Экзамен зачет учебный год 2023 / European Condominium Law
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(d)Resolutions may be adopted either at a general meeting of apartment owners, or alternatively by the signing of a written document containing the resolution (Law on Housing art. 34). The second form of decisionmaking is regulated by the Law on Housing (art. 35) and the Rules on Management (art. 12). The document concerned must contain the text of the proposed resolution along with an explanation, the name of each owner, the date of his signature and information as to the majority required to adopt the resolution in question. The resolution is adopted
if it is signed by those apartment owners who hold the required majority within three months after the first signature has been appended.805 The
Rules on Management provide for two possibilities: either the same document is presented to all the owners, who must sign it consecutively, or each owner is sent his own copy of the document, which must be collected subsequently (art. 13(1)).
(e)Voting by a show of hands is valid provided that the apartment owners voting in favour of the decision hold the required majority of co-ownership shares.
(f)The number of proxies that a person may collect is not limited. Thus, the decision is valid notwithstanding the fact that only the view of the chairperson (who holds almost all the proxies) is taken into account.
Descriptive formants
The above answers are based upon the provisions of the Law on Housing, which regulates the decision-making procedures in some detail. In 2008 the Law on Housing was amended in order to reduce the number of instances where a unanimous decision is required to a minimum, introducing a decision-making process by means of a 75 per cent qualified majority.
Metalegal formants
Almost all larger apartment ownership schemes encounter problems with the adoption of resolutions. The general apathy of owners towards attending general meetings makes it difficult, and often almost impossible, to reach the required quorum at a meeting. This is the main reason why the legislator introduced the possibility that after a meeting which was not quorate, a resolution may still be adopted by the subsequent signing of a written document that contains the resolution.
805 See also Court of Appeal Ljubljana I Cp 758/2010, 5 May 2010.
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South Africa
Operative rules
(a)The model rules require at least fourteen days’ prior notice of an ordinary general meeting (Ann. 8 r. 54(1)), and at least thirty days’ prior notice for a special general meeting convened for the purposes of passing a special or unanimous resolution (Ann. 8 r. 54(7)). However, a general meeting or a special general meeting may be called on shorter notice if so agreed by all the persons entitled to attend (Ann. 8 r. 54(6)), or if the board considers it necessary because of the urgency or specific nature of the matter (Ann. 8 r. 54(7). The notice must be sent by pre-paid registered post to the address of a member’s section in the scheme or to a physical or postal address that a member has chosen in writing for the purposes of such notice (STSMA s. 6(3)). A notice may also be sent to a member by fax or e-mail (STSMA s. 6(4)). Other means of notice (e.g. by telephone) are only possible once the above rule has been amended by unanimous resolution. Inadvertent omission to give notice to any person entitled thereto, or their non-receipt of notice, would not invalidate any proceedings at any general meeting (Ann. 8 r. 54(5)). I am not sure whether the informal and short notice given to Antonio would invalidate the resolutions passed at the general meeting.
(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 (Ann. 8 r. 57(1)). In South Africa, determining a quorum depends on the number of units in a particular scheme. In schemes of ten units or less a quorum is constituted by the presence of 50 per cent of the units in share value. If the scheme consists of more than ten but less than fifty units or of fifty or more units, owners entitled to 35 per cent or 20 per cent of the total votes respectively must be present or represented (Ann. 8 r. 57(2)). If a quorum is not present within half an hour of the time scheduled for the meeting, the meeting will be adjourned to the same day in the next week at the same time and place. If, at the adjourned meeting, a quorum is not present within half an hour of the scheduled time, the persons present in person or by proxy and entitled to vote constitute a quorum. From the above it is clear that the 40 per cent presence at the meeting would suffice for all schemes with more than ten units. Resolutions passed without a quorum are invalid.
(c)South African law does not make provision for certain resolutions to be approved by an absolute majority (in number or share value) of all
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the owners in the scheme. Resolutions need only be approved by the required percentage of the owners present or represented at the meeting (implied from Ann. 8 rr. 60(1) and (2) and 61).
(d)In order to facilitate the adoption of special and unanimous resolutions, the Sectional Titles Act provides that, besides proceedings at a general meeting, unanimous and special resolutions may also be approved if all or 75 per cent of all owners in number and value respectively agreed in writing to the resolution by signing a written document containing the resolution (s. 1 ‘special resolution’ and ‘unanimous resolution’). This procedure is not authorised for majority resolutions.
