Экзамен зачет учебный год 2023 / European Condominium Law
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taken regardless of the number of votes present or represented at the meeting, whereas important decisions can only be adopted if the required quorum and special majority are complied with.
The proceedings to nullify a decision must be brought before the cantonal judge, grosso modo, namely, a judge who handles small claims and specific areas of law (such as employment contracts and leases) in non-contentious proceedings, whereas proceedings to have a decision declared null and void must be brought before the District Court.785 This is an extremely fine distinction and the logical consequence is that doubt over the correct procedure leads to both proceedings being followed. For this reason the above distinction has been criticised.786 It is also worth noting that a further distinction exists for proceedings challenging decisions of legal persons, such as companies, creating even further confusion.
Norway
Operative rules
The Act contains several rules applicable to general meetings. The rules partly deal with matters of procedure (e.g. convening of general meetings and the right to attend) and matters of substance (e.g. what kinds of resolutions may be taken). There are no rules as to how to invalidate a decision, but co-owners may request the court to consider challenges to decisions according to ordinary rules on civil litigation. It is generally held that procedural errors may render a decision voidable if the error could have had a material influence on the outcome.
(a)A general meeting must ordinarily be convened by a written notice sent to every owner at least eight days, but not more than twenty days, prior to the appointed time of the meeting. If necessary, an extraordinary meeting may be convened by only three days’ notice. Depending on the circumstances, an error of the kind described here may have influenced a decision by the meeting and thus make the decision voidable.
(b)There are no rules on a required minimum attendance (quorum). Thus, a meeting attended by only 40 per cent of all the owners would be a validly constituted meeting.
(c)Decisions may be taken by a majority (or a qualified majority respectively) of the votes represented at the meeting. There are,
785 Mertens, ‘Appartementen’, chapter VII. |
786 Ibid. |
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however, some decisions that need the consent of all owners or of all the owners affected by the decision.787
(d)Certain resolutions may be taken only at a general meeting.788 In these cases, approval without a meeting is not sufficient. A question of voidability will normally arise only if some of the owners have changed their mind (if not, the decision may easily be validated by a subsequent formal meeting).
(e)In a scheme consisting exclusively of owned residential units, the principle of one vote per unit applies (Law on Owned Units of 1997 s. 37(1)). In all other commercial or mixed-use schemes, the weight of an owner’s vote depends on his or her quota. An error of this kind may entail the consequence that the decision was not taken with the necessary majority and this will per se render the decision voidable.
(f)Attendance and voting may be by proxy. There is also no restriction on the number of owners one proxy may represent (Law on Owned Units of 1997 s. 33(3)). The proxy may well be the chairperson of the meeting. Rules on disqualification as a result of conflict of interests apply to proxies as well as to owners (s. 37(3)).
Descriptive formants
The provisions of the Law on Owned Units of 1997 are to a certain extent inspired by legislation on housing cooperatives (which were in turn inspired by legislation on limited companies), but the provisions on schemes consisting of owned units are intentionally kept briefer and simpler. Legislation and court practice relating to other forms of community schemes or to companies and other corporations may provide guidelines for the interpretation of the Law of 1997.
Metalegal formants
It has been thought important to have some formal rules on decisionmaking, even if they are not very complicated, because schemes consisting of owned units are often managed by non-professionals. A rule limiting the accumulation of proxies deserves some consideration, at least in relation to condominiums with one or more residential sections, as there may be a risk of abuse of power by any officers of the scheme.
787Decisions to sell or lease the entire, or an essential part of, the scheme, or entailing a substantial change in its character, require the consent of all owners (Law on Owned Units s 30(3)).
788See Law on Owned Units s. 30(2).
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Poland
Operative rules
(a)In large communities under the default management system, at least seven days’ written notice specifying the date, time, place and the agenda of the meeting is required for convening a meeting of the community of owners. Furthermore, proposed alterations to any rights and obligations of the unit owners must be listed (Law on Unit Ownership art. 32). If any owner wishes to amend the agenda, new notices must be given to each owner with a supplemented agenda attached. According to academic commentaries the effect of serving an invalid notice on unit owners is that the meeting has not in fact been sched-
uled and is deemed never to have taken place, so that any resolutions adopted by it are invalid.789 There are no default statutory rules that
regulate general meetings and their notification in smaller communities.
