Экзамен зачет учебный год 2023 / European Condominium Law

optional for smaller schemes. The board is entrusted with the task of ensuring that the manager performs his duties properly and can, for this purpose, obtain copies of all items and documents pertaining to the control of the common property. Subject to the functions attributed to the manager by law and the general meeting, the general meeting may grant to the board any other mandate or delegation with a 75 per cent majority. This mandate or delegation is valid for one year and pertains only to expressly specified acts. The board must furnish the owners biannually with a detailed performance report (art. 577–8/1).31

4.3. General meetings

An interesting innovation of the Belgian CC is that the by-laws of the scheme must specify the 15-day period of each year within which the annual general meeting must be convened (art. 577–6 § 2 par. 1 read with art. 577–4 § 1 par. 4 no. 5). The purpose is to avoid delays in the calling of annual general meetings. The by-laws may, for instance, provide that the annual general meeting must be held between 1 and 15 April of each year.32

To accommodate modern practices, the revised Belgian CC provides that notification of general meetings may be sent by e-mail if the owner has expressly agreed to this in writing (art. 577–6 par. 3). Importantly, the notification must also specify the relevant condominium provisions with regard to the matters on the agenda (par. 2). Another innovation is that the agenda must consist of suggestions by the manager as well as written proposals received from the owners, condominium board and subsidiary associations at least three weeks before the meeting (par. 1). Late proposals will be relegated to the agenda of the next general meeting (art 577–6 § 4).33

The new Belgian law provides that a unit owner (and by implication not the manager) must be the chairperson (art. 577–6 § 5 par. 1). This reduces the role of the manager, but presumes that the elected chairperson will conduct the meeting, discussions, voting and the preparation of the minutes in an orderly fashion (art. 577-6 § 10 par. 2).34

31Timmermans, ‘Verniewde Apartementswet’, no.119; Carette and Swinnen, ‘Nieuwe appartementswet’, pp. 17–18.

32Timmermans, ‘Verniewde Apartementswet’, no. 62.

33Timmermans, ‘Verniewde Apartementswet’, no. 71.

34Timmermans, ‘Verniewde Apartementswet’, nos. 72–3.

596 r e c e n t d e v e l o p m e n t s i n c o n d o m i n i u m l a w

The revised Belgian CC adopts an interesting measure to avoid a quorum being de-constituted by owners leaving the meeting. The quorum is assessed at the beginning of the meeting and is not reviewed if owners depart. Furthermore, the amended Belgian CC allows for two possible quorums, namely, of either more than half of the owners representing at least half of the share values or any number of owners representing more than three-quarters of the share values (art. 577-6 § 7 pars. 2–3).35

Under the revised Belgian CC proxies may not be blank,36 but must contain the name of a proxy who need not be an owner, but may not be the manager. A proxy may be general or specific and is only valid for one general meeting unless contained in a notarially executed proxy (art. 577–6 § 7 pars. 2–4, 6). The number of proxies that one person may have is restricted to three unless the total value of the votes of the proxy is not more than 10 per cent of the total votes of the condominium (art. 577-6 § 7 par. 5).37

The revised Belgian CC provides that the right of co-owners and holders of a hereditary land lease, hereditary building lease, usufruct, or a right of use or habitation to participate in the general meeting is suspended until the interested parties have appointed a representative and notified the manager. The representative must then be notified of

meetings and is entitled to receive all relevant documents (art. 577-6 § 1 par. 2).38

Under the revised Belgian law votes are counted on the basis of the owners present at the time of voting. For the sake of clarity it is expressly provided that abstentions and uncompleted or spoilt ballot papers are not counted (art. 577-6 § 8 pars. 1- 2). To avoid a conflict of interest, a representative or employee of the owners’ association may not personally or by proxy take part in discussions or voting concerning the task entrusted to him (577-6 § 9).39

Under the new Belgian Law an absolute majority of the owners present or represented at the time of voting is required unless a qualified majority is requested under art. 577-7 § 1 (art. 577-6 § par. 1). As the words ‘subject to stricter provisions in the by-laws’

35Timmermans, ‘Verniewde Apartementswet’, nos. 74–6.

36This deprives the manager who regularly receives most of the blank proxies of the opportunity to grant these to persons devoted to him.

37Timmermans, ‘Verniewde Apartementswet’, nos. 77–81.

38Timmermans, ‘Verniewde Apartementswet’, no. 59.

