Экзамен зачет учебный год 2023 / European Condominium Law

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tenant. Refusal to obey the rule can, depending on the terms of the lease, lead to termination of the lease.817

Some jurisdictions are willing to allow tenants to institute a contractual claim against their landlords on the basis of the lease if they are seriously affected by decisions taken at the general meeting. For instance, if the terms of the lease warrant more freedom in the use of the unit than is permitted under a particular resolution, a tenant may be able to raise an action against his landlord.818 In Belgium, a tenant can initiate judicial proceedings for the nullification or amendment of a resolution on the ground that he has been personally disadvantaged by the resolution. In urgent cases, the judge can order the interim suspension of the resolution decision until his final judgement. The French report even goes so far as to suggest that a tenant may approach the European Court of Human Rights on the basis that his privacy and personal freedom are infringed by the resolution in the present scenario.819

In fact, several reports challenge the validity of the rule in question on various other grounds,820 and in Portugal and South Africa such a rule would need to be approved by a substantial majority.

Descriptive formants

Where units in a condominium scheme are let, there are two legal relationships that must be considered, namely, the landlord–tenant relationship and the relationship between the owner and the management body. The former is regulated by the general principles of the law of lease, supplemented by special tenancy legislation821 and customary house rules,822 while the latter is governed by condominium legislation823 and/or special legislation pertaining to associations,824 the articles of association of the management body825 and the model by-laws.826 The elite role played by owners in the management of the scheme is even reflected in the name given to the Spanish (and Catalan) and the French management body, namely, junta de propietarios and syndicat des coproprie´taires respectively.

819See also the statutory protection of tenants in Sweden.

820Estonian, Norwegian, Polish and Swedish reports.

Metalegal formants

Reasons advanced for restricting tenants’ attendance and voting rights at general meetings include the basic principles that owners have a superior financial interest in the scheme827 and that the right to vote is a proprietary right.828 Accordingly, several reports suggest that the improvement of tenants’ rights in condominiums schemes is not a burning issue, particularly in the absence of a vigorous debate instigated by tenants or tenants’ associations.829 The Croatian reporters observe that one of the reasons why tenants have little bargaining power over crucial issues such as voting rights is that renting is more prevalent among the younger population and those who cannot afford to purchase their own property.

By contrast, however, other reports adopt the view that preventing tenants from attending and voting at meetings is unjustified.830 Some Slovenian and Dutch academics do not foresee any practical problems in allowing tenants instead of owners to attend the meetings in order to be informed about management decisions and other important issues. The Greek and Polish reports suggest that there are certain situations in which tenants should be afforded at least some voting rights at general meetings, specifically in resort, second-home and investment condominiums where tenants greatly outnumber ownerresidents.831

Austria

Operative rules

In the absence of a legal relationship between a tenant and the unit owners’ association, a tenant cannot influence the actions and resolutions of the association or of the majority of the owners. This principle applies even where a large number of apartments in a scheme are let. The individual tenants (with the exception of the special provisions contained in Law on Apartment Ownership § 4(2) and (3))832 only enter into a legal relationship with their landlord, hence with the owner of

829 Danish, Estonian, Norwegian, Spanish and Swedish reports.

832Vonkilch, ‘Wirkung der Wohnungseigentumsbegru¨ ndung auf ein bestehendes Mietverha¨ ltnis (§ 4 WEG 2002)’ (2002), p. 123.

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the apartment concerned. Therefore, tenants are not entitled to attend, participate in or vote at meetings of the association.

For details of the adoption of house rules and their permissible provisions see the extensive remarks made on Case 7 above. As already explained, a rule forbidding visitors after 10 p.m. would not be permissible. Such a rule can, however, be interpreted as a rule preventing residents and their guests from disturbing the silence in the scheme on Saturday nights after 10 p.m.

The tenant generally has the right to make normal use of an apartment. Certain kinds of use can, however, be precluded in terms of the rental contract. The house rules are generally incorporated in the rental contract. A subsequent change of the house rules incorporated in the lease will not usually have automatic effect, as this would amount to a unilateral change of the contract. It is also not permissible to confer a unilateral power of adjustment of the house rules on the landlord (CC § 879(3) and Law on Consumer Protection § 6(2) no. 3).

The extent to which other sectional owners have the power to take action against a tenant acting in breach of the house rules833 depends on whether or not the tenant’s conduct constitutes a nuisance (see Case 6 above).

Metalegal formants

An intriguing situation arises where an owner permits (via the rental agreement) his tenant to carry out an activity that is not permitted in terms of the rules of the scheme. The other unit owners can approach the court for an interdict against the landlord as a so-called ‘indirect disturber’ (mittelbarer Sto¨rer) because he is responsible for the tenant’s conduct.834 On the other hand, the landlord cannot interdict the tenant’s conduct, because the apartment owner is, by virtue of the lease, obliged to permit the tenant to behave in the given way. Where in practice the other apartment owners have already instituted attachment proceedings against the apartment owner, the Austrian Supreme Court (Oberste Gerichtshof) has granted the owner concerned an extraordinary right to cancel the lease.835 This is a significant and perhaps surprising decision in light of the high standards of tenant protection under Austrian law.

835 7 Ob 142/08w EvBl 2009/30 (Parapatits).

Belgium

Operative rules

Although tenants are not entitled to attend the general meeting of the owners’ association, the manager is obliged to notify every resident with a real or personal right to reside in the scheme, but who does not have the right to vote, that a general meeting will be held at a specified date. The aim of the notification is to enable such residents to formulate questions or remarks concerning the common parts to be put to the meeting. The observations will be communicated to the general meeting and posted on the bill board of the scheme (art. 577-8 § 4, no. 8). However, the general meeting is not obliged to seriously consider the observations made by the tenants.

