Экзамен зачет учебный год 2023 / European Condominium Law

proxy is only valid for three years. However, an unauthorised proxy’s vote may be ratified by the owner in writing within fourteen days after the meeting (§ 24 par. 2). Austrian law does not seem to have a limitation on the number of proxies one person (such as the chairperson) can accept.

Descriptive formants

A resolution which does not comply with the above requirements must be challenged judicially in order to strike at its validity. A measure is only ever null and void if the actions during the meeting do not even have the appearance of a resolution.734 The challenge is assessed in noncontentious proceedings (§ 52(1)). Austrian legislation sets out the time limits for bringing such a challenge. If the deadline is missed, then the owners are deemed to have acquiesced to the decision. Notwithstanding this, case law has further reformed apartment ownership law by accepting that there are certain circumstances in which the time limits are disapplied. If, for instance, a resolution contravenes mandatory legislative voting provisions, it can be challenged indefinitely.735

Metalegal formants

As the community of owners does not generally consist of professionals, many resolutions made without the aid of the manager fail to meet the formal requirements specified by law. This could be the case for a resolution to dismiss a manager, which is unlikely to be made with his assistance! Consequently, the ways of curing certain defects of resolutions are of great importance in practice.

Belgium

Operative rules

An owner is entitled to initiate judicial proceedings seeking to nullify or amend an irregular, false or unlawful decision (‘onregelmatige, bedrieglijke of onrechtmatige beslissing/ de´cision irre´gulie`re, frauduleuse ou abusive’) of the general meeting within four months after the meeting (CC art. 577-9 § 2). In casu Antonio can raise several arguments in support of his position that the resolutions were passed irregularly and that substantial provisions about the organisation and functioning of the meeting were violated.

734RIS-Justiz RS 0109645, RS0118450.

735OGH 5 Ob 16/05x wobl 2006/93 (Vonkilch) ¼ MietSlg 57.480 ¼ immolex 2005/97 (Prader).

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(a)A letter containing the notice of a general meeting must be delivered by registered post unless the recipient owner has agreed individually, explicitly and in writing that the notice could take another means of communication. The notice must be sent to the last-known address of the recipient. Except in urgent cases, the notice must reach the recipient at least fifteen days before the date of the meeting unless the by-laws make provision for a longer period of notice (art. 577-6 § 3, par. 3). In the present scenario the fact that the provisions pertaining to the calling of a meeting have been breached is a sufficient ground on which to invalidate the decisions made.

(b)A general meeting is validly constituted only where there is a quorum at the beginning of the meeting, namely, if more than half of the owners in number and value in terms of co-ownership shares are present or represented at the meeting or if the owners present or represented at the meeting hold more than three quarters of the total co-ownership shares in the scheme (art. 577-6 § 5). If a quorum is not reached, the decisions taken by the general meeting are invalid and subject to challenge.

(c)Decisions are taken by a majority (or special majority) of the votes of owners present or represented at the meeting (art. 577-6 § 8, par. 1). The fact that the decision was not taken by a majority of all unit owners does not impact upon the validity of the decisions.

(d)The members of the owners’ association may unanimously adopt all decisions within the competences of the general meeting in writing, with the exception of decisions that are required to be drawn up in an authentic document (art. 577-6 § 11). If the majority required making the substantive decision is achieved, but there was not unanimity with regard to the signing of the document, the decision is not passed validly.

(e)As a majority of votes is required to adopt a resolution at a general meeting (arts. 577-6 § 8 and 577-7 §1), and the value of the vote of each owner is calculated in proportion to his or her quota (art. 577-6 § 6), a decision made by a majority of owners in number but not in value is irregular. The minutes of the meeting must record the resolutions adopted at the meeting and record the majority that was obtained, as well as the names of the owners who voted against the resolution or abstained from voting (art. 577-6 §10). This is important, as only those who opposed a decision at the meeting itself are able to challenge the decision subsequently.

