Экзамен зачет учебный год 2023 / European Condominium Law
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the meeting (Articles of Association inference from art. 12 and Companies Act 2006, s. 307(1)). The proceedings of an annual general meeting will not, however, be invalidated if a failure to give notice was accidental or inadvertent (art. 13) of which there is no evidence in this Case. Subject to the foregoing, failure to give proper notice renders invalid all resolutions passed at the general meeting.
(b)The default quorum for any business to be transacted at an annual general meeting is based on association members, not unit numbers. The default quorum is one-fifth of the members of the association or two members, whichever is the greater, present either in person or by proxy (Model Articles art. 16). If this quorum is not present within half an hour 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 (art. 17). However, since 40 per cent of the owners in this Case attended the meeting, the resolutions are not invalidated for lack of a quorum.
(c)Two types of resolution require unanimity: resolutions to add land to the commonhold or create a legal mortgage over the common parts (CLRA 2002 ss. 29(2) and 41(3)). However, this rule seemingly refers to unanimity of members with votes present at the meeting or voting by proxy, all voting in favour, who may amount to less than half the total number of members of the association.745 Otherwise, there is a distinction between special and ordinary resolutions. The former require a simple majority of members present and voting in person or proxy, the latter a 75 per cent majority (Model CCS para 1.4.5.). The latter would be required for an alteration of the Articles of Association and the former for a resolution to dismiss a director. Any resolution not passed by the required majority is invalid.
(d)A commonhold association, as a private company, may opt for its decisions not to be taken at an annual meeting, but by written resolution (Companies Act 2006 s. 336). A deed is not required for the purpose of this rule.
(e)The English rules envisage two basic types of vote – by a show of hands and on a poll. Each unit holder, on a show of hands, has one vote, but on a poll, if the person concerned has more than one unit in the commonhold, he has the sum of the votes for each individual unit of which he is unit holder (Model Articles art. 30(b)). Any unit holder owning more than one unit is likely to demand a poll wherever he
745 Clarke, Commonhold, pp. 16–21.
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wishes to make his greater voting strength count. A poll must be demanded at the meeting and it is now too late for Antonio to do so.
(f) It is open to any association member to appoint the chairperson of the meeting to act as their proxy subject to compliance with a number of formal rules, notably that the proxy is to be in writing, in the required form, or to the same effect (Model Articles art. 36), or as approved by the directors, and signed by the unit holder making the appointment. Antonio has no ground for challenge under this head. It would seem that if no instructions are given by the unit holders on their proxy forms the chairperson can vote in favour of a particular resolution or against it in accordance with his own views.
Descriptive formants
Descriptive formants are the Companies Act 2006 and Commonhold Regulations 2004 as amended.
Metalegal formants
A reasonable period of notice is required so that any opposition to proposed resolutions can be organised.746 This may explain why the minimum period of notice for an annual general meeting is twenty-one clear days ahead of the meeting and that invalidity follows noncompliance with the requirement.
A form of unanimity is required for a resolution to add land to a commonhold or to create a legal mortgage over the common parts, presumably because the cost of the additional land might have to be paid out of a special levy on all members, which some might resent, while the cost of servicing a mortgage on the common parts would likewise affect all unit holders. Community harmony would not be promoted if, for example, in a 100 unit community of just 20 members present at a general meeting, 11 were competent to pass a resolution voted in favour of either transaction, which might affect all 89 other unit holders as well as those voting in favour. As it is, less than half the total membership can pass the relevant resolutions.
The discretion of the chairperson with regard to proxy votes where he or she has not received precise instructions to vote in favour, or against, or to abstain, in the name of their principal reflects the slant of English law towards the board of directors of the association as a private company.
