Экзамен зачет учебный год 2023 / European Condominium Law
.pdf‘we, the tenants in condominium schemes, want more rights!’ |
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second case is where the tenants in the building or a group of buildings have formed an association that represents at least 10 per cent of the tenants and complies with other conditions imposed by the Law favouring rental investment etc. of 1986 art. 44. In such a case, a maximum of three representatives of the tenants’ association are entitled to attend general meetings and participate in the debates, but they are not entitled to vote.
More generally, the resolution prohibiting parties in the building after 10 p.m. would be valid if adopted by the required majority of co-owners (Law on Apartment Ownership art. 26 b) and if it is consistent with the intended purpose (destination) of the building (art. 8 read with art. 2). All tenants are obliged to respect the condominium by-laws if they have been duly and properly informed of these rules (Law on Apartment Ownership art. 13 read with the Law to improve tenant relations etc. of 1989 art. 3).841 However, the specific prohibition on the holding of parties after 10 p.m. may be challenged on the ground of an infringement of the tenants’ right to respect of his private life, which is enshrined in the European Convention on Human Rights (art. 8), as this restriction concerns the private life of residents in their own apartments. There is no European case-law yet on this specific issue.
Descriptive formants
The entitlements to participate and to vote at general meetings are mainly contained in the provisions of the Law on Apartment Ownership and special Laws on companies and associations of tenants.
Metalegal formants
The exclusion of tenants from attendance and from the right to vote at the general meetings, even with regard to matters that concern them intimately, is reflected in the designation of the owners’ association as the syndicat des coproprie´taires, which indicates that only owners have the power to adopt resolutions. This position is not criticised by French authors, mainly because tenants are able to form an association of tenants to represent them at general meetings.
841 See Cass. Civ. 3e`me 3 March 2004 no. 02-14396.
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Germany
Operative rules
In Germany, tenants neither have the right to participate in general meetings nor can they seek judicial intervention with regard to any resolutions passed at such meetings.
Descriptive formants
The Law on Apartment Ownership contains no rules dealing explicitly with the relationship between tenants and the owners’ association, or indeed between the tenants and other owners. The question as to whether owners can enforce house rules against tenants is therefore determined by the CC (§ 1004), which gives each owner the right to take action against tenants whose behaviour is disruptive and does not comply with the by-laws of the scheme.842 In the event that a tenant’s rental agreement provides for a particular use that is deemed to be disruptive or against the by-laws of the scheme, the tenant has a right of action against the landlord concerned.843
Metalegal formants
This raises fundamental questions about the nature of owners’ resolutions. If one does not regard resolutions and by-laws as forming part of the content of ownership (Inhalt des Eigentums) (Law on Apartment Ownership § 5 par. 4), it looks as if owners will have no claim against tenants who disobey resolutions because there is no contractual relationship between them. The somewhat bizarre consequence of this would be that a tenant has more rights than the owner, in that an owner is bound to obey resolutions whereas a tenant is not (§ 10 par. 4).844 The majority of courts refuse to accept this particular result: as long as the resolution prohibits conduct that is considered to amount to an encroachment of property rights generally then the owners can
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See Lehmann-Richter, ‘Anderungen der mietvertraglichen Gescha¨ftsgrundlage |
aufgrund von Wohnungseigentu¨ merbeschlu¨ ssen’ (2009), p. 345.
843See BGH NJW 1996, 714.
844See Armbru¨ ster and Mu¨ ller, ‘‘Zur Wirkung wohnungseigentumsrechtlicher Gebrauchsbeschra¨ nkungen gegen Mieter’ (2007), p. 227 and ‘Direkte Anspru¨ che der Wohnungseigentu¨ mer gegen Mieter, insbesondere bei zweckwidrigem Gebrauch’ (2007), p. 321 for the view that § 5 par. 4 does not render resolutions part of the ‘content of the property’.
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also enforce it against tenants. This may well be the case for excessively loud music after 10 p.m., but not for parties per se.
