Экзамен зачет учебный год 2023 / European Condominium Law
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of them, unlike the experience of extremely powerful, even coercive, management structures sometimes encountered in other jurisdictions.
Slovenia
Operative rules
A professional manager acting on his own has no authority to make house rules. House rules may only be adopted by apartment owners who hold more than 50 per cent of the co-ownership shares in the condominium (Law on Housing art. 27). Most house rules provide for ‘basic rules of neighbourly coexistence’ (art. 27 and Rules on Management art. 9).679 The house rules thus primarily regulate the use of the common parts of the building, but they may also regulate some aspects of the use of private units.
Provided that the required majority is attained, the apartment owners can, through the relevant house rules, forbid the use of the swimming pool after midnight and provide that dogs are not allowed on the common property without being on a lead. Specific restrictions may also be provided for in the community by-laws.
A provision in the house rules that would prohibit persons under the age of 25 from receiving visitors after 10 p.m. would probably be considered as an infringement of their privacy. Moreover, such a provision would discriminate on the basis of age, which is forbidden by the Slovenian Constitution (art. 14).
Descriptive formants
The above answers are based upon the Law on Housing art. 27, which allows the apartment owners to adopt house rules. There are no specific provisions or case law concerning the contents of house rules. The only exception is the Law on Housing (art. 53), which provides that house rules may define which serious violations may support a claim for the exclusion of an apartment owner from the condominium and a forced sale of his apartment (Property Code art. 123).680 In general, house rules may not discriminate between different classes of owners and may not impose any unreasonable limitations on the use of the common property.
679 Juhart et al., Stvarno pravo, p. 352. |
680 See the answer to Case 4. |
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Metalegal formants
Specific rules about the use of apartments and the common property may be included in the community by-laws, as well as in the house rules. It is, however, easier to adopt or amend the house rules than to change the community by-laws for the purpose of introducing new rules. The adoption or amendment of house rules requires a 50 per cent majority in share value, while a 75 per cent majority in share value is needed for the amendment of the community by-laws (Law on Housing art. 32 par. 2).681 In practice, however, house rules (if indeed house rules have been adopted) tend only to regulate a certain number of very trivial issues such as where to put out the rubbish, a rule requiring the main entrance to the condominium to be kept locked and a prohibition on parking outside designated parking areas.
South Africa
Operative rules
Sectional title schemes in South Africa are administered by a set of model rules divided into management rules (by-laws) and conduct rules (by-laws) contained in Annexures 8 and 9 of the Regulations under the Sectional Titles Act respectively. The management rules may be amended or added to by a unanimous resolution of the management body, while the conduct rules may be amended or added to by a special resolution (75 per cent in number and value) (s. 35(2)(a)and (b)). All the rules mentioned above are special rules, which could most appropriately be added to the list of conduct rules. The only further requirement is that all rules must be reasonable and must apply equally to all owners of units put to substantially the same use (s. 35(3)). The proposed rule (c) would not comply with this criterion.
There is controversy in South Africa as to whether every additional rule, no matter how trivial, made by the management committee (trustees) for the orderly enjoyment of the common property must follow the procedure of section 35 or whether such rules can be made by the management committee or by an ordinary resolution of the general meeting. In an attempt to create a model template of rules that cannot be deviated from easily, the legislature has taken great care to
681This is an important exception to the general rule of contract law that an agreement can only be changed by an agreement between all the parties.
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subject the creation, content and amendment of conduct rules to strong checks and balances designed to preclude circumvention of the model rules by way of making house rules. It is further considered unacceptable and incompatible with the ownership entitlements of the owners of apartments to permit a small group of owners (management committee) to make rules regulating the use of an apartment.682 For these reasons it is also accepted that the more extensive use of house rules cannot be validated by inserting an enabling provision in the model rules (by-laws). However, some commentators are of the opinion that certain house rules can be construed as an exercise of the management committee’s power of control over the common property, and are thus legitimate.683
In view of the above, rules (a) and (b), which concern the behaviour of owners on the common property, would fall under the management committee’s power of control over the common property, whereas rule
(c) would be outside such power in that it endeavours to control the behaviour of owners inside their own apartments.
Descriptive formants
Neither the Sectional Titles Act nor the model rules have a provision allowing the management board to make ‘house rules’ to control and manage the scheme. The provisions on rules contained in the Act and the model rules must therefore be interpreted to reveal whether the management committee has any power to validly create house rules applicable to the scheme.