(f)In order to ensure that voting at general meetings is more balanced, the legislator restricted the number of proxies that may be granted to

three proxies for one person as part of the 2010 reforms of the condominium legislation. This is, however, subject to the rule that an individual may accept more than three proxies so long as the total number of votes he is representing at the meeting does not exceed ten per cent of the entire share value (art. 577-6 § 7). In this particular scenario it is scarcely conceivable that 80 per cent of the owners and the chairman cumulatively hold less than 10 per cent of the votes. In the likely event that they do hold more than 10 per cent of the votes, the decisions are taken in an irregular manner.

Descriptive formants

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

Metalegal formants

The legislator has, in the 2010 reform, paid special attention to the participation of owners in the management of the scheme. Therefore, the rationale of some of the new provisions was to provide an incentive to owners to participate in the decision-making process at general meetings. Some of the provisions dealing with this process were inspired by similar provisions in the Law on Companies.

Catalonia

Operative rules

The Catalan CC regulates the instances in which resolutions of a general meeting may be challenged (art. 553-31). Resolutions that contravene the provision of the constitutive title may be challenged within one year after the resolution, whereas resolutions that contravene by-laws may be challenged within two months after the resolution. There is no timeframe for the challenge of any resolutions that contravene the law, which is ipso facto void, and therefore can be declared a nullity at any time.

(a) To convene an annual general meeting (CC art. 553-20.1), certain formal requirements must be complied with. The president, vicepresident or the secretary may convene the general meeting and if they omit to do this, any owner has the right to do so (art. 553-21.1 and 2). Every owner must be notified of the meeting eight days in advance through a letter sent to the address of his unit; in addition the relevant notice must be published on a public notice board within

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the condominium; the notice must contain, at least, the place, hour, date and the agenda of the meeting and must be signed by both the secretary and the president of the condominium (art. 553-21.4). By contrast, all that is required to convene a special general meeting to discuss urgent matters is that every owner must be notified that a special meeting has been called. No express form is required but using a written notification would facilitate proof that there was proper notification if a resolution is challenged on the ground of insufficient notification of the meeting. Therefore, Antonio can challenge the resolutions of the meeting only if it is an ordinary general meeting. In the event of a special general meeting evidence that a phone call has been made to Antonio would be proof of proper notification.

(b)The fact that only 40 per cent of the owners attended the general meeting concerns the quorum requirements for general meetings. Many owners show a lack of interest in attending general meetings and generally only attend meetings if there is something that affects them personally such as a proposed increase in their contributions, the installation of new TV antennas or if they want to solve a particular problem. Therefore, CC art. 553-23.1 provides for a simultaneous notice of the first meeting (primera convocato`ria) as well as the second meeting (segona convocato`ria), which takes place if the quorum required for the first meeting is not reached. The quorum requirements for the first and second meeting are different. For the first general meeting a quorum of at least 50 per cent of the owners in number and quota (share value) is required; for a second or adjourned meeting (quite often convened for only several minutes after the first meeting), there is no quorum requirement, so the meeting is properly constituted and the resolutions taken at the meeting are valid if some owners attend the meeting, regardless of their number and the value of their quotas. If the resolution was taken at the first meeting, Antonio could challenge it on the ground that there was not a quorum; if it was taken at the adjourned meeting, he cannot challenge the resolution on this ground.