(e)Voting at a general meeting is usually conducted by a show of hands where each owner of a unit has one vote. However, any person entitled to vote, may, either prior to or on the declaration by the chairperson of the result of a vote on a show of hands, demand a voting by poll, which means that the weight of an owner’s vote is determined by his quota (Ann. 8 r. 60(1)). Moreover, the chairperson may at his discretion change the voting system from a show of hands to a voting by poll (Ann. 8 r. 62).
(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 indeed to vote in his place. The only restriction is that the proxy must not be the managing agent or any of his employees, or an employee of the management body (Ann. 8 r. 67(3)). There is no restriction on the number of proxies one person (e.g. the chairperson) is entitled to hold. A chairperson with 80 per cent of the value of the votes by proxy could thus pass any resolution except a unanimous resolution. The Sectional Titles Schemes Management Act of 2011 has perhaps gone too far by providing that one person must not act as proxy for more than two members (s. 6(5)).
Descriptive formants
The rules regulating some of the above matters (namely, the period of notice, the quorum requirement, that resolutions should be approved by the required number of person present at the meeting and that voting shall be on a show of hands unless a poll is demanded or the chairperson decides to change the manner of voting to a poll) have not been changed since their promulgation in the Regulations in 1988. This shows that these provisions have been applied satisfactorily in practice. In order to facilitate decision-making in larger schemes where
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attendance at general meetings was mediocre to poor, the legislature decreased the number of owners required for a quorum to levels which made governance of the scheme more efficient. The restrictions on persons who can be appointed as proxies were introduced only in 1991 and 1997,806 and the restriction that one person cannot act for more than two members only in 2011.
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. It is also accepted that the time of the prior notice can be reduced if all the owners agree, or if the management board consider it necessary because of 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. Fortunately, provision is now made for notice by way of fax or e-mail.
(b)The reduction of the quorum requirement was obviously designed to increase decision-making at general meetings, particularly in larger schemes where timely decision-making is of the utmost importance. It has, however, been criticised because it makes decision-making at general meetings less democratic. This is a tricky balance to strike.
(c)The movement to allow decision-making by the signing of a written document containing the resolution was introduced to facilitate the passing of special and unanimous resolutions on the model provided in company law. This mechanism should be extended to cover ordinary majority resolutions also.
(d)Allowing voting by a show of hands on every occasion to be changed to a voting by poll seems to be for the protection of owners with larger quotas and therefore larger economic interests in the scheme. It conflicts with democratic principles, which regard sectional owners as part of a community where community interests should sometimes take precedence over individual interests – for example, in the election of the management board.
(e)The accumulation of proxies in the hands of one individual impairs democratic discussion of resolutions at a general meeting and leads to the unhealthy accumulation of power in the hands of one person. But restricting the number of proxies one person can accept to two may
806 See GN R2653 of 8 November 1991 and GN R 1422 of 31 October 1997.
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make the management of larger schemes difficult and time-consuming because of the difficulty in making meetings quorate.
Spain
Operative rules
(a) The President must give at least six days’ prior notice to call an ordinary general meeting (Law on Horizontal Property art. 16.3), which must take place at least once a year (art. 16.1).807 In the case of a special general meeting, the notice must be sufficient to give all interested parties sufficient opportunity to attend. However, the general meeting can take place even without the president’s call if all of the owners meet and decide to hold a meeting (art. 16.3). The meeting can be convened by either the president or by owners who represents 25 per cent of all the owners in number or in value calculated according to quotas (art. 16.1 and 2). The notice must be sent to the permanent address of the owner previously communicated to the secretary in a way that confirms its receipt by the owner (for example recorded delivery) (art. 16.2 read with art. 9). Spanish Courts (especially the Constitutional Court) have relaxed this requirement and hence it suffices if the owner concerned knew there was to be a general meeting.808 In our case, Antonio admits he was informed, even if the notice failed to be 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 he or she was not able to attend the meeting.809 In the event that it is impossible to notify the owner at his domicilium address, it will probably be sufficient if the notice is placed on the condominium’s notice board.
(b) A new quorum requirement was introduced by the amendment of the Law on Horizontal Property in 1999,810 which now requires the attendance of a majority of 50 per cent of all owners in number and share value for the first meeting (primera convocatoria). If this quorum is
807The expression ‘at least’ prompted commentators to suggest that the by-laws could provide, for example, that meetings could be held also twice a year. See Gonza´lez Carrasco, Comentarios, p. 583.
808Constitutional Court Decisions 72/1990 of 23 April 1990 and 56/1985 of 29 April 1985.
