Экзамен зачет учебный год 2023 / European Condominium Law
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of the apartment association approved by a simple majority is required for painting the building with expensive gloss paint.
(b)The above-mentioned provision is also applicable where the apartment owners want to install a lift in the building. As this improvement does not fall within the limits of regular administration, it cannot be authorised by a simple majority vote of the apartment owners; an agreement of all apartment owners is necessary. This is fortified by another provision, which requires an agreement of the apartment owners for alterations to the building that go beyond ordinary construction or other maintenance work (§ 16 (1)). This provision is mandatory and cannot be reduced to a majority vote by agreement of the apartment owners.
Where an apartment association is established, the same rules apply when the manager is replaced by the association906 Therefore, the
apartment association has no authority to decide on the installation of a lift, as this matter does not fall within the scope of the manager’s authority. Consequently, because the installation of a lift exceeds regular construction and maintenance work, the installation can only be undertaken by agreement among the apartment owners.
(c)The same rules also apply where, as here, the apartment owners want to install a solarium on the roof. This does not fall within the limits of regular administration. Therefore, an agreement by the apartment owners allowing the installation of a solarium is required. The legislative style of Estonia is abstract and does not specifically mention solariums, saunas, pools, gyms, basements or balconies, with the exception of garages (§ 2 (1)). In practice, apartment owners of the top storey were allowed to extend their apartment into the loft, authorised by unanimous agreement of all the owners.
Where an apartment association is established, the situation is the same as described in (b). The decision to install a solarium on the roof of the building is not within the powers of the apartment association.
(d)The termination of the community of apartment owners cannot be demanded by an apartment owner or any third person (Law on Apartment Ownership § 9). Apartment ownership can only be terminated by the closure of the apartment ownership register in the land office (§ 6 (1)). This register can be closed on the basis of a notarially certified registration application submitted in three scenarios: first, by all the apartment owners; second, by a majority of the apartment owners if
906 Pa¨rna, ‘Apartment Ownership Legislation’, p. 109.
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the structure has become completely unusable and a certificate to this effect from the local authority is annexed; and third, by a person who has acquired all the apartments in the scheme (§ 6(2) nos. 1-3). Thus, only if the owners in group (d) could convince the majority of the apartment owners that the building has become completely unusable and the local authority has certified accordingly would they be able to terminate the scheme. It must be noted that the terms ‘not modern’ or ‘outdated’ as used in this Case do not completely match the term ‘unusable’ as used in the Law on Apartment Ownership.
Termination of an apartment association is regulated in the Law on Non-profit Associations, which provides that an association is dissolved if the membership of the association has diminished to below two or another number as specified by law or in the articles of association; in the event that two-thirds of the members present, or represented at a general meeting, vote in favour of dissolution; by the declaration of bankruptcy of the non-profit association or abatement of bankruptcy proceedings before the declaration of bankruptcy; or if other grounds for dissolving the association as stated in the General Part of the Civil Code (§ 39) are present (Law on Non-profit Associations § 37).
Descriptive formants
The guidelines upon which one has to make a decision regarding the work carried out on the common parts envisaged in (a), (b), and (c) are contained in the provisions of the Law on Apartment Ownership. Where the work or alteration can be classified as within the scope of regular administration and maintenance of the scheme, a majority resolution would be sufficient compliance with the relevant rules. Any other alterations of the common property must be agreed by all the owners of the scheme.
The questions relating to the termination of the community of apartment owners are regulated exhaustively by the provisions of the Law on Apartment Ownership. Termination of an apartment association is regulated by the Law on Apartment Associations, the Law on Non-profit Associations and the General Part of the Civil Code.
Metalegal formants
The requirement that works falling outside the sphere of regular administration or maintenance can be undertaken only with the agreement of all the apartment owners is based on the principle that all apartment
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owners may not have sufficient funds to pay for certain types of alteration to the common property. Therefore, it would not be fair to burden some apartment owners with financial obligations that they cannot fulfil.