(b)The default statutory management rules do not require a quorum of owners to be present at a meeting for the meeting to be quorate. However, it is important to note that in larger schemes all resolutions are passed by a majority vote based on share value of the total number of owners in the scheme. In smaller schemes, decisions in matters of extraordinary management need the unanimous consent of all the owners in the scheme. Votes may be collected during a meeting or after the meeting. If the meeting was not attended by owners holding the required majority of shares in the community, the management board may collect the votes necessary for reaching the majority concerned by visiting the absentee owners and requesting them to vote on the matter.
(c)As stated in (b), resolutions must be approved by the majority of the total number of owners in a scheme based on share value (Law on Unit Ownership art. 23 s. 1) or all owners (in small communities in matters of extraordinary management) regardless of the number of owners who may have attended the meeting.
(d)Passing a resolution may take place by means of signing a document that contains the resolution. If no meeting was scheduled, the management board (or manager) may collect votes by visiting individual owners and collecting their signatures on a document containing the text of the resolution.
789 Doliwa, Prawomieszkaniowe, p. 780.
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(e)The default statutory management rules applicable to large schemes provide that owners with a share value of at least one-fifth of the total shares in the scheme may demand voting on the basis of one vote per owner (Law on Unit Ownership art. 23 s. 2). If not, majority resolutions must be passed by owners holding a majority of the total shares in the condominium.
(f)Voting at a general meeting is by person or by proxy and any owner is entitled to appoint a proxy to attend and speak at the meeting and to vote in his place. As the matter of proxies is not regulated in the Law on Unit Ownership, recourse to CC art. 108 is allowed. This provision deals with proxies or representatives representing principals in the conclusion of legal transactions. It seems that this provision could exclude the possibility of there being only one proxy for too many owners.
Descriptive formants
The rules regulating statutory default management are more detailed in relation to large condominium communities than they are in relation to small communities. In the latter case, management is conducted according to general rules of the CC on co-ownership. There are no provisions as to the procedure for calling a meeting, giving notice, and so on. Provision in this regard is seen as unnecessary given that the community is small and all co-owners are expected to interact directly, or, if not, to hire a professional manager or to introduce rules of contractual management.
Metalegal formants
The Law on Unit Ownership does not contain clear provisions on the notification of general meetings. It is unclear what proof should be required on the part of the board or the manager to show that the notices were actually delivered to unit owners. The obvious solution would be registered post, but this is both costly and time-consuming. Moreover, it could be argued that posting the information on a bulletin board that is customarily read by the unit owners should suffice and indeed would facilitate convening meetings.
The problems caused by the non-attendance at meetings by unit owners are overcome by the possibility of members of the management board (or the manager) visiting owners to persuade them to vote for a resolution that did not secure the required majority at a meeting. This is, unfortunately, not subject to a time frame. In general, the rules
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governing meetings are underdeveloped and contain many gaps. Moreover, management bodies do not interpret these rules uniformly.
Portugal
Operative rules
(a)A general meeting is usually convened by the manager, but it can also, in appropriate circumstances, be convened by owners holding units representing more than 25 per cent of the share values in the condominium (CC art. 1431(2)). At least ten days’ notice (specifying the date, place, time and the general nature of the business to be discussed) is required to convene an ordinary general meeting (CC art. 32(1)); any shorter notice period must be agreed upon by all owners entitled to attend the meeting. The notice may be sent by registered post addressed to the domicilium of the owner (art. 1432(9)) or given in person to the owner, requiring the owner to sign an acknowledgement of receipt (art. 1432(1)). Other means of notice (for example by telephone) must be accepted by all owners entitled to attend the meeting. Only matters placed on the agenda and previously notified to the owners may be discussed and voted on at the general meeting.
As Antonio received a phone call (instead of a written notice) the evening before the meeting (instead of on ten days’ prior notice) the resolutions are rendered voidable on the ground that it is in conflict with the statute, the constitutive document or the by-laws of the scheme and challengeable in court within sixty days after the resolution was taken (art. 1433 (1)). Only owners who voted against or abstained from voting are allowed to challenge voidable resolutions. In any case, resolutions can be implemented provisionally, unless the court suspends implementation. However, it is generally accepted that
if Antonio is present at the meeting, despite the irregularities, he is not entitled later on to challenge the validity of the resolution.790
(b)No business may be transacted at any general meeting unless a quorum is present, in person or by proxy, at the time when the meeting proceeds to business. In Portugal, the quorum is constituted by the presence of owners or proxies representing 50 per cent of the total number of units in share value (art. 1432(3)). If a quorum is not present within half an hour after the time appointed for the meeting, the
790 Passinhas, Assembleia, p. 253.
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meeting will be adjourned to the same day in the next week at the same place and time (art. 1432(4)). At the adjourned meeting, the owners present in person or by proxy will constitute a quorum, provided they hold more than 25 per cent of the share value in the building (art. 1432 (4)). Any resolutions passed without a quorum being present are invalid. From the above it is clear that Antonio could challenge the resolutions if the 40 per cent in number of the owners present do not represent at least 50 per cent of the total share value in the scheme.