746 Davies, Gower & Davies Principles of Modern Company Law (2008), p. 450.
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Estonia
Operative rules
(a) In terms of the Law on Apartment Ownership the apartment owners must be notified of a general meeting in writing a week before the meeting is scheduled to take place except in case of urgency (§ 18(4)). The notice in the Case was not, as required, in writing and did not reach Antonio a week before the date of the general meeting. In the absence of provisions in the Law on Apartment Ownership, the relevant provisions of the Law on Apartment Associations can probably be applied by analogy. This Law requires strict adherence to the procedure for convening a general meeting in order to validate the resolutions taken at such a meeting (Law on Non-profit Associations § 24-1 (1)).
If an apartment association has been formed, the Law on Non-profit Associations also requires at least seven days prior notification of the general meeting (§ 20(5)) unless the articles of association prescribe a longer term (§ 20(5)). The failure to comply with this requirement therefore also renders all resolutions of the general meeting void (Law on Non-profit Associations § 24-1(1)). The form of the notice is regulated in the articles of association of the apartment association.
(b) A quorum is constituted for a general meeting if the owners attending the meeting hold more than 50 per cent of the co-ownership shares in the common property as entered in the land register (§ 19 (2)). If 40 per cent of the members attending hold an aggregate of coownership shares amounting to more than 50 per cent a quorum will be constituted. Any resolution passed at a meeting without a quorum, is ipso facto invalid. In the case of the lack of a quorum, the manager must call a fresh meeting within three weeks but not earlier than one week after the adjourned meeting. The new meeting will then be quorate irrespective of the number of participants. This fact must have been notified to the owners in the relevant notification concerning the adjourned general meeting (§ 19(3).
Where an apartment association has been established, the Law on Non-profit Associations provides that the general meeting may adopt resolutions if the meeting in question was called in conformity with all requirements laid down by law and by the articles of association of the apartment association (§ 21(1)). The articles of association of an apartment association may contain provisions as to when a quorum is
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constituted at the first meeting and also as to the procedure for calling an adjourned general meeting. Therefore, if an apartment association has been established, Antonio may be able to challenge the resolutions adopted at the general meeting on the ground that the quorum provisions of the articles of association of the apartment association have not been complied with.
(c)The Law on Apartment Ownership provides that decisions adopted by majority vote pursuant to the Law, or an agreement of the apartment owners at a general meeting are valid (§ 17(1)).Therefore, the resolutions adopted cannot be challenged on the ground that they were not adopted by the majority vote of all the owners but only by a majority vote of the owners present at the general meeting.
Likewise, the Law on Non-profit Associations provides that a resolution of the general meeting is adopted if over 50 per cent of the members or their proxies who participate in the meeting vote in favour of the resolution unless the articles of association prescribe a greater majority requirement (§ 22(1)). Therefore, in the absence of a greater majority requirement specified in the articles of association, the resolutions adopted cannot be challenged on this ground.
(d)The Law on Apartment Ownership provides that a resolution may also be adopted without calling a general meeting if all the apartment owners have submitted their written approval of the resolution (§ 17(3)). The Law on Non-profit Associations likewise provides that a resolution of the general meeting shall be deemed to be adopted without calling the general meeting if all members of a non-profit association vote in favour of the resolution in written form (§ 22 (3)). Consequently, Antonio would not be able to challenge the resolutions, because the adoption of resolutions without holding a meeting is
expressly validated in the two Laws.
(e) Voting by show of hands is commonplace. Under the Law on Apartment Ownership each apartment owner has one vote regardless of the number of apartments that he or she owns (§ 19 (1)). Although the quotas allocated to each apartment play an important role in establishing a quorum, it is of no importance in the voting process.
At the general meeting of apartment associations each apartment owner has one vote unless otherwise provided by the articles of association of the apartment association (Law on Apartment Associations § 11 (1)). The terms of the relevant articles of association will govern the question of whether Antonio is or is not able to challenge
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the resolutions. Based on the above Law, the quotas of the unit owners are of no relevance in the voting process.
