the scheme and appears to conform to the 2011 Act (s. 23(3). It would be hard to see why the OMC, as owner of the common parts, should not be entitled to limit the use made by unit holders’ dogs of the common parts, given the risks that these animals can roam unless on a lead as well as potentially fouling pathways and gardens.

Rule (c) may go beyond the confines of a lease obligation not to cause a nuisance annoyance or disturbance to neighbouring owners. It might be challenged on the ground that it does not balance fairly and equitably the rights and obligations of occupiers and unit holders (s. 23(3)(b)). A rule banning the playing of loud music by any means of reproduction or on instruments after 22.00 hours might seem a safer alternative.

Descriptive formants

The above is based on the Multi-Unit Developments Act 2011.

Metalegal formants

The Multi-Unit Developments Act 2011 puts in place a new system for the making and amendment of house rules. Proposed house rules must be placed before and approved by an owner’s meeting – if not they are invalid. All unit lessees and their licensees are bound by house rules

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(s. 23(10)). If a house rule has to be enforced by an OMC it can recover its reasonable costs of enforcement from the offender provided the breach is material (s. 23(11)).

Italy

Operative rules

Although such rules are normally contained in by-laws or are adopted by the owners in general meeting, the manager may introduce rules concerning the use of the swimming pool after midnight and the prohibition of allowing dogs on the common property without being on a lead. The rule that persons under the age of 25 should not be allowed to receive visitors after 10 p.m. will not be valid as it represents an unacceptable intrusion into an owner’s freedom to freely use and enjoy his apartment. In any event, it should be borne in mind that it is always open to unit owners to challenge the decisions taken by the manager, either in the general meeting or by way of judicial proceedings (CC art. 1133).

Descriptive formants

The CC contains express provisions on the powers and duties of the professional manager (or the management board (art. 1130).665 The prevailing view in case law and among legal scholars is that these provisions are not mandatory,666 but default provisions in the absence of contrary provisions in the by-laws. Consequently the general meeting or contractual by-laws may confer greater or lesser powers on the manager.667 The professional manager must use due diligence in executing the resolutions of the general meeting

665Although expressly provided for in the condominium statute of 1934 (Royal Decree 54/1934), the CC does not expressly regulate the appointment of a management board. Such power can, however, be provided for in the by-laws. See Raschi, ‘Se possano essere nominati piu` amministratori negli edifici in condominio’ (1962),

p. 708; and Dogliotti, ‘Comunione’, p. 385.

666Cass 08.09.1997, no. 8719; Dogliotti, ‘Comunione’ p. 385 ff.

667While Cass. 03.08.1966, no. 2155; Cass 08.09.1997, no. 8719, Salis, ‘Condominio negli edifici’ (1957), p. 1146 and Dogliotti, ‘Comunione’, p. 385 argue that his powers can both be extended and limited, Trib. Lodi 27.1.2009 no. 37 and Amagliani,

L’amministratore e la rappresentanza degli interessi condominiali (1992), p. 155 states that his powers can solely be extended. Nevertheless, it is undisputed that a limit on the powers of the manager could be tantamount to a tacit dismissal (Cass 03.08.1966, no. 2155).

(CC art. 1130 no. 1)668 as well as in performing his functions. The manager must control the use of the common property and common amenities in accordance with the common interest, with the purpose of maximising their enjoyment by all unit owners (CC art 1130 par 2). The fact that the common interest is considered to be superior to the individual interests669 has significantly extended the powers of the manager beyond the mere control of the common property.670 In the Case concerned we could assume that the administrator may introduce rules (a) and (b) in order to avoid activities that, if permitted, could lead to use and enjoyment of the common property incompatible with the common interest. The validity of rule c) is suspect as it conflicts with the individual liberty of persons in general and the privileges an owner has with regard to his private property. In general, any excessive noise, especially at night, need not be tolerated by neighbours and is actionable in court (CC art 844).671 However, to implement rule (c) as a preventative measure in this respect would be deemed disproportionate.

The measures introduced by the manager are binding on unit owners provided that the rules in question are within his sphere of competence (CC art 1133).672 However, the general meeting need not accept

668For a detailed account as to whether the manager should also execute invalid decisions of the general meeting see Dogliotti, ‘Comunione’, pp. 386–7.

669See, for example, Corona, Contributo alla teoria del condominio negli edifice (1973), p. 140.

670Jurisprudence tends to reduce the competence of the general meeting (Cass 28.1.1986 no. 7023; Cass., 20.01.1976, no. 270) while attributing a variety of competences to the manager. He must guard the operation of common facilities against interference by individual unit owners and perform all acts necessary to keep the enjoyment of the common property and facilities intact for the benefit of all the unit owners (Cass 19.11.1996, no. 10144). However, he may not prohibit the use of the common property absolutely (Cass 23.03.2006, no. 6567) or reserve use of some parts in favour of certain owners (Cass. 11.06. 2009, no. 13626). Girino and Baroli, ‘Condominio negli edifici’, p. 418; Salis, ‘Condominio negli edifici’, p. 1146 accept that the manager may allow the owners of one building to use the facilities in another building or draw up a roster for the use of facilities

671The regular use of the swimming pool after midnight to host parties would obviously be accompanied by noise amounting to an actionable nuisance under CC art. 844. See Cass 06.04.1983 no. 2396; Cass 15.03.1993, no. 3090; Visco and Terzago, Il condominio, pp. 276 ff.

