Экзамен зачет учебный год 2023 / European Condominium Law

provision stating that the original meeting would have a sufficient quorum irrespective of how many owners attend.

(c)Valid resolutions are regularly passed by a majority of those present rather than an absolute majority of all the owners in the scheme,

because only a majority of votes of owners attending the meeting is required.758 Nevertheless, there are specific cases in which a resolution

requires the support of the majority of all owners and not just those present at the meeting. An example is a resolution for the expulsion of an owner from the scheme as a result of serious misbehaviour, which requires a majority resolution of all the owners in the scheme (and not only of those present at the meeting) (Law on Apartment Ownership § 18 par. 2).

(d)Outside a general meeting, resolutions are only valid if all owners consent in writing (Law on Apartment Ownership § 23 par. 3). If this

particular requirement is not met, some scholars consider that a resolution does not exist as such and is therefore void ex lege,759 while

others argue in favour of the existence of a voidable resolution that can be declared invalid in a court of law.760

(e)By law, the voting power at meetings is not determined by the size of co-ownership shares; rather, each owner is granted one vote, regardless of the number or size of the units he owns (Law on Apartment Ownership § 25 par. 2). The constitutive agreement of the scheme can provide differently and may for example provide that one vote is assigned to each unit, or that the weight of a vote is to be based on co-ownership shares in the scheme.

(f)As the Law on Apartment Ownership contains no rule against voting

by proxy, owners are allowed to appoint proxies of their choice to attend and vote at general meetings.761 Therefore, there is nothing to prevent

them appointing the chairperson as their proxy. The constitutive agreement of the scheme can, however, place restrictions on the ability to appoint the chairperson as their proxy by, for instance, restricting prox-

ies to specific persons (e.g. other owners or family members) or by restricting the number of proxies one individual may accept.762 Whether

758BayObLG NZM 2003, 444; Palandt and Bassenge, BGB Kommentar, § 25 no. 9.

759Jennißen and Elzer, WEG Kommentar, § 23 no. 73; Palandt and Bassenge, BGB Kommentar, § 25 no. 21.

760Ba¨ rmann and Merle, WEG Kommentar, § 23 no. 104.

761BGHZ 99, 90, 93; Lehmann-Richter, ‘Zur Zuru¨ ckweisung eines Stellvertreters in der Eigentu¨ merversammlung’ (2007), p. 741.

762BGH NJW 1993, 1329; Jennißen and Elzer, WEG Kommentar, § 25 no. 57.

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or not any scheme constitution may wholly exclude the right to appoint proxies has yet to be decided by the German Federal Court.763

Descriptive and metalegal formants

As the German Law on Apartment Ownership contains no detailed provisions pertaining to the legal consequences of irregular or void resolutions, this particular issue is the subject of continuing discussions between scholars and is only gradually being addressed by the courts.764

Greece

Operative rules

All the questions in the given scenario relate to the way in which the general meeting is convened, the quorum and the adoption of resolutions. The Law on Ownership of Storeys describes the general meeting as an organ of the condominium community of interest (art. 4 pars. 1 and 3). The by-laws of a particular scheme usually contain provisions regarding the above matters and problems arise if these matters are not regulated in the by-laws because the manner in which these matters are to be dealt with is controversial. According to one view, the provisions applicable to associations should be applied analogously to the way in which the general meeting is convened and conducted.765 The contrary view is that the provisions relating to associations are not, in essence, suitable and the above issues should be dealt with on a case by case basis in accordance with the general provisions of the law.766 Even so, supporters of the latter view concede that some of the provisions applicable to associations may constitute the basic principles on which the general meeting functions.

(a) Antonio’s first argument relates to the manner in which the general meeting is convened. In this context the general provisions on associations (CC arts. 95 and 96) will have subsidiary application in the absence of specific provisions in the by-laws767 or a specific agreement

763Ba¨rmann and Merle, WEG Kommentar, § 25 no. 76.

764Do¨ tsch and Hogenschurz, ‘Darlegungs und Beweislast im Wohnungseigentumsrecht – Erla¨utert am Beispiel des Beschlussanfechtungsklage nach § 46 WEG’ (2010), p. 297; Jennißen and Elzer, WEG Kommentar, § 23 no. 88 ff.

765Livanis, Floor Ownership, pp. 153 and 157.

766Bournias, Functioning; Tsetsekos, Individual Ownership, p. 229.

767Athens Court of Appeals 9718/1984 EDP 1986, 179 held that the by-laws may require notice to be given by registered post to the domicilium of the owners.

among the owners. Under the association provisions, the general meeting is convened in the most convenient way, for example, by written notification to the owners, telephone call, or by posting a notification of the meeting on the notice board of the condominium. The notification must be addressed to all the members of the general meeting and must reach the members at some point before the meeting is held.768 Thus, the manner in which Antonio was notified seems unproblematic.