(f) The Law on Apartment Ownership does not contain any provisions on the appointment of proxies. Based on the analogous provisions of the Law on Non-profit Associations, it seems to be generally accepted that any owner is entitled to appoint a certified proxy to attend and vote at the general meeting unless the contrary is provided in the articles of association (§ 21(5). There are no restrictions as to who may or may not be appointed as a proxy and on the number of proxies one person (e.g. the chairperson) is entitled to hold.
Descriptive formants
The answers in the above Case are either based on the provisions of the Law on Apartment Ownership pertaining to general meetings or, if the owners have established an apartment association, on the relevant provisions of the Law on Apartment Associations read with the Law on Non-profit Associations. Note that the written notification of the general meeting shall set out the time and place of the general meeting, the reason for calling the general meeting, the agenda of the meeting and other circumstances relevant to the meeting (Law on Apartment Ownership § 18(4); Law on Non-profit Associations § 20 (6)). The notice has to be in writing so that the apartment owner will have enough information to prepare for the meeting.
Note that the provision that requiring a majority of votes in number (and not in share value) for the adoption of a resolution and the provision that this majority must be achieved by the attendees at the general meeting, and is not based on a majority in share value of all the owners in the scheme, are modelled on the corresponding provisions concerning general meetings of companies under the Estonian Commercial Code. It is also noteworthy that the scant provisions pertaining to proxies in the Law on Apartment Ownership and the Law on Apartment Associations are supplemented by detailed provisions pertaining to proxies in the General Part of the Estonian Civil Code §§ 115-131.
Metalegal formants
The aim of the requirement of sufficient notification prior to a general meeting is to allow an apartment owner sufficient time to make the necessary arrangements to participate at the general meeting.
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The rule that a quorum at a general meeting is only constituted if the apartment owners participating in the meeting hold more than onehalf of the co-ownership shares in the common property entered in the land register, is based on the idea that the meeting may only adopt valid resolutions once a majority of shareholders with sufficiently important financial interests in the scheme are represented and not only when a numerical majority of owners are present or represented.
The fact that a majority of apartment owners present at the general meeting (and not an absolute majority of all the apartment owners) can adopt a valid resolution is based on the fact that all the apartment owners will have received prior notice of the meeting. Consequently, they all had the choice of participating at the meeting or of appointing a proxy to vote on their behalf. If they have opted not to do so, they have implicitly accepted the possibility that resolutions may be adopted at the meeting without their participation.
France
Operative rules
(a)In France, every owner must be summoned to attend the general meeting by registered mail (Decree on Apartment Ownership art. 64), at least twenty-one days before the date scheduled for the meeting. The condominium by-laws (re`glement de coproprie´te´) may fix a longer period of notice and in case of emergency the general meeting may be held on shorter notice (art. 9). If these provisions are not complied with, the general meeting is not deemed to be validly constituted and all resolutions taken at such a meeting are void (art. 13).
(b)The fact that only 40 per cent of the owners attended the meeting is
not a problem given that no quorum is required in France for the constitution of a general meeting.747 A meeting may be held with only
one or two co-owners, but resolutions that require unanimity or an absolute majority of all the co-owners in number would be impossible to adopt.
(c)Simple majority resolutions may be adopted by the majority of owners present or represented at the meeting voting either in favour or against the proposed resolution. Certain other resolutions may not
747Court of Appeal Paris, 23 September 1986, quoted by Givord, Giverdon and Capoulade, La coproprie´te´ (2010–11), no. 827.
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be adopted in this way, for instance, resolutions requiring a double majority of co-owners present or represented at the meeting and representing at least two-thirds of them by quota. The French legislation does not contain resolutions that can only be adopted by an absolute majority of all the owners in the scheme.
(d)French law requires that all condominium resolutions must be approved at a general meeting. A document containing the signatures
of the required number of co-owners’ approval to the resolution is therefore unacceptable,748 except if such a deed has been signed
during the general meeting.