(c)In Portugal, resolutions need to be approved by the required percentage of all the owners. Antonio could therefore challenge a resolution that was approved by the required majority of owners present or represented at the meeting but not by the required majority of all the owners in the scheme.
(d)Resolutions must be approved in the general meeting. A written deed signed by the majority of the owners is not a valid resolution and is not enforceable against any of the owners. Portuguese law assumes that owners will meet and try to reach a common opinion, and then take decisions as a group. Therefore, Antonio would not need to challenge these resolutions, because they are not enforceable against him. An exception exists in the case of a unanimous resolution. The written approval of owners notified but not present at the meeting may be sought in order to obtain a unanimous resolution (art. 1432(7)).
(e)Voting at a general meeting is decided by a voting by poll, which means that the weight of an owner’s vote is determined by his quota (CC art. 1430(2)). This rule is mandatory, and thus, resolutions cannot be approved by a show of hands. Such a resolution is null and void. Antonio does not need to challenge these resolutions, because they are not enforceable against him.
(f)Voting at a general meeting is in person or by proxy and any owner is entitled to appoint a proxy to attend and speak at the meeting and to vote on his behalf (CC art. 1431(3)). There is no restriction on the number of proxies any one person (such as the chairperson or the manager) is entitled to hold. A chairperson with 80 per cent of the value of the votes by proxy could thus pass any resolution except unanimous resolutions. If 80 per cent of the owners trust him, it might be assumed that he will take justifiable and fair decisions.
Descriptive formants
The responses above are mainly based on CC arts. 1430 – 1432. Particular reference must be made to art. 1432(3), which stipulates that unless
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provided otherwise, decisions are always taken by a majority in value of all the quotas in the building (por maioria dos votos representativos do capital investido).
Metalegal formants
(a)It is generally accepted that owners should be given adequate notice of general meetings so that they can prepare themselves for the meeting, although the time of the prior notice can be reduced if the owners agree. Owners have a right to advance notice, which means that the manager cannot shorten the period of notice due to alleged urgency or the specific nature of the meeting. The fact that the notice must be given by registered post to the domicilium of the owners seems to be outdated and expensive although watered down by the possibility to serve the notice personally. In my opinion, notice by e-mail ought to be considered valid if the manager can show acknowledgement of receipt.
(b)The fact that an ordinary resolution must be approved in the first meeting by a majority in share value of all the owners in the scheme (por maioria dos votos representativos do capital investido) makes a valid resolution in a first meeting almost impossible. Managers are normally forced to call a second meeting, where 25 per cent of the owners by share value constitute a quorum and decisions are approved by a majority vote of those present (CC art. 1432(4)). Therefore, a reduction of the quorum requirement is proposed so as to facilitate decisionmaking at general meetings, particularly in larger schemes where timely decision-making is of the utmost importance.
(c)A movement to allow decision-making by the signing of a written document containing the resolution was introduced to facilitate the passing of unanimous resolutions (CC art. 1432(7)). As a general rule, however, resolutions have to be taken in the general meeting, where the pros and cons of a proposed resolution can be discussed in order to arrive at a common informed decision.
(d)Voting by poll is directed at recognition of the proportionate proprietary rights of individual owners in the scheme. Therefore, the weight of the voting right of an owner who holds a co-ownership share of 15 per cent in the scheme should be more than the weight of an owner who holds only a co-ownership share of 5 per cent in the scheme. The premise is that an owner with a 15 per cent co-ownership share should, because of a greater economic interest in the scheme, have a greater say in the management of the building directed by
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resolutions taken at general meetings. Voting is therefore based on economic investment in the condominium rather than on the democratic principle of ‘one owner, one vote’.
(e) Restrictions on persons who can be appointed as proxies do not exist in Portugal. I agree that the accumulation of proxies in the hands of one person impairs democratic discussion of resolutions at a general meeting and leads to the unhealthy accumulation of power in the hands of one person. Some restrictions on persons who can be appointed as proxies would also be a good idea.
