Экзамен зачет учебный год 2023 / European Condominium Law

3. Terminology

The only significant problem encountered with terminology was the designation of condominium legislation. The decision was made to use an almost literal English translation of the terms used to describe the statute of a particular jurisdiction. This occasionally resulted in slightly unusual terms, such as the Law on Apartment Ownership for Austria, Germany and France; the Law on Owned Apartments for Denmark; the Law on Owned Units for Norway; the Law on Unit Ownership for Poland; the Law on Horizontal Property for Spain; and the Law on Ownership of Storeys for Greece.

4. Structure of condominium

In most of the jurisdictions represented, the condominium concept consists of three components. These are (a) individual ownership of an apartment; (b) co-ownership (joint ownership) of the land and the common parts of the building; and (c) membership of an incorporated or unincorporated owners’ association.1 The purchaser of an apartment therefore acquires ownership of his apartment, a co-ownership share in the common property and becomes a member of the apartment owners’ association. Consequently, condominium straddles both the law of property and the law of associations. Two of its components, namely, individual ownership of an apartment and co-ownership of the common areas, pertain to the law of property, while the third element falls under the law of associations.

Condominium regimes across the world are generally divided into either unitary or dualistic systems.2 Under the former, primary significance is given to the owners’ co-ownership in the common property. An apartment owner is in the first instance regarded as a co-owner of the land and buildings that comprise the scheme; the exclusive rights of use accorded to each owner with regard to a specific part of the building is merely regarded as an ancillary incident carved out of the co-ownership of the land and the buildings. Unitary systems, or nuances thereof, had been adopted mainly in legal systems that were unwilling to break completely with the maxim superficies solo cedit and

1Poland: Law on Unit Ownership art. 3 s. 2 and art. 6; Estonia: Law on Apartment Ownership § 1(1).

2Aeby et al., La proprie´te´ des appartements. Ses aspects juridiques et pratiques (1983), nos. 39, 42, 43; Givord and Giverdon, La coproprie´te´ (1987), nos. 157–72.

considered their notion of co-ownership sufficiently flexible to accommodate exclusive rights of occupation in particular apartments in a condominium building.3

Under a dualistic system, two autonomous species of rights, namely, individual ownership of an apartment and co-ownership of the common property are combined to form a completely new type of composite ownership. Most dualistic systems regard individual ownership as the most important element of this new composite ownership. This makes most dualistic systems at odds with construction techniques that regard foundations, outside walls and roofs of the building as parts of the building without which the building cannot exist. Historical, sociological and psychological considerations have4, however, played a role in perceiving the individual apartment as the primary object of this new composite right of ownership.

The tripartite structure is unknown to the English Commonhold and Leasehold Reform Act of 2002. The commonhold association is a private company that owns the common facilities and the common parts of the building and all unit holders are members on the basis of one share per unit.5, 6 It is not a threefold unity consisting of private ownership of units combined with a co-ownership share in the common parts and membership of a management body corporate. Commonhold could be regarded as a new form of freehold ownership with special statutory attributes,7 suggesting that individual ownership is the more important right. It could equally be argued that, having regard to the difference between freehold ownership of units and ownership of the common parts by a corporate body, that there is an even balance between the two sets of rights.

The legal position in Ireland is almost identical. The common areas are owned absolutely by the Owners’ Management Company (OMC) and unit holders have no co-owned shares in the common areas. Unit leases confer rights of use and enjoyment, with common areas and facilities. As directors of the OMC are drawn from the unit lessees, the

3The Netherlands, Norway and Italy have apparently adopted a unitary system. See for Italy: Bigliazzi et al., Diritto Civile (vol. II, Diritti Reali (1988), p. 320 contra: Terzago,

Il condominio. Trattato teo`rico-pra`tico (2000), pp. 16–24.

4See van der Merwe, ‘Apartment Ownership’ (1994), s. 27. The French reporters stress that the French want to acquire exclusive ownership of their apartments and would not settle for being just one of the co-owners of the whole building.

7 Commonhold Bill 1996 cl. 1(1) (Lord Chancellor’s Department 1996).

unit holders in effect are the owners of their leases. As a result of their compulsory membership of the OMC they together control the affairs and management of the company. The status of the property held by Irish long lessees can be seen as being primary, and that of the property held by the OMC is evidently secondary.