(e)There is no difficulty about voting by a show of hands, but the required formal statement relating to the vote must state how many owners voted for or against the resolution, and which share of the total vote this represents, in order to determine whether a particular resolution has been approved or not (Decree on Apartment Ownership art. 17). If the statement only indicates how many owners have voted in favour of the decision, the decision is void.
(f)The chairperson and for that matter any other owner or person, is not entitled to hold more than three proxies. In other words, an owner (or even a third person) attending the general meeting can only vote for himself and three other owners who have designated him as their proxy (Law on Apartment Ownership art. 22 par. 3). Neither the manager (not being the husband, wife or civil partner of an owner), nor any of his or her employees is entitled to represent any owner at the general meeting (art. 22 par. 4). Any violation of this rule renders the resolution in question void.
Descriptive formants
(a)The manner in which owners must be notified and the period of the notification is regulated by the Decree on Apartment Ownership.
(b)The fact that no quorum is required for the constitution of a general meeting is based on French case law. The rationale is that only a few resolutions, among them a resolution on the budget requiring swift adoption, can be adopted by simple majority vote.
(c)The majorities required for different types of resolutions are regulated in the Law on Apartment Ownership. Only a few resolutions can be taken by means of a simple majority of owners present at a meeting.
748 Cass. Civ. 3e`me 27 February 2002 no. 00-13907.
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(d)French case law requires that all resolutions must be taken at a general meeting and does not recognise resolutions adopted by the required number of signatures on a document containing the resolution.
(e)The formal statements regarding the voting by a show of hands as required by the Decree on Apartment Ownership must be drawn up by the scheme manager and must be sent to all the owners after the meeting. In practice, these statements are not always sufficiently precise.
(f)The number of proxies one person can hold and the question as to what persons are entitled to represent an owner as proxy are regulated by the Law on Apartment Ownership.
Metalegal formants
(a) The entitlement to vote at the general meeting as a means of exercising one’s ownership rights is designated as one of an individual’s fundamental rights by the European Court on Human Rights749 and the French Constitutional Council.750 Furthermore, allowing the manager to notify owners of a general meeting by a simple phone call or e-mail would be less expensive but would not have the same evidential value or official quality as a notice by registered mail.
Until 2007, the period of notice required for a general meeting was only fifteen days prior to the appointed time of the meeting. By extending the period of notice to twenty-one days, the legislator probably aimed at increasing the number of co-owners attending the meetings but this has not happened in practice.
(b)In order to facilitate the adoption of resolutions at a general meeting, French law does not require a quorum for the meeting to be constituted. This means that only a few resolutions can be approved at a meeting with only a small number of owners present, for instance, approval of the manner in which the managing agent has performed his duties in the previous year and the approval of the budget for the next year. Resolutions requiring special majorities would, however, be impossible to approve.
(c)French law allows resolutions important for the efficient management of the scheme, for instance, for the approval of the budget for the ensuing year to be approved by a majority of owners present at the meeting and not a majority of all members in the scheme. Owners who
749CEDH, 13 June 1979: Marckx v/ Belgique (Se´rie A no. 31); CEDH 23 September 1982, Sporrong et Lo¨ nnroth v/ Sue`de (Se´rie A no. 52).
750Cons. const., 16 January 1982: Lois de nationalisations no. 81–132 DC (GDCC Dalloz 2000 no.31; RDP 1982 p. 377 note Favoreu).
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do not attend the meeting can therefore not challenge such resolutions on the grounds that a quorum was not present at the meeting or that only a small majority of all the owners approved the resolution.
(d)The fact that French Law does not allow any resolutions to be adopted by means of a deed signed by the co-owners is justified by the fact that the legislator puts a premium on the arguments that are raised and the discussions that take place at a general meeting.
(e)By allowing voting by a show of hands, lip service is paid to the democratic principle of ‘one owner, one vote’. This principle is, however, neutralised by the requirement that the formal statements showing the results must also indicate the share value of the vote of owners who voted in favour of the resolution.