(b)Antonio’s second argument concerns the quorum that is necessary to constitute a valid meeting. The quorum depends on the proposals to be discussed at the meeting. For proposals that require a unanimous resolution, all the co-owners must be present at the meeting; for issues that require a majority vote, the attendance of 50 per cent of the

members determined according to quotas would constitute a quorum (Law on Ownership of Storeys art. 4 par. 3).769

(c)Furthermore, whether unanimity or a simple majority vote is required will depend on the particular issue that must be decided.770

The majority in the general meeting is calculated proportionately to the quotas of the unit owners attending the general meeting (art. 4 par. 3). Thus, a majority, special majority or unanimous resolution can be adopted by the owners attending the meeting provided that the required majorities are reached.

(d)The prevalent view is that a resolution requiring unanimity or a special majority may be adopted without a meeting being held if all the

owners, or the required number of owners, respectively, sign a written document containing the resolution circulated among them.771 There are, however, authors that do not agree with this view.772

(e)If the resolution was adopted on a show of hands by owners not representing a majority of the quotas in the condominium, it would not be valid (CC art 789 b) unless either the by-laws of the scheme or an agreement among the owners allows the owners to adopt resolutions by a show of hands on the basis of ‘one owner, one vote’.

(f)With regard to Antonio’s final claim, it is accepted that the owners may be legally represented in the general meeting by proxies. Even the manager can be appointed as a proxy. Consequently, the fact that

768Athens Court of First Instance 2434/1974 EDP 229.

769Spyridakis, Condominium, p. 259

770See ibid. p. 263 for decisions requiring unanimity.

771Livanis, Floor Ownership, p. 154; Spyridakis, Condominium, p. 261.

772See Bournias, Functioning, Issue C p. 144.

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is not given on purpose, the meeting to which it relates is invalid.775 However, the telephone call suggests that the failure to give notice may have been inadvertent, in which case the meeting may still be valid.

(b)The default quorum for Irish private companies such as OMCs is three persons (Companies Act 1963, Sch. 1 Table A art. 54). This can be varied in the company’s own articles. If the quorum is not present at the start of the meeting, or following any short adjournment to enable a quorum to present itself, the meeting is invalid.

(c)Irish law makes a distinction between ordinary and special resolutions. The former requires the approval of a majority of the members present and entitled to vote. The latter must be passed by not less than three-quarters of the votes cast by such members, who must have received due notice of the intention to propose the motion as a special resolution (Companies Act 1963 s. 141). The articles of an OMC may make different provision for both categories of resolution.

(d)If the articles of association of the OMC authorise this, the company may have power to pass a resolution in writing signed by all the members for the time being entitled to attend and vote on the resolution at a general meeting without a formal deed being necessary

(Companies Act s. 141(8)(a)). There is no ground for challenge unless

the articles of Alexander’s OMC fail to make such provision.

(e) Voting at meetings is, by default, by a show of hands.776 The company’s articles may state otherwise.777 Ordinarily, each unit holder has one vote per unit. Any member at a meeting can demand a poll (s. 137). This would only be useful if the voting allocations in the Articles of Association were based on the percentage allocation of service charges. The chairman can ask for a poll at any time (Companies Act, Sch. 1,

Table A art. 59(a)) as where there is doubt about the result of a show of hands778 the facts do not allow a conclusion to be drawn one way or

the other as to the validity of the vote.

(f) Any unit holder as an OMC member can appoint the chairperson as their proxy provided the company articles of association so provide (Companies Act s. 136(2)). The appointment must be in writing (Table A art. 69). There appears to be nothing to stop the chairperson holding proxy votes for any particular portion of owners and no challenge can be mounted on this ground.

775Colthurst v La Touche and Another [2000] IEHC 14 para [16].

776Re Horbury Bridge, Coal, Iron and Waggon Co (1879) Ch D 109.

777Keane, Irish Company Law (2007), par. 25.44.

778Duggan v Bank of Ireland [1998] IEHC 124.

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lesser defects may lead to the resolution being open to challenge within a certain time frame.779

A failure to notify one of the unit owners of a general meeting renders any resolution passed at the meeting voidable at the instance of the owner in question.780 The latter can challenge any such resolution in the prescribed manner (CC art. 1137). Similarly, if the general meeting is held on a different day from the day indicated in the notification of the meeting, or if the meeting adopts resolutions on matters that were not listed as part of the agenda of the meeting, the resolutions are voidable.781 As this is tantamount to a failure to notify unit owners of proposed resolutions, this is logical.