The fact that an apartment ownership scheme cannot be terminated by the application of an owner or a third party shows that apartment ownership, as opposed to ordinary co-ownership, is meant to be as permanent as possible. Therefore, the requirements for terminating the scheme are very stringent.907 The dissolution of an apartment association is not so important, for once it is dissolved, the scheme is managed by the community of apartment owners under the provisions of the Law on Apartment Ownership.
France
Operative rules
All these changes require a specific type of majority resolution of the general meeting, depending on the intended changes.
(a) Repainting of the building is classified as a matter of simple maintenance (Decree on Apartment Ownership art. 45). It requires a majority of 50 per cent of votes of owners present or represented at the general meeting and who voted for or against the proposed resolution (Law on Apartment Ownership art. 24). It does not matter if the repainting uses expensive gloss paint. The association of owners (syndicat) is in charge of the maintenance of the building (art. 18).
(b)The installation of a lift in the building in order to modernise the condominium amounts to an alteration, addition or improvement (transformation, addition ou amelioration) of the scheme, which requires a double majority (art. 26 c), namely, a majority of the owners present or represented at the meeting, representing at least two-thirds of the vote by share value. If the installation of the lift encroaches on any part of an apartment, the consent of the owner concerned must also be obtained (art. 26 c).
(c)If an owner or a group of owners want to acquire a portion of the common parts for his or their private use, he or they must acquire a right of exclusive use (droit de jouissance exclusive) of that portion, for which a resolution with a double majority as explained in the previous paragraph is required (art. 26 b).
907Paal, ‘Vo˜ lao˜ igusseaduse mo˜ ju valitseja nimetamisele ja o˜ igussuhtele korteriomanikega’ (2003), p. 295.
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(d) In French law, a condominium can be terminated in the event of destruction of or damage to the building by natural disaster (arts. 38 – 41). In such a case the owners must, at a meeting to be held within two months after the disaster, decide by simple majority in number of the owners present or represented if the building must be reconstructed or not. If not, the condominium must be liquidated and the assets divided among the owners in proportion to their quotas. There are no special provisions in the Law dealing with dilapidation of the building on account of the obsolescence (or with the building having become outmoded) or termination of the condominium by order of court. It has been suggested that the scheme could be terminated by the sale of all the units to a single owner.908
Descriptive formants
(a) and (b) Although the Law of 1965 contains specific provisions on the majority needed for a number of works on or alterations to the condominium building, it is not always easy to determine in which category a particular work or alteration falls. The distinction between works of maintenance and works resulting in improvement of the scheme, which require different majority decisions, are not always clear.
(c) Regarding the right of exclusive use of a portion of the common parts of the building, the French High Court has decided that such a right is a limited real right.909 In general, French academics910 do not agree with this analysis, because under French property law no one is allowed to have a limited real right on land owned by another unless it can be classified as a praedial servitude (servitude). This view is justified by various complicated reasons, which are not relevant for this project. In actual fact, there is no real difference between a right to the exclusive use of a portion of the common parts and the use of an apartment or private unit, apart from the sharing of common charges. Besides, the sales of portions of the common parts or the creation of an exclusive right of use of a portion of the common parts are subject to the same majority voting requirements.
908Givord et al., La coproprie´te´ no. 670; Cass. Civ. 3e`me 28 Jan. 2009 no. 06-19650. The Law on Apartment Ownership art. 1, which requires that a condominium must exist of more than one unit, has been held to be a mandatory provision: Cass. 13 April 1988 no. 86-19171.
909Cass. Civ. 3e`me 4 March 1992 no. 90-13145; Cass. Civ. 3e`me 24 Oct. 2007 no. 06-19260.
910See Kan-Balivet, ‘La nature juridique du droit de jouissance exclusif sur les parties communes’ (2008), p. 1765 nos. 18–24.
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(d) The Law on Apartment Ownership only deals with the question of the reconstruction of the building if it has been destroyed (arts 38 to 41). There is no provision regarding the deemed destruction of the building, but there is no doubt that if such a resolution were permissible to terminate the scheme a unanimous vote would be necessary.