Scotland
Operative rules
(a) Under TMS, notice for a meeting must be given at least fortyeight hours before the meeting is due to take place.791 On the other hand, a ‘scheme decision’ can equally be reached without a meeting, such as by going door to door asking for the support from owners.792 However, a decision, whether at a meeting or otherwise, can only be reached by the majority of all owners in the building, regardless of how many of them are present at a meeting. Generally speaking, the actual instance of a meeting is not essential or decisive in any sense. More than half of the owners must agree to a proposal, before, during or after a meeting, in order for a scheme decision to be reached. To put it bluntly, whether there was a meeting or not does not affect anything other than perhaps what the attendees think of the issues being raised or discussed. Having general meetings is not a procedural or substantive part of the operation of TMS.
Under DMS, the status of a general meeting is much more important, and regulated by more provisions. The manager must send a notice of the meeting to each member no later than fourteen days before the date of the meeting.793 However, any ‘inadvertent failure’ in this regard will be excused.794 Presumably, if the manager can prove that the failure to notify Antonio in this case is an inadvertent oversight, the telephone call was more than enough as a last-minute measure to rectify such a mistake.
791 Tenements (Scotland) Act 2004, Rule 2.6. |
792 Rule 2.7. |
793Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009, Rule 9.4.
794Rule 9.5.
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(b)If the scheme has no more than thirty units, the quorum of the
general meeting is 50 per cent of all votes allocated. If the scheme has more than thirty units, the quorum is 35 per cent.795 If there is no
quorum present twenty minutes after the meeting is scheduled to
begin, the meeting will be postponed to a date not less than fourteen nor more than twenty-eight days later.796 Notices will have to be sent
again to members advising the rescheduled meeting. However, the postponed meeting need not be quorate.797
(c)In terms of the decisions to be made at a general meeting, there are effectively two different types of majority required. The first is simply referred to as a ‘majority’. This is the majority of the owners casting
votes at the general meeting (providing that the meeting begins with a quorum).798 The second threshold is known as a ‘special majority’. This
is the majority of all votes allocated (i.e. all owners) in the scheme,
rather than just those present at any given meeting. Generally speaking, the plain ‘majority’ is used for everything.799 A ‘special majority’ is
reserved for two things: (a) payment out of reserve fund and (b) using money held on behalf of the association to carry out improvements or alterations to, or demolition of, scheme property (not being
improvements, alterations or demolitions reasonably incidental to maintenance).800
(d)There is no requirement for everyone to sign a written document. The only requirement in terms of documentation is for the manager of
a DMS to keep a record (i.e. minutes) of the meeting and to send a copy of this within twenty-one days to each member.801
(e)Voting on any proposal is by show of hands; but the convener may determine that voting on a particular proposal is to be by ballot.802
However, there is no provision as to calculation of votes by quota. The default statutory position is one vote for each unit.803 This can of
course be changed in the founding documents of the scheme, or by a deed of variation registered later with the approval of a general meeting.
(f)A vote can be cast by the owner of a unit, or by a person nominated in writing by an owner to vote. However, the proxy cannot be the
795 Rule 10.1. |
796 Rule 10.2. |
797 Rule 10.3. |
798 Rule 11.3. |
799The possibly more common term ‘simple majority’ is not used by the Scottish legislation.
800Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009,
Rule 13.1. |
|
|
801 Rule 12.3. |
802 Rule 11.4. |
803 Rule 11.1. |
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manager.804 There is no prescribed limit or restriction on how many units one proxy can represent.
Descriptive formants
All these rules regarding general meetings, quorum and voting seem to form a reasonably clear, but also relatively flexible framework. There are a few clear instances of compromises being given to accommodate for the nature of an apartment ownership scheme, such as the explicit statutory exoneration of ‘inadvertent failure’ to serve notice on some owners.
Metalegal formants
But, of course, everything so far is only as good as the paper it is written on. Until there are operating schemes in Scotland, it would be too early to judge this system, which seems to be tailor made for apartment ownership regimes.
Slovenia
Operative rules
(a)A meeting of apartment owners must be convened by a written notification to the owners at least fourteen days prior to the appointed time for the meeting (Law on Housing art. 36). The notice must be placed in the mailbox of the owner within the apartment building and also be published in a place accessible to all apartment owners (usually a notice board in the entrance hall). Importantly, however, it is not possible to challenge a decision that was adopted by the required majority on the basis of a technical fault in the notification procedure.
(b)It is not necessary for a pre-ordained number of owners to be present or represented at an owners’ meeting. The only requirement is that the number of owners present or represented constitutes a quorum required for the type of decision in question (art. 37(2)).
(c)The fact that the resolutions in question may have been approved by the majority of owners present or represented at the meeting, as opposed to a majority of all the unit owners, is irrelevant. The only pertinent question relates to whether the required majority of holders of co-ownership shares were present at the meeting or not.
804 Ibid.,