809Supreme Court Decisions of 25 November 1988 (RJ 1988\8712), 17 June 1993 (RJ 1993 \4841), 29 October 1993 (RJ 1993\8165) and 23 February 1996 (RJ1996\1588).
810Law 8/1999 of 6 April 1999 amending Law 49/1960 on Horizontal Property.
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not reached within half an hour, the attendance of any number of owners at the second meeting (segunda convocatoria) is considered sufficient to constitute a quorum (art. 16.2 par. 3). The second meeting will take place at the place, date and time as mentioned in the notification of the first meeting, which could provide that the second meeting will take place half an hour after the appointed time of the first meeting. If this does not happen, a new meeting must be convened within eight days after the failed meeting, and the required notice in this case must be given to the owners at least three days beforehand (art. 16.2 par. 4). This means that an attendance of owners representing 40 per cent of quotas will not be sufficient to make the first meeting quorate but would suffice for the second meeting (art. 17.7).
(c)This will only apply to special resolutions, which require an overall majority of all the owners in the scheme in number and in value for its adoption (arts. 17.1-2). Examples of such resolutions are resolutions authorising the installation of telecommunication services or clean energy infrastructures which require either a 60 per cent or a 33 per cent majority respectively of all the units in the scheme in number and value. This would obviously not apply to unanimous resolutions or for ordinary resolutions (for example for the passing of house rules), In the latter event it will suffice if a majority of the owners present or represented at the meeting votes in favour of the resolution at a meeting with a valid quorum (art. 17.7).
(d)In order to facilitate the adoption of unanimous resolutions, owners who were informed of the meeting but did not attend are deemed to have voted in favour of the resolution if they did not raise a formal objection to the resolution (art 17.8). Similarly, if the required majority for a special resolution cannot be obtained, the court can be approached for an order based on fairness and equity (art 17.7 par. 2). Spanish law does not recognise that a unanimous or special resolution can be adopted by the required number of owners signing a document containing the resolution.
(e)In the absence of any provisions on the manner of voting, voting by way of a show of hands will be permissible.811 However, many resolutions require, for their validity, a majority in number as well as in share value represented. Therefore, even if voting is by a show of hands the executive board (president, secretary and manager) must ensure that
811 Gonza´lez Carrasco, Comentarios, p. 550.
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the owners voting in favour of a particular resolution also represent the required majority in share values for the resolution in question. So, for example, a resolution requiring a simple majority in share value will not be passed where seven out of ten voters raise their hand in favour, but the combined share value of these voters is only 30 per cent.
(f) Owners may attend the general meeting personally or by proxy (art 15.1). A document signed by the owner appointing a proxy is sufficient for this purpose. There is no restriction on the number of proxies one person (e.g. the chairperson) is entitled to hold. A chairperson holding 80 per cent of the value of the votes by proxy could thus pass just about any resolution. The only restriction on voting by proxy is where a
particular resolution represents a conflict of interest between an owner and the proxy.812
Descriptive formants
The rules regulating the period of notice; the quorum requirement; and that resolutions should be approved by the required number of persons present at the meeting representing the required quotas; as well as the unanimity rule where relevant, have all been adjusted by the amendment of the Law on Horizontal Property in 1999, especially with regard to the unanimity requirement in order to adopt certain resolutions. In order to facilitate decision-making in schemes where there is poor attendance of meetings, the legislature has now decreased the number of owners required for a quorum to levels that make the governance of condominium schemes more practicable.
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. The timing of any prior notice can also be reduced if the owners agree, or if the executive board considers it necessary because of urgency. Giving notice by telephone and especially by e-mail should both be considered as possible valid methods of notification in future. The acknowledgement that a notice on the billboard of the condominium could constitute sufficient notification is a very practical solution but would cause problems where owners have bought units for investment purposes and do not reside in the condominium.
812 Gonza´lez Carrasco, Comentarios, pp. 559–60.
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(b)The reduction of the quorum requirement by the 1999 amendment was designed to facilitate decision-making in cases of poorly attended general meetings.
(c)and (d) A majority in number as well as value according to quotas is usually required to pass resolutions that affect common elements and the structure of the building. The ability to obtain unanimity, deeming as positive votes the votes of owners who did not attend the meeting but were informed of the adopted resolutions and did not formally challenge the resolutions, was introduced to facilitate the passing of special and unanimous resolutions. However, commentators take exception to the fact that this facility has not been extended to resolutions that require a simple majority. Moreover, they consider that the provision makes it easier for the owners opposed to any resolution to veto it, as before the 1999 amendment it was necessary to bring an action in court against the resolution, while it is currently sufficient formally to declare one’s disagreement.813
(e)Spanish law does not regard voting by a show of hands as a problem, because voting by quota is the determining factor in all cases in which unanimity or a special majority is required. This shows that Spanish law prefers to safeguard the financial interests of owners with the largest share values in the scheme, rather than the social interests of the community of owners by allowing the democratic system of ‘one unit, one vote’.