Metalegal formants
(a) and (b) The law tries to find a balance between the need to carry out works of maintenance on the building and the right of an owner to refuse to pay for improvements of the building, because of the costs involved. The legislator solves this problem by requiring a different majority vote: essential repairs only require the majority of the votes expressed by owners present or represented at the general meeting, whereas improvements to the building will be much harder to undertake as they require a double majority as explained above. This balance seems quite difficult to achieve in view of the frequency by which the Law on Apartment Ownership has been amended on this issue.
(c) Most jurisdictions permit the establishment of exclusive use areas on the common property in favour of one or more owners by the appropriate resolution at a general meeting. In order to create certainty, such a right should be given property status and registration of such rights should be allowed.
Germany
Operative rules
(a) Each owner can demand that the building is repainted if the old paint is weathered. Repainting with the same paint as in the past is a case of ordinary maintenance of the common property, which is regarded as a question of proper management for which a simple majority resolution is required (Law on Apartment Ownership § 21 pars. 3 and 5). Repainting with gloss paint could fall under the concept of ‘modernising mainten-
ance’ (modernisierende Instandsetzung), for which a simple majority is sufficient since the reforms of 2007 (§ 22 par 3).911 If the owners do not pass
an appropriate resolution at a meeting, each individual owner may seek judicial intervention (as was explained under Case 8).
911For definition of this term, see Timme, Elzer et al., WEG Kommentar (2010), § 22 no. 262 ff.
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(b)As the installation of a lift will change the current appearance of the building, it will impair the rights and interests of all owners. Consequently, a single owner generally has no right to insist on such
an installation. Exceptions are possible if the owner dearly needs a lift, for example, if he or she is disabled.912 If no such exception applies, a
lift can only be installed by way of a qualified majority decision. For such so-called measures of modernisation, a double-qualified majority is necessary, comprising the consent of three-quarters of all owners in number – not just those present at the meeting – as well as the majority measured by co-ownership shares.
(c)The solarium can only be installed without the unanimous consent of the other owners if it does not impair their rights and interests
(§ 22 par. 1). This is a question of degree; impairments that are trivial do not require approval of all the owners.913 Installing a solarium on the
roof will most likely be considered a significant enough change to the building’s structure to require unanimous approval.914 In any case, how-
ever, even if the general meeting approves, by resolution, the installation of a solarium, any such purported resolution is invalid in that the end result will cause de facto exclusive use rights for the benefit of the
owners of the top storey. The conferral of any such exclusive usage right exceeds the limits of ‘resolution competence’ of the owners.915
(d)The reconstruction of even an outmoded building falls within the obligations of owners and can, as such, be demanded by any one owner. Only if more than half of the building is destroyed and this particular destruction is not covered by insurance can owners avoid their obligation to reconstruct. In such a case, the apartment ownership regime itself may be terminated (§ 11 par. 1). In all other cases, the building will have to be reconstructed and termination of the scheme will be ruled out.
Descriptive formants
The responses to this Case are based on the Law on Apartment Ownership §§ 21 par 5 and 22.
912See Jennißen and Hogenschurz, WEG Kommentar, § 22 nos. 32, 36.
913See BVerfG ZMR 2005, 634; Jennißen and Hogenschurz, WEG Kommentar, § 22 no 30.
914See BayObLG ZWE 2001, 483 (sauna on the roof).
915OLG Mu¨ nchen ZMR 2008, 560; BGHZ 145, 158; Ha¨ublein, ‘Bauliche Vera¨ nderungen nach dem novellierten WEG’ (2007), pp. 752–3.
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Metalegal formants
The provisions concerning modernisation of condominium buildings were amended in 2007 to make it easier for owners to upgrade their property. Prior to the 2007 reform, a modernisation could not be agreed simply by majority resolution. Since the reform, a doublequalified majority, comprising three-quarters of all owners in number as well as in share values, can resolve to modernise the scheme. Such a resolution will not be annulled in a court of law unless the modernisation neither changes the ‘character of the scheme’ or inflicts ‘unfair disadvantages’ on owners (§ 22 par. 2).