In Tenement Management Schemes (TMS) in Scotland, there is at most a twofold unity of private ownership of individual flats and co-ownership of common property. There is no automatic management body. It is certainly not a unitary system because the Scottish approach has always been individualistic rather than collective.8 Where the title deed is silent on the issue of ownership, the statute divides up the building including parts such as the roof, the ground (solum), ceilings, floors and boundary walls into individual ownership as far as possible.9 Under the statute the common property is limited to the stairs, close, a lift, any access path and facilities such as rhones, pipes, flues and cables serving more than one flat.10

In contrast, Development Management Schemes (DMS) do recognise the third element in the possible threefold unity, namely, the membership of the management body (the owners’ association). In fact, the membership of the owners’ association is defined exclusively by the status of ownership of a unit, without the need to go through any other procedure such as notification or registration as members.11 With regard to the first two elements, the enabling order does not specify the distribution of ownership in a tenement. Presumably the rules in the Tenements (Scotland) Act 2004 will continue to apply if a DMS title deed is silent on this particular point. In reality this is most unlikely as the ownership of parts is probably one of the most important concerns for any developer or potential purchaser. However, it is worth noting that the concept of scheme property is imported into DMS,12 which suggests a continued intention to sever the connection between ownership and maintenance.

The Swedish real estate cooperative (Bostadsra¨tt) can be seen as a unitary system in which the housing estate (consisting of several houses or a multi-unit building consisting of individual apartments)

8 Van der Merwe, ‘The Tenements (Scotland) Act 2004: A brief evaluation’ (2004), p. 211.

11Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009, Sch. 1 rule 2.3.

12Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009, art. 20.

is owned by the association, whereas the shares of the individual members entitle them to lease a specific house in the estate or an apartment in a multi-unit building. The new Swedish form of condominium – a¨garla¨genheter – has a dualistic structure. The ownership of the a¨garla¨genhet, or individually owned three-dimensional unit, is combined with a co-ownership share in the common property of the scheme and these two components are accorded equal importance.

The concept of transferring parts of a building probably stemmed from the colony’s location on an island where land for improvement was scarce and where the acute housing shortage forced the citizens to erect multi-storeyed buildings, which were then divided into several ownership units.

There is evidence that this institution was endorsed in the ancient law of Chaldea. A charter dating from the time of King Irmerum of Sippar (2000 bc) documents the sale of the lower storey of a house to a third party as a tavern while the upper storey remained the property of the seller.4 The pioneering use of sun-dried bricks to build houses in ancient Chaldea advanced the construction of multi-storeyed buildings.5 From Chaldea the institution of horizontal property spread through the whole of the Orient. There is evidence that the institution was approved in ancient Egypt, Syria, Judea and Greece.6, 7 For ancient Greek references to separate ownership of parts of a building, researchers point to passages in Homer’s Odyssey (XIX-594) and in Herodotus, The Histories (II 4 40).8

Ancient Islamic law also recognised the separate ownership of individual storeys and apartments in one and the same building.9 The laws applied by the traders of North Africa provided for individual ownership of separate parts of buildings that they erected around oases in the desert.10

3. Roman law

3.1. Pre-classical Roman law

The prevailing view is that individual ownership of apartments was unknown in Roman law because of the predominance of the maxim

4Cuq, ‘Etudes’, p. 458; Ba¨rmann, WEG (1958), p. 4; Batlle Va´squez, La propiedad de cases por pisos (1960), p. 13.

5Bernard, Le Proprie´taire d’Appartement, ses droits, ses obligations et ses rapports de coproprie´te´ (1929), p. 16; Cuq, ‘Etudes’, pp. 458–9; Flattet, La propriete´ par etages (1956),

p.600.

6Nezikin, Babylonian Talmud. Baba Mezia (1935), ch.10; Fernandez Martı´n-Granizo La ley de propiedad horizontal en el derecho espan˜ol (1983), pp. 115–16 who cites two Mishna in Spanish at 115 no. 8.

7Pappulias,‘Zur Geschichte’, pp. 363–4; Fernandez Martı´n-Granizo, Propiedad Horizontal,

pp.112–6.

8Fernandez Martı´n-Granizo, Propiedad Horizontal, p. 113; Cuq, ‘Etudes’, p. 459 and Etudes sur le Droit Babylonienne (1910), p. 185.

9Fernandez Martı´n-Granizo, Propiedad Horizontal, p. 116 refers to this phenomenon in

the zouks of Beirout.