An a posteriori remedy is also available to any of the above residents, including tenants. Any of these residents who has been personally disadvantaged by a resolution can initiate judicial proceedings for the nullification or amendment of the resolution concerned (art. 577-10 § 4 par. 4). In urgent cases, the judge can order the interim

suspension of the resolution until his final judgement (art. 577-10 § 4 par. 5).836

Descriptive formants

The above rules are mandatory and cannot be deviated from in the bylaws of the scheme.

Metalegal formants

The tenant has an ambivalent position in Belgian condominium law. On the one hand, a tenant does not share in the long term perspective of owners in the scheme, and therefore should not be awarded a right to vote or be able to take part in the voting process. On the other hand, the commitment of the tenant to the scheme is frequently greater than that of the landlord. Therefore, it is proper that he should have the right to ask for the annulment of resolutions that affect him adversely.

836Hubeau, ‘De rechtspositie van de huurder in het nieuwe appartementrecht’ (1999), pp. 22–6.

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Catalonia

Operative rules

Only owners are members of the condominium community and only they are entitled to attend and to vote at general meetings (CC art. 55319.1). Although tenants may appoint proxies to represent them and vote on their behalf at general meetings (CC art. 553-22), they are not entitled to attend or vote at general meetings even for resolutions that may affect them directly. Moreover, if tenants persist in making a nuisance of themselves their contract of lease may be terminated in terms of a judicial decision (CC art. 553-40).

Descriptive formants

The current Catalan law following the Spanish law as it had been applied in Catalonia regards unit owners, as opposed to tenants, as the most important role players in the administration of a condominium as is reflected even in the name of the management body, namely, junta de propietaris. Under Spanish law of lease (which is of direct application in Catalonia) tenants do not have proprietary rights in units, but only a personal right under the contract of lease to live in the unit in exchange for the payment of rent. Even in the event that a unit is burdened with a right of use or a usufruct, only the bare owner is entitled to attend and to vote at the general meeting (CC art. 553-22.3 and 4).

Metalegal formants

Rights of tenants under Spanish law (which is of direct application in Catalonia) are very limited. For instance, any repairs, alterations or improvements of the tenanted property must be undertaken by the owner. This could be one of the reasons why Spain is, according to Eurostat,837 one of the countries in Europe with the fewest tenancyoccupied dwellings, namely, only 10 per cent.

Croatia

Operative rules

The resolution prohibiting parties on Saturday nights is a valid house rule if passed by owners holding the majority of co-ownership shares

837Available at http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/ Housing_statistics.

(Law on Ownership and other Real Rights art. 86). It is the owners, and not the tenants, who have the right to vote. Thus, their request to attend the general meeting and present their case, let alone the request to vote, is unfounded.

Descriptive formants

Voting rights in the condominium structure are a direct reflection of ownership, and not occupancy. The right to vote is a right to manage one’s property, which is embedded in the right of ownership itself. Tenants have the right to use the unit based on their lease with the unit owner. If the unit owner wishes to do so, he may authorise the tenant to attend meetings as his representative and vote on all matters. In such a case, the tenant would be able to influence final decisions. This would not be his inherent right, but rather an extension of the will of the owner.

The position of tenants is generally regulated under the Law on Lease of 1996, which gives no special rights to tenants with respect to decision-making. In fact, tenants must not disturb other occupants in their peaceful use of the property, and a failure to do so is a ground for cancellation of the contract of lease (art. 19(1)(3)).

Metalegal formants

The Croatian housing market is mixed, and both home ownership and rental accommodation are common. However, the trend is towards ownership, as the majority of the population strives for home ownership. This often requires long-term secured credit. The government subsidises this by means of a special system of subsidised housing savings. Renting is more prevalent among the younger population and those who cannot afford to purchase their own property. This is perhaps one of the reasons why tenants have little bargaining power over crucial issues such as voting rights in condominium schemes.

Denmark

Operative rules

Tenants cannot normally influence any resolutions adopted at a general meeting as only the owners of any rented apartments are allowed to attend and vote. However, the general meeting may decide to invite tenants to the meeting to hear their views.

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The owners’ association does not have any direct power to compel tenants to comply with the new house rule mentioned in the Case. In the case of non-compliance, the association may issue a warning notice, but as the association has no contractual relationship with any tenant they cannot themselves terminate any leases. Only the owner of the apartment can give notice or terminate an apartment lease, but only if the tenant has violated the house rules in a substantial way (Consolidated Law on Lease of 2010 s. 83 or 93). On the face of it, the owner would not be allowed to terminate a lease if a tenant held a party after 10 p.m. on a Saturday night on only one occasion. However, if the owner refuses to follow an instruction from the association to enforce the new house rule against his tenant, the owner’s association has no remedies as § 8 of the Law on Owner Apartments only envisages the right to remove an owner from his apartment, and not for the removal of a tenant. In this respect Danish law may aptly be described as undeveloped.

Descriptive formants

Where units in condominium schemes are rented out, two legal relationships interact: relations between owners and tenants are regulated by the Consolidated Law on Lease, while the relations between owners and the owners’ association are governed by the Law on Owner Apartments. The situation set out in this Case was not taken into consideration when the Danish Model By-laws were drawn up. Therefore, the basic default rule applies, namely, that the unit owners retain all voting rights.

Metalegal formants

There does not seem to have been any great demand from tenants or tenants’ associations for specific rules regulating tenants’ rights in condominium schemes.

England

Operative rules

Tenants of commonhold unit holders have no right to vote at any association meetings as they are not members of the company (inference from Model Articles art. 7(c)). A unit holder may appoint a unit tenant to act as their proxy at meetings (inference from art. 36).