Metalegal formants
Most trustees and managing agents are of the view that sectional title schemes can be administered properly only if the conduct rules of the scheme are supplemented by a set of house rules to regulate more trivial matters relating to the day-to-day running of the common property and facilities. On the other hand, there is also the perception that sectional title schemes should not be cluttered with a myriad of ‘tenant rules’ as encountered in landlord and tenant buildings.
682Van der Merwe, Sectional Titles, pp. 13–33 – 13–34; Wood-Bodley, ‘“House Rules” in Sectional Title Schemes – Are they Ultra Vires?’ (2003), pp. 603–9.
683Van der Merwe, Sectional Titles, p. 13–35; Wood-Bodley, ‘House Rules’, pp. 606 and 609.
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Spain
Operative rules
The Law on Horizontal Property recognises two different kinds of rules, namely, by-laws and house rules (art. 6). By-laws (estatutos) are included in the constitutive deed of the condominium and imposed on the unit owners when they buy into the condominium or agree to their adoption by a unanimous resolution. By-laws may contain rules about the use and intended purpose (destino) of the building and the units, the service installations, expenses, administration and governance, security, and maintenance and repairs (art. 5 par. 3). Amendments to by-laws must be approved by unanimous resolution (art. 17.6 read with art. 14. d). Internal house or conduct rules (reglamento de re´gimen interior) are concerned with the details on everyday activities as well as the appropriate use of services and common elements. They can be amended by a simple majority vote (art. 17.7).
Rules (a) and (b) mentioned above will usually be included in the house rules because they affect the use of the common elements (art. 6). They must be approved by the owners’ community by a simple majority (art 17.7). The representative of the owners’ community (usually the president) is not allowed to promulgate them on his own.
Rule (c), which restricts the rights of owners to use their apartments as they please, may be inserted in the by-laws only by a unanimous vote. However, some commentators argue that any rule that unreasonably, arbitrarily or discriminatorily restricts the extensive entitlements an apartment owner has with regard to his apartment must be considered null and void.684 Nevertheless, it remains the function of the court to decide whether such provisions are unreasonable or arbitrary and thus void.
Descriptive formants
Social life in a condominium is governed by by-laws (estatutos) and house rules (reglamento de re´gimen interior) and each set of rules has its own majority requirements (unanimity and a simple majority) for adoption and amendment. The Law on Horizontal Property provides that these rules can only be adopted by the owners’ community and not on the sole authority of a representative of the community.
684 Alvarez´ Olalla, ‘Comment on art. 7.2 Condominium Act’ (2010), pp. 192–4.
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Metalegal formants
In practice, almost all condominium schemes have their own by-laws and usually also have their own house rules, especially in the case of so-called investment condominiums where most of the apartments are let. The need to facilitate the harmonious co-existence of several owners in the most efficacious possible manner frequently leads to the approval of a set of house rules besides a set of by-laws.
Sweden
Operative rules
Although a real estate cooperative (bostadsra¨tt) is primarily governed by legislation and by-laws adopted for the association in question, a management board may adopt house rules as long as they are fair and reasonable (Law on Real Estate Cooperatives Ch 7 s. 9). Rules motivated by issues of security and consideration for neighbours are for instance considered fair and reasonable. The same goes for rules that intend to preserve the cleanliness, order and good condition within apartments, the building and its surroundings (Ch. 7 s. 9). Consequently, rules concerning use of a swimming pool and dogs being kept on a lead are acceptable. A rule prohibiting persons under 25 to receive visitors during certain hours comes into conflict with protection of personal integrity and is not allowed.
Descriptive formants
The Law on Real Estate Cooperatives regulates the authority of the management board to adopt fair and reasonable house rules for the scheme.
Metalegal formants
It is not unusual that management boards adopt house rules that are impossible to enforce, for example, rules prohibiting children playing on the lawn. Such rules should be avoided. House rules rarely cause conflicts between members of real estate cooperatives in Sweden.
Case 8
Are all resolutions binding?