Greece
Operative rules
The management and administration of the condominium are assigned to all the owners in the condominium unless the by-laws dictate otherwise (Law on Ownership of Storeys art. 4 par. 1). This means that in principle a unanimous resolution is required for all acts of administration. This differs substantially from the administration of common property owned by all the owners in undivided shares, which is administered by simple majority vote and, if this cannot be attained, by seeking a judicial decision (CC arts. 788–790). With regard to the accumulative application of the condominium provisions of the CC, the prevailing view is that a unanimous decision is needed before a condominium can be managed and administered by mere majority vote.916 From the above it can be inferred that in the Case at issue if the co-owners cannot agree, or a majority laid down in the by-laws cannot be reached, none of the proposed renovations will take place.
(a) In Greece, management and administration of the condominium cover any work that is done in the common interest, relating to the maintenance, improvement and use of the common property (art. 4 par. 1). Consequently, the repainting of the building requested by the group of owners is part of the management and administration of the condominium.917
If the expense incurred in the repainting of the building can be classified as ‘necessary’,918 any owner can have the repainting done as work necessary for the maintenance and renewal of the common property,
916 Spyridakis, Condominium, p. 224. |
917 Ibid. p. 226. |
918 See Case 3 for repairs that are considered ‘necessary’.
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which neither harms the rights of other owners nor alters the intended purpose of the common property (arts. 5 subpar. α΄, 3 par. 2 and CC art. 788 applicable to unilateral management operations).919 The owner who has carried out the necessary repairs (repainting the building) is entitled to claim a contribution from the other owners in proportion to their quotas (interpretation of arts. 5 subpar. β΄ and CC art. 794).920
If it cannot be classified as a necessary expense, it would amount to an improvement and would need the unanimous consent of all the owners unless it is stipulated in the by-laws of the condominium that a majority resolution is sufficient for acts of management and administration.921 Where the required decision cannot be reached, any owner
has the right to demand that the court grants an appropriate order to benefit all the owners (CC art. 790 sent. 1).922
In the above scenario the repainting of the building with expensive gloss paint would be costly, and an owner who invests in such a luxury will not be able to claim contributions towards the entire cost from the other joint owners. Such an owner may, however, be entitled to claim contributions to reimburse him for his expense to the extent that it was necessary. So, for example, the claim of an owner who invests in gloss paint himself will be limited to the cost of a regular repainting job.923
The above discussion shows the default position. However, the by-laws of a particular scheme may impose a general obligation on the management body to maintain and repair the common property without a special resolution being needed in a particular case.
(b) The installation of a lift would be regarded as a renewal or an improvement of the building, and thus within the management function of the owners. Consequently, they may decide unanimously, or by majority vote (if permitted in the by-laws), to install a lift in the building in order to modernise the condominium. If the required decision is not reached, any owner can approach the court for an appropriate order as explained above (CC art. 790 sent. 1). Furthermore, if the installation of the lift can be classified as a necessary repair and the installation does not change the form and substance of the building, any of the owners are entitled to install the lift and claim contributions from the other owners to cover his expenses (Law on Ownership of Storeys art. 5
919 Spryridakis, Condominium, p. 231. |
920 Tsetsekos, Individual Ownership, p. 165. |
921Spryridakis, Condominium, p. 230.
922Konstantopoulos, p. 345; Spryridakis, Condominium, pp. 225, 231.
923Tsetsekos, Individual Ownership, pp. 209–210; Konstantopoulos, Floor Ownership, p. 263.
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sent. 1).924 However, if the lift would cause a substantial alteration of the common property or would be disproportionately expensive, its instal-
lation cannot be authorised by a majority decision or pursued by an action in court (CC art. 792 par. 1)925.