(c)In some cases a resolution is only valid when it has been passed by an absolute majority in number and share value of all the owners in the condominium and not only by a majority of owners present at the general meeting. Thus, for instance, a four-fifths majority in number and share value is required to pass a resolution to modify the constitutive title or the by-laws of the scheme subject thereto that a lower majority may be provided for in the by-laws of a particular scheme. Further resolutions that require such an absolute majority in number

and value are resolutions to make alterations to the building, change the outside appearance of the building or construct a swimming pool or other leisure facilities, such as the construction of canopies over the outside windows of units (art. 553-25.3).736 The same majority is required to increase the contribution to common expenses of a particular owner who makes disproportionate use of common elements or services as a result of practicing a profession (art. 553-45.4).Therefore, Antonio can challenge any of the above resolutions if they are not passed by the required absolute majority. Moreover, a resolution that alters the use and enjoyment of a unit needs the consent of the owner concerned (art. 553-25.4).737

(d) In principle, under Catalan law resolutions must be passed at a general meeting. It is therefore not possible to adopt a resolution by just signing a document containing the resolution without any other formality (art. 553-25). This is confirmed by the fact that any resolution on a motion that was not mentioned in the notification of the meeting as part of the agenda of the meeting may be challenged by any owner in the scheme with the exception of resolutions providing for removal

and subsequent appointment of a president, administrator and secretary for the scheme (art. 553-25.1).738

(e)Ordinary resolutions require both a majority in number and share value of the owners present at the general meeting for being validly passed (art. 553-25.5). Thus, Antonio can challenge the resolution on this basis. Catalan law does not make provision for voting by a show of hands where only a majority in number of the owners present at a meeting could pass a resolution.

(f)Voting by proxy is possible if the proxy has been appointed in writing prior to a general meeting for that particular meeting and provided the president has been duly notified of the appointment prior to the meeting. The Catalan provisions do not limit the number of owners that a proxy can represent (art 553-24.2 and 3) but such provision may be included in the by-laws of a condominium scheme. Therefore, Antonio cannot bring an action on this basis, unless the number of owners that a proxy can represent is limited in the by-laws of the scheme.

736See SAP Barcelona 30-6-2009 (JUR 2009\408215).

737Decision of Direccio´ General de Dret i Entitats Jurı´diques RDGDEJ 21-4-2010 (JUR 2010 \172397). This Catalan administrative organ issues decisions in relation to decisions by Land Registrars accepting or denying the registration (or the modification) of the by-laws in the land register.

738SAP Lleida 5-3-2009.

however, open to the unit owners to agree to such a system. For example, a rule could be passed that invalidated resolutions passed at meetings where there was a lack of timely notification.

In the absence of such an agreement, however, resolutions approved by the majority are binding on all unit owners, even if those owners are not present at, or were not duly notified of, the general meeting at which they were passed. It goes without saying that any decision requiring unanimity could not be enforced without Antonio’s consent.

(b)Votes are calculated according to ownership quotas, regardless of the number of owners present at the meeting (art. 40(2)). There is no quorum requirement and owners (or even a single owner) holding the required majority of ownership shares may validly adopt a particular resolution.

(c)The outcome of this objection will depend on whether the cumulative quota held by the owners voting in favour of the resolution is more than 50 per cent of the aggregate of all the quotas in the scheme. As mentioned above, the question of whether the majority of owners in number votes in favour of the resolution is irrelevant. The majority of co-ownership shares in value is crucial.

(d)In Croatia, resolutions need not be adopted at a general meeting. It is sufficient if the required majority sign a document containing the resolution concerned (Law on Ownership and other Real Rights art. 85(4)).

(e)Once again, the pertinent question here is whether the majority calculated by the show of hands (in number) corresponds to the majority of co-ownership shares. Failing the latter, the resolution will not have been validly passed and Antonio’s complaint is justified.

(f)The Law on Ownership and other Real Rights does not require the unit owners to vote in person. Thus proxy voting is valid, provided the requisite majority calculated by share value quota is attained.

Descriptive formants

The mechanisms for decision-making and voting contained in the Law on Ownership and other Real Rights are very basic, and do not adequately regulate the multiple scenarios that could foreseeably arise. This can largely be attributed to the general attitude of the Law to allow unit owners to govern their affairs as they please. The rationale for this appears to lie in the fact that there are no significant public interests in need of protection as is the case in corporate law matters.

