Экзамен зачет учебный год 2023 / European Condominium Law

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personality on the ground of an ambiguous condominium provision in the Civil Code. However, the legislator found that this system was too rigid. Instead of managing three subdivided buildings in a scheme by means of a single owners’ association, it is more practical to split the single owners’ association into three subsidiary associations, each dealing with the issues related to the common parts of each building. In doing so, the legislator’s aim was to make the management of an apartment building more flexible (see further Part III).

Catalonia

Operative rules

First of all, these proposals must all be incorporated in the agenda of the general meeting (CC art. 553-25.1) and then submitted to the general meeting for approval or refusal (art. 553-19).

(a)A four-fifths majority in number and share value of the owners present at the meeting is required for the approval of a resolution to paint the outside of the building with expensive gloss paint (art. 553-25.3). This would be classified as an alteration of the outside appearance of the building. However, if the exterior walls are in such a bad condition that the existence and appearance of the building is affected materially (which can be the case for a sixty year-old building), it would be considered as a matter of maintenance to conserve the building for which an ordinary majority vote would be sufficient (art. 553-25.5(b)).

(b)For the installation of a lift, an ordinary majority would be sufficient (art. 553-25.5(a)).897 This is an exception to the general rule applicable to the alteration of the common property for which a four-fifths majority in number and share value is required. This is in line with the state’s policy of facilitating modernisation and the removal of outdated features of condominium buildings. Note that owners or residents with physical disabilities may request the court to force the community of owners to remove physical barriers or install

lifts if the required majority is not obtained for these modernising features (art. 553-25.6).898

897SAP Barcelona 7-10-2008 (JUR 2009\38420).

898SAP Barcelona 24-4-2009 (JUR 2009\410899).

(c)The installation of a solarium on the top floor of the building would constitute an alteration of the common elements of the condominium

by means of the construction of a new facility and would thus require a four-fifths majority in number and share value (art. 553-25.3).899 If the

owners of the top floor want to reserve the solarium for their exclusive use, the unanimous consent of all the owners is needed (art. 553-42.2).

(d)A condominium scheme is voluntarily terminated if the owners, by

unanimous resolution, decide to restore the scheme to a regime of traditional co-ownership; if the building is destroyed; or the public authority declares the building deemed to be destroyed (declaracio´ de ruı¨na) (art. 553-14.1). However, the constitutive title may provide that the owners may resolve that the condominium regime will not be extinguished in any such cases but instead that the building will be rebuilt (in the case of destruction) or renovated (in the case of obsolescence). If the insurance proceeds do not cover the full cost, the owners in such cases would be obliged to cover any extra expenses incurred in proportion to their quotas (art. 553-14.3).

Descriptive formants

The above answers are based on the relevant provisions of the CC on condominiums as illustrated by case law.

Metalegal formants

In the above instances, it was important to determine the extent of the innovation or alteration of the common property. On the one hand, if a major alteration is envisaged, a four-fifths majority resolution is required, except for major alterations, such as the installation of a lift or the removal of structural barriers, which facilitates the modernisation of the building or improves the mobility of physically handicapped persons within the building, for which a simple majority resolution is required.900 On the other hand, certain minor alterations to the common property, such as attaching a basketball ring to the outside wall, would probably be linked to a normal use of the common property, for which a majority resolution would suffice.901

899SAP Girona 20-4-2009 (JUR 2009\402887) deals with the erection of a new chimney on the roof of the building.

900See SAP Barcelona 7-10-2008; JUR 2009\38420.

901See SAP Barcelona 14-10-2009; JUR 2009\489706.

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Croatia

Operative rules

(a)Repainting the building if the existing paint has decayed falls under regular maintenance, and thus requires an ordinary majority vote (Law on Ownership and other Real Rights art. 86). Using expensive gloss paint is an expense that generally surpasses regular maintenance and thus requires a unanimous vote (art. 87). However, if there are special justifications for using a particular type of paint, such as paint matching the original paint used (this may be required by certain regulations on building preservation), the decision might still fall within regular maintenance, and a majority might suffice.

(b)Installing an elevator is an improvement to the common elements of the building, which generally requires a unanimous resolution (art. 87(1)). However, because an elevator is directed at facilitating the access and movements of individuals with limited mobility, unanimity is not required (art. 87(3)). The wording of the Law is not entirely clear whether a majority decision suffices or additional requirements as to funding are applicable. However, the location and structure of the entire article points to the conclusion that such an improvement is possible if the majority approves the installation. Furthermore, such a change can be financed out of the common fund if such costs do not jeopardise regular maintenance and do not cause undue harm to the minority (art. 87(3)).