(c)The roof926 or terrace927 on which a group of owners seek to build a solarium is jointly-owned and shared by all owners in proportion to their quotas (Law on Ownership of Storeys art. 7 par.1). Therefore, following on from previous answers, the addition of a solarium on the jointly-owned roof for the exclusive use of certain co-owners is unacceptable as it prevents the other co-owners from using the common property (arts. 3 par. 2 and 5 sent. 1). The Greek courts have considered whether the installation of solar heating on the roof of the condominium for the benefit of only one or more than one, but not all, the owners is permitted. The court decided that if there is no provision in the by-law or a specific agreement among the owners, the permissibility of such an installation must be determined in accordance with the concept of abuse of rights (CC art. 281).
(d)The Law on Ownership of Storeys provides that the condominium is dissolved if the building is destroyed completely or damaged to the extent of more than three-quarters of its value (art. 9 par. 1). The Law refers to
physical destruction or damage rather than notional devaluation on account of obsolescence.928 Termination of the condominium does not,
however, lead to the dissolution of the co-ownership relationship among the former owners who become co-owners in proportion to their quotas of the land and whatever remains on the land. Each co-owner is entitled to request the court to distribute the common assets among them.
In the event that the condominium building is not destroyed or damaged to more than three-quarters of its value, the entire property can be disposed of if none of the co-owners want to rebuild (art. 9 par. 4). The owners may now, by unanimous resolution, decide not to reconstruct the building but to sell the property and thus terminate the
924Spryridakis, Condominium, p. 189.
925Konstantopoulos, Floor Ownership p. 253; Tsetsekos, Individual Ownership, p. 220.
926Kallimopoulos, Interpretation, art. 1117 no. 37; Konstantopoulos, Floor Ownership, p. 185; Tsetsekos, Individual Ownership, pp. 130–1; Areios Pagos 378/1979 (NoV 27, 1436); Athens Court of Appeals 4637/1994 (EDP 1995, 54).
927Areios Pagos 609/1962 (NoV 11, 451); Areios Pagos 615/2006 (NoV 2006, 1023); Areios Pagos 135/2009 (ChrID 2009, 717) comment by Christakakou-Fotiadi, 720.
928Konstantopoulos, Floor Ownership, p. 476; Spyridakis, Condominium, p. 366; Crete Court of Appeals 412/1990 (EDP 1992, 80); Areios Pagos 138/1995 (EDP 1995, 19).
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condominium regime. The proceeds of any sale of the property are shared between co-owners pro rata in accordance with their shares in the common property.929 Thus, the grounds for the termination are explicitly and strictly provided for by the above provisions and the simple willingness of a select group of owners to terminate the scheme is not one of these reasons.
Descriptive formants
The answers to (a), (b) and (c) are based on the interpretation and reconciliation of the relevant provisions of the Law on Ownership of Storeys and the Civil Code as well as case law and academic literature on the topic. These sources show that there is no clear distinction between authorised changes, improvements and additions to the common property requiring different resolutions for each type of change. Necessary repairs also seem to require unanimity to be carried out collectively. This leaves single owners with a community spirit to carry out necessary repairs and claim contributions from the other owners.
Apart from the two grounds for termination of the scheme mentioned in the Law on Ownership of Storeys, there are other causes of termination that are consistent with the nature of condominiums. For example, the transaction or judicial decision by which the condominium was established may be cancelled if all owners agree to their cancellation.930 Furthermore, the concept of private autonomy allows for the creation of a condominium regime subject to conditions and time periods. Compliance with of these conditions and time periods will also lead to termination of the condominium regime.
Metalegal formants
(a) and (b) Maintenance, repair, replacement and renewal is indispensable to keep the common parts of the building and the common facilities in a state of proper functioning corresponding to the intended purpose of each item. These measures should be in line with technical developments and the needs of society.
(c) Greek law should consider the possibility that certain parts of the common property may be demarcated as limited common property or exclusive use areas for the use of one or more owners by unanimous or special resolution. These areas can then be sold to owners who are
929Tsetsekos, Individual Ownership, pp. 257–8.
930Konstantopoulos, Floor Ownership, p. 467; Tsetsekos, Individual Ownership, pp. 255–6; Areios Pagos 2037/1990 (EDP 1992, 14).