A week after a general meeting took place, Antonio, who did not attend the meeting, decides that he does not like the resolutions that were passed and challenged them on the following grounds:
(a)that he only received a telephone call informing him of the meeting the evening before the meeting was held;
(b)that the meeting was attended by a mere 40 per cent of all the owners;
(c)that the resolutions were approved by the majority of owners present at the meeting and not by a majority of all the unit owners;
(d)that the resolutions were approved by the required majority of owners signing a written deed containing the resolution;
(e)that the resolutions were approved by voting on a show of hands and not by voting proportionate to the quotas of the unit owners present;
(f)that 80 per cent of the owners appointed the chairperson as their proxy, which allowed him to pass all the resolutions according to his wishes.
Comparative observations
Operative rules
This Case deals with several procedural and substantive aspects of general meetings and in particular the grounds on which, and the time frames within which, resolutions taken at general meetings may be challenged.685 In principle, it is accepted that procedural errors may render a decision voidable if the mistake could have had a material influence on the outcome.686 A crucial question arises as to how far
the law of associations might be applied by analogy to cases where the by-laws do not deal with any specific matter.687 For the sake of
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Catalan, Greek and Swedish reports. |
686 Norwegian report. |
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Estonian and Greek reports. |
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completeness it is worth noting that general meetings are not part of TMS schemes in Scotland.
(a) that he only received a telephone call informing him of the meeting the evening before the meeting was held
At issue here is whether the period (the night before the meeting) and manner (telephone call) of notification constitute valid notice of the meeting in question. Most jurisdictions require advance notification of at least seven days688 but no more than twenty-one days,689 although there are minimum periods of two weeks, fifteen and twenty days, four weeks and eight weeks in Austria, Belgium, Norway,690 Sweden and Denmark respectively. Some jurisdictions allow for a shorter notification period for special general meetings (Denmark) or for meetings convened in an emergency (Belgium, Estonia and France). In South Africa, for example, a general meeting may be called on short notice if so agreed by all the persons entitled to attend, or if the management board considers it necessary as a result of the urgency or specific nature of the matter. In Spain, sufficient notice of special general meetings must be given to allow all interested parties to attend.
The notice must be delivered either by hand691 or by registered692 or ordinary693 post. Some jurisdictions, namely, Austria, Catalonia and Slovenia, require that the notice must also be published on a public notice board within the condominium. This method is also acceptable in Spain if all other normal forms of notice are impracticable. In Denmark and Portugal, any other type of notice (for example, telephone or e-mail) must first be agreed upon by all those entitled to attend the meeting. In Austria, any owner can request that the notice be sent by electronic post.
Greek law takes a very relaxed attitude towards the notification of general meetings. On the model provided in the law of associations, Greek law allows the general meeting to be convened in the most
688Estonian and Polish reports. Spain requires a notice of six days, and if a meeting is called under a TMS scheme in Scotland a notice of forty-eight hours before the meeting is sufficient.
689Danish, English, French and Irish reports. Note that South Africa requires at least thirty days’ notice for a special general meeting for the purposes of passing a special or unanimous resolution.
690Norway: minimum of eight days and maximum of twenty days.
691In Portugal, the owner must sign an acknowledgement of receipt.
692 French, Portuguese and Spanish reports. |
693 Swedish report. |
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convenient way, whether by written notification, telephone call or otherwise. The notification must be addressed to all members and must reach them at some point before the meeting is held. On this point, it is interesting to note that Spanish Law provides that the general meeting can take place even without the president being notified if all the owners meet and decide to hold a meeting. No particular notification system in respect of general meetings is specified in Croatia.
Most jurisdictions accept that failure to give proper notice in principle renders any resolutions passed at the general meeting void,694 or at least leaves them open to challenge, so treating them as being voidable.695 Certain jurisdictions allow an exception in the case of accidental or inadvertent failure.696 In the Netherlands and Portugal, resolutions taken at a general meeting may be challenged in court within one or two months respectively after the resolution was taken, on the ground of failure to comply with notice requirements. However, it is accepted, at least in Portugal, that if Antonio was present at the meeting, despite the irregularities, he is not entitled to subsequently challenge the validity of the resolution. In Germany, the resolutions will be void ex lege only if the late notification of Antonio was specifically intended to make his participation at the meeting impossible.