Both legal doctrine782 and academic jurisprudence lean towards a position that gives greater scope for void resolutions. Resolutions with formal defects tend to be considered voidable. This would include resolutions adopted in contravention of rules pertaining to the proceedings at general meetings; resolutions exceeding the powers of the general meeting; and resolutions adopted without the required majorities. By contrast, resolutions containing defects related to the regularity with which meetings are held; resolutions with an impossible or illicit purpose; and resolutions causing prejudice to the rights of unit owners over their apartments or the common property are more likely to be considered void. On the basis of the foregoing, a resolution adopted by an irregularly convened general meeting783 (denying a particular unit owner the opportunity to participate) will be regarded as absolutely void. Moreover, a resolution adopted by an irregularly constituted general meeting because of an incomplete indication of the day, place or time of the meeting784 is also void.

Metalegal formants

It is important to note that the notion of nullity of resolutions is progressively narrowed because of the frequency by which resolutions are challenged and the increase in the number of unit owners and

779The time limit is thirty days after the adoption of the resolution for dissenting owners and thirty days after notification of the resolution for absent owners (CC art. 1137

784Cass 12.05.1967, no. 993 specified that a failure to notify a unit owner does not affect the validity of resolutions passed if it is possible to prove that the unit owner did in fact know the venue and time of the meeting.

common facilities in increasingly larger condominiums. The limitations to the manner in which the validity of a resolution may be challenged will certainly serve to decrease the number of disputes. In particular, the thirty-day time limit leads to a sifting process in the civil justice system that will ideally reduce the number of spurious condominium lawsuits.

The Netherlands

Operative rules

(a)A general meeting must be convened by written notification sent to the address or chosen domicile of the owners at least fifteen days prior to the meeting, not counting the day on which the owners are notified or the day of the meeting (Model By-laws 2006 art. 45 par. 8). If this formality is not observed, every owner may, within one month after he became aware of the resolution, request the cantonal judge to nullify the decision on the ground that it is contrary to statutory provisions, or provisions in the by-laws regulating the notification of meetings (CC article 5:130). In this case, neither the requirement that the notification must be in writing, nor the notification period was observed.

(b)Neither the CC nor the Model By-laws provide that a minimum number of owners must be present or represented at the meeting before ordinary majority decisions can be validly adopted. However, the Model By-laws 2006 do require a specified quorum and special majorities for specific types of decisions. For example, a majority of at least two-thirds of the votes at a meeting at which at least two-thirds of the total votes are present or represented is required for the adoption of a resolution to enter into contracts for an amount that exceeds the maximum amount set by the general meeting (Model By-laws art. 52).

Resolutions that do not require a special majority in the by-laws or the CC are adopted by a simple majority of votes. A majority vote is defined as: ‘more than half of the votes cast at the meeting; blank votes, invalid votes and the votes of owners who abstain will not be calculated as votes validly cast’ (Model By-laws art. 50). The value of the votes is generally calculated according to quotas, unless it has been specified in the deed of subdivision that each owner has one vote.

(c)The fact that the resolutions were approved by the majority of owners present or represented at the meeting, and not by a majority of all the unit owners, is irrelevant. All that is relevant is that the type of resolution adopted was adopted by the required majority.

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(d)A resolution to which all owners have consented in writing, including consent by fax or e-mail, is valid (Model By-laws art. 50 par. 3). Consequently, no valid resolutions can be taken without a general meeting being held, unless they are taken unanimously. Therefore, the resolution is valid only if the written deed is signed by all the owners.

(e)The adoption of a resolution by a show of hands would only be valid if the owners who vote in favour of the resolution represent the majority calculated in quotas required for that particular resolution. If the required majority in quotas is not attained, the resolution is invalid on the ground that it is contrary to the deed of subdivision (including the by-laws and the articles of association) and therefore null and void (CC art. 5:129 read with 2:14). If on the other hand, the decision is adopted with a correct majority (with votes representing the required majority of the quotas), but by following the wrong procedure, the decision is also contrary to statutory provisions or provisions in the by-laws regulating the passing of resolutions. In such a case the resolution is valid in principle but may be nullified by the cantonal judge upon request of an owner (CC art. 5:130).

(f)Legally, there is no limitation on the number of proxies that a single person may collect. The decision is valid.

Descriptive formants

The above rules are an adaptation of the provisions of the Dutch Civil Code on the meetings of associations to the general meetings held in apartment ownership schemes and specific provisions of the Model Bylaws of 2006.

Metalegal formants

Older versions of the Model By-laws, for example, the Model By-laws 1983, provided that no valid resolutions could be taken at a general meeting where owners representing less than half of the total number of votes reckoned in share value was present or represented. In such a case, a second meeting was to be held within two weeks after the first meeting, at which valid resolutions could be adopted regardless of the number of owners present or represented at the meeting.

The current Model By-laws of 2006 do not include a quorum requirement because it was found that in practice many meetings could not be constituted validly on account of lack of a quorum. The Model By-laws therefore adopted the system that simple majority resolutions can be