Greece
Operative rules
According to what has been discussed above, only owners are allowed to participate in the general meetings of the condominium. Tenants are not allowed to attend or to vote at the general meeting, unless they are appointed as proxies. However, in appropriate circumstances tenants may have a contractual claim against their landlords on the basis of their lease if they are seriously affected by the decisions taken at the general meeting.
Descriptive formants
The above answer is based on the provisions of the Law on Ownership of Storeys, which only confers rights and duties on owners and not on tenants.
Metalegal formants
In certain condominiums, particularly resort, second-home or investment condominiums, tenants outnumber owners by far as in the present scenario. In order to satisfy the interests of the tenants as well, the law could entitle tenants to attend and vote at general meetings, at least in relation to matters that concern them intimately.
Ireland
Operative rules
The only persons entitled to exercise voting rights at company meetings are the owners of shares (Companies Act 1963 s. 136(1)). As a result, the only persons with votes at meetings are the unit holders, as opposed to any sub-lessees in their unit, although the latter can be appointed to act as the proxy of the unit holder at a given meeting (Table A arts. 68 and 69). There is nothing to prevent sub-tenants of units from turning up at a general meeting to make their views known but there is no requirement that they should be notified of such a meeting in advance.
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Descriptive formants
Companies Act 1963.
Metalegal formants
As the long lessees of units have a financial interest in their unit, and so in the good running of OMCs, it is thought right to deny their sublessees any automatic say at meetings, as a proxy vote can be agreed between the two parties on matters such as proposed new house rules as to parties, which are of prime concern to the latter. The Irish Law Reform Commission preferred to leave things as they are, even in cases where the unit holder was absent and thus not involved in day to day issues.845 They did not find the idea of compelling a proxy attractive. Voting power is an attribute of company membership and should not be removed, save by agreement and for specific purposes, from the unit holder.
Italy
The Case under consideration bears some degree of similarity to Cases 2 and 7. Nevertheless, it should be noted that in the event that all the owners agreed that a limitation on parties after 10 p.m. can be inserted as a contractually agreed provision in the condominium by-laws, then such a provision would be legally enforceable against third parties including tenants. Individual liberty is of course guaranteed by the Constitution, and includes the right to a regular social life. However, it is, in appropriate circumstances, necessary to balance this against other legitimate interests, such as privity of contract.
There are two key considerations associated with the given scenario. First, Italian law does not acknowledge a general right on the part of tenants to address or to vote at general meetings. Tenants may take part in discussions and vote on certain matters that are expressly provided for in law – for example there is legislation that specifically allows tenants to vote on matters concerning the expenses of maintaining a well-functioning heating and air conditioning system.846 However, the grievance voiced by the tenants in the given scenario has not been specifically provided for in law, and so would fall on deaf ears. This is, however, qualified by the second consideration below.
845 Final Report pars. 3.58, 3.62–3.63. |
846 Law on Urban Leases of 1978, art. 9. |
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The second consideration concerns the content of the resolution. The particular resolution under consideration does not fall within the powers of the general meeting of owners, because it affects use and enjoyment of the units over which the owners enjoy exclusive ownership. As such, its legality, and therefore validity, is uncertain, and it may well be deemed void.
The Netherlands
Operative rules
Dutch law on apartment rights allows only the following persons to vote at the general meeting: owners and limited real right holders of a hereditary building right (superficies, opstal), a hereditary land lease (emphyteusis, erfpacht) or a usufruct on an apartment right (unless otherwise determined in the constitutive deed for the establishment of the limited real right). Ordinary tenants are therefore not entitled to vote at general meetings. Naturally, as in the case of any other natural or legal person, tenants may be appointed as proxies by an apartment owner. The legal representative of a legal person usually acts as its proxy.
However, although tenants are bound by all previous rules adopted by the general meeting on their becoming tenants in the scheme, tenants (or other residents) are not bound by decisions taken at a general meeting after they have joined the scheme. In the event that any tenant or other resident, on being asked, indicates that they are not willing to comply with a new rule adopted by the general meeting or remains silent, the cantonal judge may, upon the application of any apartment owner, decide that the rule will bind the tenant or other resident (CC art. 5:128 no. 2).