10 Aeby et al., La proprie´te´ des appartements. Ses aspects juridiques et pratiques (1983), p. 41.

superficies solo cedit.11,12 In terms of this maxim, the owner of the land is also considered owner of the building erected on it. Ownership extends over the building in its entirety and parts thereof cannot be acquired separately. However, well-known Romanists such as Niebuhr and Puchta found evidence of ownership in storeys of a building in the work of Dionysius of Halicarnassus.13,14,15 This passage discusses events after the passing of the Lex Icilia de Aventino Publicando in 456 bc,16 which, in order to create space in the congested inner town of Rome, allowed plebeians to build houses on the neighbouring Aventine hill. Once the land had been allotted, the plebeians, either singly or in twos and threes, started constructing buildings and then cast lots as to who would have the upper and the lower storeys. Natelson has argued that the Greek word (kata´geia) used by Dionysius did not designate upper and lower storeys but rather houses built above each other caterpillar-style on the slope of the Aventine.17 He also argued that the mud-hut designs of that time would not easily support buildings three or four storeys high. Furthermore, from an early period the Roman state leased public land to private persons to erect houses for accommodation against the payment of a small rent. Thus, he concludes that the storeys occupied by the plebeians were rental rather than ownership units.18

11Pro recognition: Batlle Va´squez, La propiedad, 12; Ferrer and Stecher, Condominiums, Vol 1 par. 31; Ferrini, ‘La proprieta`’, p. 447. Contra: Buckland and McNair, Roman Law and Common Law (1952), p. 101; Weiss, Institutionen des ro¨mische Privatrechts (1949), p. 163; Butera, Comproprieta` di case per piani (1993), pp. 1–13; Racciatti, Propiedad por Pisos o por Departamentos (1958), p. 5; Visco, Le case in condominio. Trattao teo`rico-pra`tico (1967), Vol 1 pp. 10ss.; Leyser, ‘The ownership in flats. A comparative study’ (1958), p. 33; Natelson, ‘Historiography’, pp. 41, 48–56.

12D 41 1 7 10; D 43 18 2; D 44 7 44 1; D 46 3 98 9; D 9 2 50; Gaius 2 73; I 2 1 33; Schmidlin, Die ro¨mische Rechtsregeln (1970), p. 87; Meincke, ‘Superficies solo cedit’ (1971), p. 136.

13Quoted by Ferrer and Stecher, Condominiums, Vol 1 par. 31 no. 9.

14Cited by Batlle Va´squez, La propiedad, p. 14 no. 6.

15Dionysius 10 32 5, translated by Natelson, ‘Historiography’, p. 43.

16On the Lex Icilia, see Natelson, ‘Historiography’, p. 43 n. 119; Marchi, A Propriedade Horizontal no Direito Romano (1995), pp. 79–84.

17Natelson, ‘Historiography’, pp. 43–6.

18See also Racciatti, Propiedad por Pisos, pp. 6–7. Riccobono, Dal diritto romano classico al diritto moderno (1915), p. 520 n. 4 concedes that horizontal property might have occurred in practice but outside the law.

3.2. Classical Roman law

3.2.1. General arguments against recognition of separate ownership in parts of a building

Three general arguments are usually advanced against the recognition of ownership of parts of a building in classical Roman law. The first concerned the type of housing that existed at that time.19 Roman accommodation was divided into domus (detached, luxury multi-chambered houses for the wealthy), cenacula (attached houses connected by party walls), insulae (towering blocks of flats commonly four or five storeys high) and deversoriae (cheap lodgings for the poor). The blocks of flats (known as domus) accommodated the wealthy or commercial establishments on the ground floor, while the upper floors were divided into residential units of varying sizes from large, two-storeyed cenacula or attics for the well-to-do to tiny cubicles for the poor.20 The prevailing view is that these apartment buildings belonged to an aristocratic landlord who employed a middleman to sublease the various apartments to Roman citizens. The terms of the leases varied from one day in the modest deversoria to one to five years in the more spacious cenacula.21 However, at least one Romanist has argued that the nouveau riche in Rome who could not afford a freestanding domus might have put their resources together to erect an insula and then to divide the domus and the cenacula among themselves.22

The second argument is that Roman society, like other primitive societies, was characterised by extreme inequalities of wealth, with only a few who could afford to buy a house, let alone an entire block of flats. Roman society thus lacked a substantial middle class, which in modern times provides the bulk of apartment owners. This is compounded by the fact that most members of wealthy families, such as women and filii, were practically incapable of owning property.23 Even so, it is hard to argue that the 1,790 domus and 46,602 insulae, which existed in Rome during the last century of the Republic were all

19Natelson, ‘Historiography’, pp. 22–3.

20See further Frier, Landlords and Tenants in Imperial Rome (1980), pp. 3–18; Carcopino,

Daily Life in Ancient Rome (1940), pp. 22–44.