(c)A roof solarium is an improvement, so generally a unanimous decision would be required. However, if the top story unit owners are prepared to finance the improvement themselves, and represent the majority in terms of share values, they can proceed with the solarium improvement, as such a modification clearly does not harm other unit owners (art. 87(3)).

(d)Terminating the condominium scheme requires a unanimous vote under all circumstances. Moreover, termination must be registered with the land registry (art. 95(2)). Such termination will not affect the co-ownership shares of the previous owners, but rather their link to the units, which will be severed and deregistered (art. 96).

Descriptive formants

Improvements generally require a unanimous vote, which is sensible considering that all of the unit owners must finance such a modification. It is particularly difficult to acquire external financing where insufficient funds are available because loan financing authorised by an ordinary resolution applies only for regular maintenance costs

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Particular groups of owners may therefore present their wishes at a general meeting and call for a vote on their proposals (§ 2 par 2). If the proposals are adopted by the meeting, the management body will be obliged to carry out the resolutions.

(a)With regard to the issue of repainting, it seems most likely that a simple majority of more than 50 per cent of the votes by share value represented at the meeting can validly decide on this, as the painting would clearly

be classified as maintenance analogously to the courts’ practice in relation to similar issues under the Consolidated Law on Lease.902 This also

accords with the distinction in the Model By-laws between maintenance and substantial changes or alterations to the common property. The court would classify repainting with expensive gloss paint as maintenance as long as the work does not improve the utility value of the building.

(b)Where any proposals imply substantial changes to the common property, as is the case of both the lift and the solarium, a majority of two-thirds in number and share value of the owners represented at the general meeting is required for a resolution to carry out these changes. If the first meeting was not quorate, a majority of two-thirds in number and in share value of the members present can adopt the resolution at a subsequent special general meeting within eight weeks even though such meeting is not quorate (Model By-laws § 2 par 4).

(c)Besides the two-thirds majority required for the substantial change to the common property caused by the erection of a solarium on the roof of the top storey as discussed in the previous paragraph, the issue of whether the solarium could then be allocated to the exclusive use of the owners of units on the top storey must be decided. It seems that the owners’ association may either let the solarium to these owners or adopt a new by-law or house rule by which the solarium is allocated to the exclusive use of these owners. It stands to reason that the other owners would only consent to such a by-law or house rule being adopted if they are rewarded financially.

(d)The termination of the condominium scheme is neither regulated in the Law on Owner Apartments nor in the Model By-laws. Authors,

however, assume that this must be agreed unanimously by all the owners in the scheme.903 In the preliminary deliberations (travaux pre-

paratoires) on the Law on Owner Apartments it was stated that express

902See, for example, Western High Court decision in Journal for Housing and Construction (T: BB) 2001, p 400.

903Blok, Ejerlejligheder, pp. 482–4.

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putting them into sound condition (Model CCS par. 4.5.1). This places liability for maintenance of all strategic parts of the scheme on the association in a standard form, from which it cannot contract out. The directors may argue that repainting is not a suitable method of carrying out the work, as in the case where the outside of the building is composed of brick or stone, as like for like repairs alone are required. The association can only be required to repaint the outside of the building if the existing paintwork is damaged, and then the work needs to be to the latest modern equivalent, but not to enhanced standards.904 This has the probable result that, if the damaged paintwork can be properly renewed with the latest ordinary, rather than with more expensive and luxurious gloss paint, the former type of paint should suffice to comply with the statutory obligation of the association. If the association failed to carry out any painting where required, the aggrieved unit holders would first have to exhaust the internal dispute resolution procedures before seeking a mandatory injunction against the association to compel their execution of the work, assuming they could establish a breach of obligation.

(b)The installation of a new lift into the building with a view to

modernisation amounts to an improvement, as it is adding a new item not present originally.905 The approval of the association by ordinary

resolution for this type of work will thus be required (Model CCS par. 4.6.1), so if the group of unit holders do not have sufficient votes to carry such a resolution their wishes will not prevail. The commonhold may have a reserve fund in place to cover the cost of this work: if not, the association might, if a resolution is passed to install a new lift, have to establish one, and the directors might then have to set a reserve fund levy on all unit holders (pars. 4.2.6 – 4.2.14).