672Recently, Cass 08.04.2008, no. 9148 held that the house manager must perform his duties within the limits set out in his mandate. Activities of the manager that go beyond his functions have been held null and void, and challengeable at any time in the absence of a deadline specified in CC arts 1133 and 1137 (Cass 29.11.1991,

no. 12851).

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unsuitable measures introduced by the manager. Any dissatisfied unit owner may challenge the manager’s decisions either in general meeting or in court. A court action is only competent in cases of noncompliance with the law or with the condominium by-laws, and must be raised within a fairly strict time limit.673 A challenge at the general meeting, however, is not subject to such restrictions or time limits.674

A challenge at the general meeting is more limited in scope compared to a judicial challenge. The general meeting can nullify measures that fall outside the competency of the manager or conflict with the

by-laws of the scheme, but possibly not on grounds of merit or expediency.675 Where a measure is not in breach of the general law or the

by-laws, the remedies of individual owners are restricted to seeking a decision of the general meeting. When approached, the general meeting is presented with three options – the most extreme measure is to revoke the manager’s mandate, failing which the meeting can reject the measure that is subject to challenge, or simply take no action in the event that the challenge is unwarranted.676

Metalegal formants

As in Case 2 above, significant weight is given to the protection of individual liberty and the owners’ exclusive right to use and enjoyment of their apartments. Consequently, the peculiar 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

673CC art. 1137 allows thirty days after the resolution has been adopted or absentee owners have been notified of the resolution.

674See Terzago, Il condominio, p. 383, who argues that the general meeting, as principal, may cancel any initiative of its agent. Contra: Branca, ‘Comunione’, p. 615. CC

art. 1138 par. 4 does not classify art. 1133 as a provision that may never be deviated from in the by-laws.

675See Branca, ‘Comunione’, p. 614; Visco, Le case in condominio (1965), p. 398; Dogliotti, ‘Comunione’, p. 409. Contra Guidi, Il condominio nel nuovo Codice Civile Italiano (1942), p. 265. Some court decisions have confirmed that the appeal to the general meeting can be based on substance and that the manager himself can turn to the general meeting for a resolution confirming his actions in order to overcome the resistance by certain unit owners (Cass 28.08.1975, no. 3024).

676Cass 21.03.1974, no. 804 authorised a direct approach to the court. Cass 14.08.1997, no. 7613 held that if the general meeting is not called or cannot reach a majority, or if the resolution adopted has never been implemented, the condominium will be entitled to apply for non-contentious proceedings by a judge pursuant to CC art. 1105 and confirmed that the resolution in question may only be struck down if the rights of the dissenting owners have been adversely affected or if the resolution has been adopted in contravention of the law or the condominium by-laws.

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; while 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 (abstractly lawful) need for a social life.

The Netherlands

Operative rules

The prohibition on the use of the common swimming pool after midnight and the rule that dogs are not allowed on the common property without being on a lead, are both typical provisions found in the house rules of a scheme. These rules may be adopted by the general meeting with a simple majority. The preparation of house rules for adoption by the general meeting falls squarely within the competence of the owners’ association, which is tasked with the function to control (beheer) and manage the common property excluding the parts designated for use as separate units (CC art. 5:126 no. 1).

Nevertheless, the by-laws may also contain provisions regarding the use of the apartments intended for private use (CC art. 5:112 no. 4). The Dutch High Court (Hoge Raad)677 has ruled on several occasions that it is possible to adopt house rules pertaining to the use of the separate units, provided that the purpose of these rules is to maintain proper order in the scheme (for example the rules pertaining to the hanging out of laundry to dry on the balcony and the keeping of pets), and that the by-laws explicitly authorise the adoption of such rules.

A provision in the house rules prohibiting persons under the age of 25 to receive visitors after 10 p.m. would, however, most certainly be considered outside the powers of the association of owners or the manager(s), because it is an infringement of individual privacy and discrimination on the basis of age, which are prohibited in the Dutch Constitution (art. 1).

677Court of Cassation (Hoge Raad) 8 October 1993, NJ 1993, 778; Court of Cassation (Hoge Raad)10 March 1995, NJ 1996, 594 and Court of Cassation (Hoge Raad)10 March 1995, NJ 1996, 595.

notion is flexible and its content may vary in accordance with changes in commonly held beliefs as to what is proper behaviour.

Metalegal formants

The law must try to strike a balance between, on the one hand, a legitimate need to regulate practical matters where each person’s use of the property has immediate consequences for other users and, on the other hand, individual freedom and a right to pursue individual preferences. Owners should be protected against excessive restrictions even where the restrictions may be introduced by majority decision.