21Natelson, ‘Historiography’, p. 23; Frier, Landlords and Tenants, pp. 37, 51.

owned by wealthy aristocratic families and that the floors and rooms of the apartment blocks were all only available for lease.24

The most important argument against the recognition of apartment ownership in Rome is, however, the maxim superficies solo cedit.25 This makes separate ownership in a building or parts of a building impossible. However, the severity of this maxim was gradually watered down by the institution of superficies. Superficies was originally a long-term building lease granted by the state or municipalities. By the time of Hadrian, private land owners had begun to make use of this institution: if granted in perpetuity it was protected at first by praetorian remedies until ultimately the superficiarius was granted an action in rem, probably only in the time of Justinian.26 One author argues that condominium ownership was made possible by the evolution of the right of superficies,27 which allowed construction of a building on land belonging to another person. When it eventually became a right in rem it was the first basic modification of the non-severability of the right in land and the right in the building on the land. The same author felt that split ownership of buildings was the next logical step and that informal patterns of condominiums had developed even in the classical era of Roman law. This means that relations among occupants of multi-unit buildings were obviously governed more by customs and necessity than by rules deliberately formulated on the basis of prevailing doctrine such as superficies solo cedit.

3.2.2. Digest excerpts that possibly indicate recognition of condominium

The prevailing view is that while under Roman law it was possible for several persons to own undivided shares (communio pro indiviso) in a single multi-unit building, it was unimaginable that a person could acquire the exclusive ownership of part of a building.28 However, at least ten excerpts from the Digest have been quoted by authors

24Fernandez Martı´n-Granizo, ‘Propiedad Horizontal’, p. 118; Carcopino, Daily Life, p. 18. Natelson, ‘Historiography’, p. 46 argues that because a lot of housing was available does not mean that some of them were condominiums.

25Racciatti, Propiedad por Pisos, p. 5; Natelson, ‘Historiography’, p. 26.

26Buckland and McNair, Roman Law, p. 276; Frier, Landlords and Tenants, p. 29 n. 24; Natelson, ‘Historiography’, pp. 24, 28 n. 51

27Fernandez Martı´n-Granizo, ‘Propiedad Horizontal’, pp. 126–9; Ferrer & Stecher,

Condominiums, par. 31 n. 17.

28Racciatti, Propiedad por Pisos, p. 5; Buckland and McNair, Roman Law and Common Law, p. 21; Natelson, ‘Historiography’, pp. 48–56.

14 i n t r o d u c t i o n a n d c o n t e n t

as possible authority for the existence of condominium-like ownership in classical Roman law.29

Two of these texts deal with the vertical subdivision of a building into two or more units. The first deals with the case where a person owns two houses constructed under the same timber roof and leaves them by legacy to different persons.30 The passage allows such vertical division of a building and concludes that each owner will own the part of the roof directly above his house. The second deals with the case where an owner subdivides his house by constructing a wall through the middle of the building. The text tells us that such a division of one house into two was a frequent occurrence in Rome.31 These excerpts do not indicate that horizontal ownership of floors or cubic ownership of apartments or separate rooms was recognised in Roman law. However, this type of vertical subdivision of buildings is still to be seen in modern cluster housing and the division of rows of houses into separate units joined by a common gable in Scotland. The fact that the multi-unit buildings are divided vertically rather than horizontally does not mean that the designation of condominium or unit ownership is not applicable to such building constructions.

Two further texts cover buildings erected on sloping ground, presumably in mountainous areas. The first text deals with three houses built in caterpillar style on top of each other on a slope. The text says clearly that the house in the middle is burdened by a servitude (presumably of support) in favour of the house on the top, but that no such servitude exists in favour of the middle unit burdening the lowest unit. In the absence of such a servitude, the owner of the lowest unit was allowed to raise the party wall between the two units.32 This text

29These texts are conveniently collected and discussed by Batlle Va´squez, La propiedad,

pp.14–18; Fernandez Martı´n-Granizo, ‘Propiedad Horizontal’, pp. 119–23; Natelson, ‘Historiography’, pp. 48–56.

30Papinian D 8 2 36. See Natelson, ‘Historiography’, pp. 48–9; Batlle Va´squez, La propiedad, p. 12; Fernandez Martı´n-Granizo, ‘Propiedad Horizontal’, p. 122 n 22.

31Ulpian, D 8 4 6 1. See Natelson, ‘Historiography’, p. 51; Batlle Va´squez, La propiedad,

p.13; Fernandez Martı´n-Granizo, ‘Propiedad Horizontal’, p. 119 n 17; Berger, ‘Condominium – Shelter on a Statutory Foundation’ (1963), p. 987 n 5.

32Pomponian, D 8 2 25 1. See Natelson, ‘Historiography’, pp. 49, who contends that the fact that the houses were identified as superiores, mediae and inferiores does not necessarily suggest that they were piled on top of each other. According to him the existence of a party wall settled this score. The entanglement of buildings in a crowded Rome could well have contained apartments built on party walls as alluded to in D 41 1 28.