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Metalegal formants

In practice, the issues presented are unlikely to arise in Croatia, because of the general apathy among unit owners towards active management of the scheme. While unit owners could comprehensively regulate the issues presented if they so wished, they rarely do so, if ever. Note that it is often difficult to have the required number of owners attend the meeting to pass a resolution by a majority in share value. Managers are often asked to draw up and circulate drafts of important decisions, which owners individually sign if they agree with the proposal. Lawyers are seldom professionally involved in such matters unless the decision affects land registration, where professional advice is called upon to attend to the intricacies involved.

Denmark

Operative rules

(a)The Model By-laws prescribe that the Board must give owners written notice to attend general meetings at least three weeks and no longer than eight weeks before an ordinary general meeting and at least two weeks before an extraordinary general meeting is scheduled (§§ 3 par. 2 and 5 par. 2). Written notification can only be replaced by e-mail if agreed upon

in general meeting, as everybody may not be able to receive e-mails. Even though these by-laws do not apply to a particular scheme,739 the unwrit-

ten default principles of association law require that every owner must be given reasonable notice of meetings. If not, the court can void such decisions. However, if Antonio was the only one who had not received proper notice, the decisions will most likely not be set aside.

(b)The Model By-laws do not contain any quorum requirements for the valid constitution of a general meeting. Therefore, the meeting will be validly constituted if it is attended by a mere 40 per cent of all the owners.

(c)The Model By-laws stipulate that all decisions must be taken at a general meeting by the majority of the owners present at the general meeting. The weight of the votes corresponds to the owners’ individual unit quotas (fordelingstal) (§ 3 par. 2). Decisions on very important matters (changes to the common property, transfer of common property or change of by-laws) require a majority of two-thirds in number and

739The Model By-laws apply to all schemes unless other by-laws have been adopted and registered (§ 1 par. 1).

representing two-thirds of the total quotas of units of those present. Otherwise, the matter cannot be finally decided upon until after it has been confirmed by a two-thirds majority at another extraordinary general meeting (§ 2 par 4).740 Furthermore, although relatively few resolutions must be made unanimously, the owners have a right to veto certain resolutions that substantially affect their legal rights.741 This minority protection has been confirmed in several court decisions.742 It is significant that all these resolutions are taken by the required majority present at the general meeting and not by a majority of the total number of owners or of the total quotas represented in the scheme.

(d)Danish law does not make provision for the adoption of a resolution by the signing of a document containing a resolution by the required majority of owners. Resolutions can be adopted validly only at a general meeting and not without a meeting being held. However, the general meeting can (by the required majority) decide that decisions are made in a way that deviates from the one that follows from the Model By-laws.

(e)We have already mentioned that the Model By-laws provides that a

resolution may be adopted by a simple majority calculated in accordance with the quota of owners present at the meetings (§ 2 par 3).743

The chairperson would make a mistake if he calculated the majority vote in accordance with the number of the owners present instead of according to the value of their votes. This can be derogated from, so

that the relevant majority required is a numerical majority rather than any calculated in accordance with the quota value of votes.744 If a

resolution has not been adopted by the required majority, a court may void the resolution. On the other hand, if the chairperson acts as proxy for 80 per cent of the owners as in the next question, the formal counting of the unit quotas would not be required.

(f)The Model By-laws provide that a member (unit owner) may appoint an adult or a member of the executive board by a written power of

740This is meant to protect the minority when it comes to decisions of major importance.

741Blok, Ejerlejligheder, pp. 549–50.

742Western High Court decision of 7 October 2002 (Ugeskrift for Retsvaesen 2003 p. 187), Eastern High Court decision of 8 September 2006 (Ugeskrift for Retsvaesen 2007 p. 14) and Eastern High Court decision of 25 August 2006 (Tidsskrift for Boligog Byggeret 2007 p. 111).

743The chairperson may decide that the voting must take place by means of a secret ballot.

744Blok, Ejerlejligheder, pp. 392–3.