(f)The accumulation of proxies in the hands of one person impairs democratic discussion of resolutions at a general meeting and leads to an unhealthy accumulation of power in the hands of one person. The lack of a restriction of a maximum number of proxies probably results from owners frequently failing to attend the meetings, and yet the condominium scheme has to be managed by someone.
Sweden
Operative rules
A decision of the general meeting that is not in accordance with the legislation or the by-laws can be set aside or altered by a court decision (Law on Real Estate Cooperatives Ch. 9 s. 14 read with the Law on Cooperative Associations Ch. 7 s. 17). This is also true if the decision
813 Carrasco Perera, Comentarios, p. 609.
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fails to meet formal requirements. Each member, and the management board, has the right to approach the district court within three months after the decision concerned has been passed.
(a)The notice to convene a general meeting must be sent to members not more than four weeks and not less than two weeks before the meeting (Law on Real Estate Cooperatives Ch. 9 s. 14 read with the Law on Cooperative Associations Ch. 7 s. 8). A notice reaching a member the day before the meeting would thus be invalid and a notice by telephone call or e-mail is also not acceptable.
(b)There is no obligation for members to attend a general meeting. However, some decisions require a special majority, which requires that a sufficient number of owners must vote in order to adopt the resolution concerned. Swedish real estate cooperative law does not have any quorum requirements.
(c)The general rule is to calculate the majority in relation to those present and voting at the meeting (Law on Real Estate Cooperatives Ch. 9 s. 14 and the Law on Cooperative Associations Ch. 7 s. 13).
(d)As long as the resolutions were approved at the general meeting there is nothing that can be done to change or veto the decision. A resolution cannot be adopted by the owners signing a document containing a resolution that is sent to all of them without a general meeting being held. However, this is possible if some of the members sign the document and by this means approve a resolution.
(e)The chairperson of the general meeting is required to compile a list of every owner that has the right to vote and to record the voting result in a protocol (Law on Real Estate Cooperative Associations Ch. 9 s. 14 and the Law on Cooperative Associations Ch. 7 s. 10). The general meeting decides upon the manner of voting and voting usually takes place by a show of hands, meaning that every shareholder has one vote irrespective of the economic value of the share (co-shareholders have only one vote between them) (Law on Real Estate Cooperatives Ch. 9 s. 14 and Law on Cooperative Associations Ch. 7 s. 1).
(f)If the matter is not regulated in the by-laws, an authorised representative is only allowed to represent one member (Law on Real Estate Cooperatives Ch. 9 s. 14 and the Law on Cooperative Associations Ch. 7 s. 2).
Case 9
‘We, the tenants in condominium schemes, want more rights!’ [What shall we do with the tenants in a condominium scheme?]
The owners of a condominium scheme approve a resolution at a general meeting that no parties may be held after 10 p.m. on Saturday nights. 80 per cent of the apartments in the scheme are rented out to tenants. They object to this resolution, contending that they could at least have been allowed to attend the general meeting so that they could present their side of the case, and eventually to vote for or against this resolution, which directly affects their social life.
Comparative observations
Operative rules
Most condominium statutes encourage widespread participation in general meetings. It is common that owners, co-owners, legal representatives of companies and other juristic bodies and holders of hereditary building rights, hereditary land leases and usufructs814 may attend and vote at general meetings. Co-owners and companies that own an apartment, and in France the usufructuary and the nude owner, must choose a legal representative to attend and vote on their behalf. Furthermore, in France, the President of the High Court will appoint proxies for usufructuaries and nude owners that fail to appoint proxies themselves. However, tenants may in general not attend or vote at general meetings unless they are appointed as proxies, and they are not allowed to seek judicial intervention with regard to any resolutions passed at such meetings.815
814For the position of holders of real rights, see in general the French, Dutch and South African reports. For the specific position of a usufructuary, see the French, Dutch and Spanish reports.
815Austrian, Catalan, Danish, English, Estonian, German, Irish, Polish, Croatian, Portuguese, Scottish, Slovenian, Spanish and Swedish reports.
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