(c)Limited use areas may be created within the common parts of a scheme (CLRA 2002 s. 25(2) and Model CCS Ann. 4 par. 4) although, as alterations will be required to the roof to create the solarium, this work falls on the association, as to which see the previous comments. The commonhold community statement must include a description of the limited use area, a reference to the plan number, a statement of the authorised users and a statement of the authorised use. To create it in the case put will require an amendment to the local rules of the CCS in accordance with the procedure set out earlier. The limited

904Creska Ltd v Hammersmith and Fulham London Borough Council [1998] 3 EGLR 35 at 38: ‘the fact that repairs carried out now would incorporate some improvements in design . . .

does not mean that they cease to be works of repair’.

905Morcom v Campbell-Johnson [1956] 1 QB 106.

use area remains the property of the association, and the association accordingly remains liable for its repair, maintenance and decoration. Liability to pay for these costs falls on all unit holders. To mitigate the potential unfairness of this, the association can pass a resolution adjusting the percentage allocation of assessments of the unit holders on the top floor (as envisaged in CCS Ann. 3 par. 1) to reflect their exclusive benefit from the area.

(d) There are two methods of voluntarily bringing a commonhold to an end on the ground of redundancy of the scheme building or for any other reason. One procedure involves a winding-up resolution being passed by the association on the basis of a 100 per cent vote of all members of the association voting in favour (CLRA 2002 s. 44). Owing to the difficulty of any unanimous resolution being passed, the legislation also allows, subject to restrictive conditions, a winding-up resolution to be passed with at least 80 per cent of the members of the association voting in favour (s. 43). The primary difference between these two methods is that in the first case the liquidator appointed under insolvency legislation does not have to apply to the court for a winding-up order.

Descriptive formants

Descriptive formants are the CLRA 2002, the Model CCS, and common law using landlord and tenant analogies.

Metalegal formants

(a)The imposition of a liability on the association to repair and maintain is the first known occasion, other than with regard to short residential leases, of a statutorily imposed duty of this kind in England. This reflects the importance of making sure that scheme property is kept in good condition on a regular basis so as to secure the value of the development in the interests of unit holders and their mortgage creditors.

(b)The legislation recognises that with the passage of time improvements may be required, but also contains some safeguards, presumably to prevent abuse of a dissenting majority by other owners.

(c)The rules attempt to hold a balance between meeting the wish of some owners to have limited use areas, such as balconies or gardens, and fairness to those unit holders who may be unhappy about having to bear part of the cost of maintaining these areas from which they derive no benefit at all. Although limited use areas must be entered in the commonhold community statement, and thus form part of the registration documentation, they appear to be revocable rights

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equivalent to a licence rather than an easement, presumably because the conferral of a limited use area by one resolution of the association may later be cancelled by a later resolution of the association.

(d) Winding-up is a draconian procedure, given that commonhold is ordinarily taken to be a permanent institution, which explains the high hurdles to be met, although it could be an attractive remedy if the commonhold directors receive an attractive offer from a developer to redevelop the land.

Estonia

Operative rules

Ordinarily, the community of apartment owners may regulate their legal relationship with regard to the common property in a manner that derogates from the provisions of the Law on Apartment Ownership by means of an agreement concluded among them, except if this is directly precluded by law (§ 8 (1)). Without derogating from any agreements concluded among them, apartment owners may also adopt resolutions within the scope of the concept of regular administration by simple majority vote (§ 15 (3)).

(a) An apartment owner may demand the due administration of the common property in accordance with the agreements and resolutions of the general meeting or pursuant to the interests of the apartment owners (§ 15 (5)). Regular maintenance of the common property is expressly deemed to be administration in the interest of apartment owners (§ 15(6) no. 2). When there is agreement between the apartment owners that the building may be repainted with expensive gloss paint on the authority of a simple majority resolution, such a vote is necessary as a prerequisite to the building being repainted with such paint. Without such an agreement, the matter can only be decided by majority vote if it falls within the concept of regular administration. Only repainting of the building with paint of comparable quality to that at present in use seems to fall within the scope of regular administration. This will thus only be the case if the building had been painted originally with expensive gloss paint. Then the issue can be solved by majority vote.

When an apartment association has been established, the Law on Apartment Associations provides that resolutions of an apartment association concerning the performance of any work or decisions required with regard to the management and preservation of a residential building are binding on all owners (§ 13 (4)). Therefore, a resolution