Poland

Operative rules

As discussed above, house rules need not be contained in a written document but may simply function through custom. Currently more and more condominium communities in fact prepare their house rules in a written document. As courts have consistently treated resolutions concerning house rules as matters of ordinary management, a simple majority vote is required for the adoption of a set of house rules or any specific house rule. These rules attempt to regulate various issues, not all of them within the competence of a community of owners. In relation to (a) and (b) it is clear that the rules concern the use of common property, seem to be reasonable and do not unreasonably restrict the rights and entitlements of unit owners to use the common property. Rule (c), however, is debatable, as it impacts on the personal freedom of a unit owner. The community does not have authority to dictate who can visit unit owners, still less at what precise hours of day or night. Similarly, the community cannot prevent unit owners from keeping pets, but can prevent them from walking these pets on common property without a leash.

Descriptive formants

The answer to the above question is contained in the house rules of a particular scheme. As these rules are in many instances based on custom and not contained in a written document, the precise content of house rules is not always clear. Consequently, unit ownership

Scotland

Operative rules

Under TMS, the manager (if there is one) will not be able to impose any new rule, as these rules can only take the form of real burdens. It would take the majority of owners on application to the Lands Tribunal for Scotland in order to vary (including creation) or discharge a community burden. Even if this is done, we go back to the same difficulty as to establishing an interest to enforce against any breach. What ‘material detriment’ can be suffered by any owner if a neighbour swims in the communal swimming pool at 1 a.m. instead of 11 p.m.? If there is none, the breach cannot be enforced against.

Under DMS, the manager is still unable to impose any new rules. The authority can only come from a general meeting of owners. However, here it is important to distinguish between two concepts: a ‘rule’ as opposed to a ‘regulation’. A rule of the DMS is essentially a community real burden had the scheme not been a DMS. It takes many of the characteristics of a real burden, and is dealt with very much in the same manner, by the same body if there is dispute (the Lands Tribunal), and so on. Rules can be varied (including creation of new ones) or discharged by the majority of owners by registering a deed of variation at the Land Register. An unsatisfied minority of owners may apply to the Lands Tribunal for a potential order from the Tribunal to vary or discharge any rule.

The significant differences between a rule and a real burden are, however, that the rule can be enforced by the manager without the troublesome ‘interest to enforce’ and the rule does not need to be ‘praedial’. This breaks free most of the shackles on the institution of real burdens that prevent them from dealing with some aspects of apartment life, which are rather personal, as discussed above in relation to Cases 2, 4 and 5.

A regulation under DMS is a much lesser, more limited concept. A regulation is made by the general meeting (not the manager), regarding ‘the use of recreational facilities’ only. Regulations do not have to be registered by deed at the Land Register and are effective as soon as a copy is delivered or sent to each member. No owner (the minority of owners unhappy presumably) may challenge a regulation, such as in front of the Lands Tribunal.

In terms of the three issues in this scenario, (a) seems to be without question in the scope of a regulation. Arguably (b) can also be part of

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the use of a recreational facility such as the communal garden, and potentially governed by a regulation rather than a rule. The scenario under (c) can only be dealt with by a rule, rather than a regulation.

The difference this distinction will make is that the minority of owners can challenge (c), possibly (b), but not (a), through application to the Lands Tribunal. The Tribunal will look at whether any rule to the effect of (c) is reasonable, taking into account the factors listed in the statutory instrument, discussed under Case 2 above. However, if the minority is unhappy with (a) there is nothing they can do. The majority of owners clearly do not want the swimming pool to be used after midnight as they have made this decision at a general meeting. And that regulation is binding.

Descriptive formants

The Lands Tribunal for Scotland is now reasonably experienced in dealing with applications for the variation or discharge of real burdens and is thus the ideal choice of body to deal with future disputes regarding DMS rules. However, it would be interesting to see how much appreciation the Tribunal would show towards the fact that these rules are not real burdens such as they are accustomed to dealing with. For example, how likely would the Tribunal be willing to accept a rule that ‘dogs must be on a lead’, which appears completely nonpraedial, even trivial, against the background of real burdens.

A possible reason why a regulation is not subject to the same scrutiny as a rule is that it is likely to be more trivial than a rule, so that the Lands Tribunal will have absolutely nothing by which to judge things. Using the example of this scenario, how can the Lands Tribunal possibly decide whether it is reasonable for a swimming pool to be open until 11 p.m., midnight or 1a.m.? Consequently, this decision can only be left to the general meeting of the scheme.

Metalegal formants

Managers or factors appointed in Scotland for tenements and other developments are no doubt important. But before DMS they are always employed by the owners rather than an association that binds the owners. Therefore, other than under DMS, a manager cannot impose anything binding on the owners. Even under DMS, they would still need to go through the layer of authorisation set by the general meeting. Fundamentally, the power is always with the owners, or a majority