(f)The right to vote is not regarded as so fundamental that a person cannot appoint a proxy to exercise it on his or her behalf. The question concerning the number of proxies one person can hold is once again related to the poor attendance of condominium meetings. There is no substantial difficulty for the principal (by which we mean the owner who does not attend the meeting) to appoint a proxy and with a direction on how he should vote on all the proposals mentioned in the notification of the general meeting. Frequently, owners merely furnish the manager (syndic) with a blank document conferring powers of attorney on an unnamed person (to be designated at the beginning of the meeting), and allowing the proxy to vote in the way he considers fit (pouvoir en blanc). If one person (e.g. the chairperson) were entitled to hold 80 per cent of the total value of all the votes in the condominium by way of proxy, he would be able to pass all relevant resolutions on his own motion.
The rule rendering it impossible to confer a proxy on managers dates back to 1965. Under the Law on Apartment Ownership of 1938 the manager could be appointed as proxy, which often gave him the power to pass, on his own motion, all relevant resolutions. Nowadays, the main issue concerns whether a manager is entitled to designate proxies where he or she is given a blank authority by an owner to appoint whatever proxy he thinks fit to choose. To act in such a way, on behalf of the principal, is arguably inconsistent with the fact that no managing agent is entitled to be the proxy of an owner. However, the French High Court has decided that such is possible, provided the manager does not commit any fraud when choosing the proxies.751
751 Cass. Civ. 3e`me 20 November 1996 no. 95-10134.
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Germany
Operative rules
The Law on Apartment Ownership distinguishes between void and voidable resolutions (§§ 23 par. 4 and 46). Participation in the meeting is not a precondition to raising a judicial challenge to resolutions; even owners voting in favour of a particular resolution can later mount a legal challenge to it.752
(a)All owners must be notified of the meeting in a document, or by some other means suitable for its permanent reproduction in writing (CC §126b: Textform), no later than two weeks prior to the meeting unless an urgent matter has arisen (Law on Apartment Ownership § 24 par. 4).
As Antonio was not properly notified, the resolutions passed are voidable but not necessarily invalid ex lege.753 The resolution is void ex lege only if
the late notification of Antonio was specifically intended to make his participation at the meeting impossible.754 Otherwise, Antonio can seek
judicial intervention to revoke the resolution. He will be successful
unless the other owners can prove that the resolutions would have been passed even if Antonio had been duly notified.755
(b)In the original meeting, resolutions can be passed only if a majority of owners calculated according to co-ownership shares is present or represented by proxy (Law on Apartment Ownership § 25 par. 3). A resolution passed in violation of this quorum requirement is, however, not void ex lege, but merely voidable. In our opinion any challenge to such a resolution will be successful unless the other owners can
prove that the resolutions would have been passed with the proper majority.756 If the original meeting is not in fact quorate, a second
meeting can be called, which will be quorate irrespective of how many owners attend (Law on Apartment Ownership § 25 par. 4). The quorum of owners necessary for a valid meeting is laid down in the Law on
Apartment Ownership, but this can be departed from in the constitutive agreement of the scheme.757 It is even possible to include a
752See BayObLG NJW-RR 1988, 1168; Jennißen and Suilmann, WEG Kommentar, § 46
no. 23; dissenting: Ku¨ mmel, ‘Die Anfechtbarkeit nicht ordnungsgema¨ ßer Beschlu¨ sse
der Wohnungseigentu¨ mer’ (2001), p. 520.
753 BayObLG NZM 1998, 634. 754 BGH NJW 2011, 679.
755BayObLG ZMR 2004, 766; Palandt and Bassenge, BGB Kommentar, § 23 no. 20.
756Dissenting Palandt and Bassenge, BGB Kommentar § 25 no. 10.
757Jennißen and Elzer, WEG Kommentar, § 25 no. 66; Palandt and Bassenge, BGB Kommentar, § 25 no. 10.