Descriptive formants
Entitlement to vote at the general meeting is regulated by the Dutch apartment rights legislation as incorporated in the Dutch Civil Code, as well as the Model By-laws.
Metalegal formants
Doctrinal works have advocated that tenants should at least be allowed to attend general meetings and raise opinions on matters that affect
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them directly. Doctrine does not, however, go so far as to advocate that tenants should be accorded the right to vote at general meetings.847
Norway
Operative rules
Tenants have no voting rights at meetings in schemes consisting of owned units. The tenant of any residential unit, however, has a right to attend and speak at general meetings (Law on Owned Units of 1997
s.33(2)).
As concerns substance, the rule in question here would hardly be
binding on owners. In the discussion of Case 7 it was mentioned that ordinary house rules adopted by a majority vote at a general meeting should contain practical guidelines for proper care and considerate behaviour. This rule is not binding as it does not amount to such a practical guideline; it seems excessive and scarcely serves any valid purpose. Consequently, such a rule can also not be imposed by owners in their capacity of landlords of a unit in such a scheme. The Law on Landlord and Tenant of 1999 contains corresponding rules.
Descriptive formants
The solutions flow directly from the Act, combined with an opinion as to what may be regarded as ‘ordinary’ house rules.
Metalegal formants
The right of tenants to attend general meetings is not a controversial one, but it may well be that it is little known and tenants are rarely notified of general meetings.
Poland
Operative rules
The Law on Unit Ownership allows only owners to attend, speak and vote at general meetings. Nevertheless, resolutions bind not only owners but also tenants and other residents of the scheme. Although tenants may not object to resolutions, they may have contractual
847Mertens et al., Naar een vernieuwd appartementsrecht: Preadvies Koninklijke Notarie¨le Beroepsorganisatie (1997), par. 7.9.4.
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claims against their respective landlords if the latter assured the tenant of more freedom in the use of the unit than is actually permitted by resolutions of the general meeting. Note, however, that the rule against parties after 10 p.m. on Saturday nights would in principle be regarded as an unreasonable restriction on unit owners’ rights of use and enjoyment of their units and will probably be held to be invalid.
Descriptive formants
The Law on Unit Ownership provides that tenants are bound by resolutions taken at meetings although they have no say in these resolutions. However, with regard to the specific rule adopted at the general meeting, the community of owners has the power to prohibit parties being held on the common property but not to stop people from having any parties in their units. Even if house rules require a period of quiet from 10 p.m. to 6 or 7 a.m. (which is usually the case), parties at reasonable intervals and for customarily accepted festivities (such as birthdays, New Year’s Eve and bachelorette parties) would not be a violation of customary house rules.
Metalegal formants
Schemes consisting of units purchased for investment and mostly rented out to tenants generally do not function well. The tenants concerned do not feel obliged to cooperate with any unit owners actually residing on the scheme premises and the landlords are usually too busy to have a close relationship with the tenants. It would be of great practical value to devise rules allowing the tenants to have some involvement with the resolutions of the community of owners or to oblige owners to bear some responsibility for their tenants.
Portugal
Operative rules
Only owners are entitled to vote at a general meeting (CC art. 1430(2) and (4)). Tenants are only entitled to vote at general meetings if they have been appointed as proxies by their landlords.
The general meeting is only allowed to pass resolutions forbidding acts or activities in units if such resolutions are approved by a substantial majority of votes representing two-thirds of the total share value of the building, without opposition from any owner (CC art. 1422(2)(d)).
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Therefore, a resolution that no parties may be held after 10 p.m. on Saturday nights would only be valid if approved by this substantial majority. If such a majority is achieved, the resolution will be binding on tenants, occupiers and visitors to the building alike. Nonetheless, a potential contractual liability of the landlord, as against the tenant, might arise in such a situation.
Descriptive formants
The answer above is based on CC art. 1422(2)(d) regarding the competence of the general meeting to regulate the use of units, and on CC arts. 1430(2) and 1432, which provides that only owners are entitled to vote at general meetings.