Spanish and Catalan courts, on the other hand (and in particular the Constitutional Court), have tended to place less importance on the formalities of the notification requirement, and hence it suffices if the owner concerned knew there was to be a general meeting. In the present case, Antonio acknowledges that he was informed of the meeting, albeit that the notice was not given within the period laid down by the law. In such cases, the Spanish High Court has held that such an owner cannot challenge the resolutions of the general meeting on the ground that she was not able to attend the meeting. The Danish report takes a fairly pragmatic approach, suggesting that resolutions taken at a meeting where the formalities of notification were not properly observed would not be regarded as invalid if the non-compliance with formalities is not significant.
694Belgian, Estonian, French, Italian and Slovenian reports. In Poland, an invalid notice entails that a meeting is deemed not to have been scheduled or taken place, so that any resolutions passed are invalid.
695Dutch, German, Norwegian and Portuguese reports.
696Danish, English, Irish and South African reports.
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(b) that the meeting was attended by a mere 40 per cent of all the owners
This issue concerns the quorum requirement for general meetings to be validly constituted and capable of passing binding resolutions. Interestingly, domestic legislation in Denmark, France, the Netherlands, Norway, Poland, Slovenia, Croatia and Sweden does not contain any quorum requirements, at least in the case of simple majority resolutions. The French report, for example, indicates that a meeting may be held with only one or two owners, but that resolutions that require unanimity or an absolute majority of all the owners in number cannot be adopted if such a meeting is held in larger schemes. All Austrian and Croatian resolutions at meetings are either passed by a majority vote based on share values of the total number of owners in the scheme or, in matters that fall outside the scope of ordinary management, by the unanimous consent of all the owners in the scheme. All Polish resolutions concerning ordinary management are passed by a majority vote in share value in small communities or are treated as part of the functions of the management board in large communities, whereas resolutions concerning matters that fall outside the scope of ordinary management are passed by unanimous vote in small communities or majority vote in share value in large communities. Votes may be collected either during a meeting or after the meeting where the manager or management board may visit absentee owners to collect the votes necessary for reaching the majority concerned. This system facilitates the democratic management of the scheme
Most other jurisdictions have, however, accepted the traditional quorum requirement of a 50 per cent attendance in person or by proxy. Several jurisdictions require a 50 per cent attendance by owners both in number and share value (Belgium, Catalonia and Spain), whereas others simply require an attendance of 50 per cent by share value alone (Estonia, Germany, Greece, South Africa and Portugal). Greece and South Africa require attendance by all owners or 80 per cent of owners, respectively, when it comes to adopting unanimous resolutions. However, a widespread lack of interest in attending general meetings, most notably in larger condominiums, has compelled many jurisdictions to adopt less strict quorum requirements. The default quorum in England is thus one-fifth of the members of the association or two members,
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whichever is the greater, present either in person or by proxy.697 In South Africa and Scotland, the default quorum for schemes comprising more than ten or thirty units respectively is 35 per cent, while in South Africa the default quorum for schemes of more than 50 units is 20 per cent. In Germany, resolutions adopted without a quorum are merely voidable and any challenge to such resolutions will be successful if the other owners can prove that the resolutions were passed with the proper majority.
Jurisdictions with a quorum requirement allow new meetings to be scheduled if the first meeting is not quorate. The subsequent meeting must be held within a certain limited time frame in order to dispose of matters that were intended to be dealt with at the original meeting. In Spain, the legislation was amended so as to provide that a second meeting may, for convenience sake, even take place immediately after the original meeting was scheduled (for example, half an hour after the appointed time of the original meeting). If the meeting does not take place immediately after the appointed time of the original meeting, a new meeting must be convened within eight days of the failed meeting, and advance notice in this case must be given to the owners at least three days beforehand.698 Estonian legislation requires the manager to call a second meeting within three weeks but not earlier than one week after the adjourned meeting, and to notify the owners that the subsequent meeting will be quorate irrespective of the number of participants. In Scotland, the meeting must be rescheduled to a date between fourteen and twenty-eight days later, and advance notice must be given. Other jurisdictions, including England, Portugal and South Africa, stipulate that if the quorum is not present within half an hour (twenty minutes in Scotland) after the time set for the meeting, or if during the meeting it becomes inquorate, the meeting must be adjourned to the same day in the next week, at the same time and place. In Portugal, the owners present in person or by proxy at the second meeting must hold more than 25 per cent of the total share value in the condominium, failing which the meeting must be rearranged once again.
697The default quorum in Ireland is three members, which can be varied in the articles of association.
698See also the Catalan report.