Metalegal formants
The entitlement to vote at general meetings is inherent in proprietary rights. Therefore, only owners are entitled to influence and determine the management of the building by their resolutions. The exclusion of tenants from attendance and the right to vote at the general meetings, at least on matters which concern them intimately, has been criticised, but recent developments in the Law on Lease have not altered this aspect.848
Scotland
Operative rules
Burdens under TMS and rules under DMS are binding on occupants and users of apartments. Therefore, the tenants will be bound if there is a rule prohibiting parties after a certain time. (However, the same question regarding interest to enforce arises if this is a real burden under TMS rather than a rule under DMS. The latter is potentially much easier and more certain to enforce).
Neither structure gives tenants or persons other than the owners or co-owners of units any right whatsoever. Presumably, the owner can appoint a tenant to vote on his behalf at a general meeting. However, there seems to be no reason why the owner would want to do this, given the general meeting has the potential to make decisions relating to service charges and so on. The service charge is collected from the
848 Passinhas, Assembleia, p. 213.
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owners only.849 An ‘owner’ is defined as an owner of a unit in relation to service charges;850 therefore clearly excluding tenants.
Descriptive formants
Tenants in Scottish tenements do not bear the more onerous responsibilities of maintenance or repairs to the building, or service charges as are collected under DMS. In return, it would seem disproportionate for them to be given any right to determine how the scheme is ultimately run.
Metalegal formants
Scots law has abolished long leases, especially in residential properties. Furthermore, most of the residential leases in the private sector would be short assured tenancies with no significant right for the tenant beyond the contractual term of a lease if it is not renewed by new agreement or by acquiescence (tacit relocation). It is difficult to see why the tenants should not be able to simply end the current lease and move to another place if they find the restriction on having late night parties too taxing.
On the other hand, if the building is in fact mostly rented out to tenants (or even mostly to students, for the sake of argument), the landlords may want to avoid the imposition of such restrictions so that the apartments would be more appealing to potential tenants. However, this is clearly a matter for the market and the individuals to decide, rather than for the law to intervene by giving some form of ‘tenant right’.
Slovenia
Operative rules
Under Slovenian law only apartment owners, as opposed to tenants, are entitled to vote at the meeting of owners. An apartment owner may, however, transfer his rights as apartment owner to a tenant in the lease agreement so that the tenant can represent him in relationships with the other apartment owners (Law on Housing art. 24(1)). It is also possible for an apartment owner to appoint his tenant as a proxy to
849Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009, Rule 19.3.
850Rule 19.6.
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exercise his voting rights at the general meeting (Law on Housing art. 24(2)).
Apartment tenants have the same rights and obligations as apartment owners as regards the use of the apartment (Law on Housing art. 24(3)). This means that they are bound by all decisions of apartment owners.
Descriptive formants
Entitlement to vote at the meeting of owners is regulated by the Property Code and the Law on Housing. The Law on Housing entitles an owner to transfer the exercise of his rights as apartment owner to another person such as his tenant.
Metalegal formants
As a substantial majority of residents in apartment ownership schemes are owners, the issue of whether or not unit tenants should be given the right to attend general meetings or even to vote at such meetings is not a particularly controversial topic in Slovenia. On the other hand, there does not seem to be any practical problem in allowing tenants to attend owners’ meetings in order to be informed about management decisions and other important issues.
South Africa
Operative rules
Under the Sectional Titles Act, only owners are entitled to vote at a general meeting.851 The definition of ‘owner’ includes the persons who are registered as owners of a unit as well as persons registered as holders of a unit (s. 1 ‘owner’). By academic interpretation, registered holders who would qualify as ‘owners’ would include the holder of a registered ninety-nine year leasehold, the holder of a registered lease of more than ten years and the holder of a registered usufruct over a unit.852 Ordinary tenants are therefore not entitled to vote at general
851Under s. 36(1) all registered owners are automatically members of the management body and only members or their proxies or legal representatives are entitled to vote at a general meeting.
852See Van der Merwe, Sectional Titles, 3–26; Ex parte Standard Bank Ltd: in re Estate Rodger
1963 3 SA 683 (SR). One must assume that these holders become members of the management body until the expiry of their registered right.