39Timmermans, ‘Verniewde Apartementswet’, nos. 82–4.

were deleted in the reform of 2010, the provisions regarding the majorities required are mandatory and cannot be deviated from.40 New matters that require a 75 per cent majority concern the establishment of condominium boards for smaller schemes; restrictions on expenditure on outsourced mandates and contracts;41 and works pertaining to private units, which for special economic and technical

reasons must be performed by the owners’ association (art. 577-7 § 1 no. 1 c) d) and e)).42, 43

The revised Belgian CC allows for the adoption of written resolutions (i.e. a resolution signed by all members of the association) with certain exceptions. Such exceptions include matters such as the acquisition of land.44 The manager must prepare minutes of such resolutions (art. 577-6 § 11), record them in a register within thirty days of the meeting and make them available to the owners and other subsidiary managers (art. 577-6 § 12).45

The revised Belgian CC makes the keeping of minutes compulsory and prescribes that the minutes must record the resolutions adopted at the meeting with an indication of the majority attained and the names of the individuals who dissented or abstained. The minutes must be signed by the chairperson, the secretary and all owners and proxies still present at the end of the meeting (art. 577-6 § 10).46 Any owner can request the court to annul or amend irregular, fraudulent or unlawful resolutions within a period of four months of the date of the general meeting (art. 577-9 § 2 par 2).

4.4. Full disclosure on transfer of a unit

The revised Belgian CC requires full disclosure of the financial state of the condominium and other material information to the purchaser before the conclusion of a contract of sale. The notary or professional

40Timmermans, ‘Verniewde Apartementswet’, no. 90.

41By this the legislature wanted the general meeting to limit the freedom of the manager to enter into whatever contracts when works ate outsourced to third parties.

42For example, a pond erected by the owner of a ground floor causes damage to a subterranean common garage by water leakage. The general meeting may eventually have the pond demolished.

43Timmermans, ‘Verniewde Apartementswet’, nos. 92–3.

44An authentic deed is required for the amendment of the statutes, transactions by which immovable property is acquired or disposed of resolutions to dissolve the association and the completion of the liquidation of the owners’ association.

45Timmermans, ‘Verniewde Apartementswet’, nos. 87–8.

46Timmermans, ‘Verniewde Apartementswet’, nos. 85–6.

598 r e c e n t d e v e l o p m e n t s i n c o n d o m i n i u m l a w

intermediary acting on behalf of the seller or the purchaser must obtain this information from the manager. This includes, among others, the sum total of the working and reserve capital; the total contributions still owed by the seller on transfer; a review of pending court proceedings; the minutes of ordinary and extraordinary general meetings for the previous three years and a copy of the most recent balance sheet approved by the general meeting (art. 577-11 § 1 nos. 1–6).47

On transfer of a unit inter vivos or by succession, the notary concerned must provide further information. This includes, among others, the total sum spent or to be spent on the preservation, maintenance, repair and improvements before the completion date; the state of the call for contributions approved by the general meeting before the completion date; and the projected cost of any urgent works, the cost attributable to the acquisition of common parts approved by the general meeting and an estimate of any sums that may be owed by the association resulting from disputes that have arisen before the completion date (art 577-11 § 2 par 1 nos. 1–4).48

If the new owner is not in possession of the pre-contractual documents mentioned above, the notary must request them from the manager and hand them over to the new owner. Unless there is a contrary agreement between the parties as to their contribution to the debts, the new owner bears the debts mentioned above (hence the importance of full disclosure). The ordinary expenses are borne by the new owner from the date that he makes effective use of the common property. In the case of a transfer of ownership the transferee is also responsible for the payment of extraordinary expenses and for contributions approved by the general meeting between the conclusion of the contract and the execution of the authentic deed (art. 577-11 § 2 pars. 2–6).49

In the case of transfer or subdivision of a unit, the notary concerned must inform the manager of the date on which the deed will be executed, the particulars of the unit concerned and the identity and the present and possible future addresses of the purchaser (art. 577-11

47Timmermans, ‘Verniewde Apartementswet’, nos. 134–5.

48In all these cases payment was only sought by the manager after the date of payment: Timmermans, ‘Verniewde Apartementswet’, no. 136.

49Timmermans, ‘Verniewde Apartementswet’, no. 136.

§ 3). The cost of providing the pre-contractual information and the information on transfer is borne by the seller (art. 577-11 § 4).50

In the case of transfer of a unit, the transferor remains the creditor of the association for his share in the working capital which corresponds with the period during which he could not effectively use the common property. However, his share in the reserve capital remains the property of the association (art. 577-11 § 5 nos. 1–2).51, 52

On the signature of the authentic deed, the notary concerned must deduct the amounts owed by the transferor on ordinary and extraordinary expenses from the proceeds of the sale. He must, however, first satisfy the holders of privileges and mortgages on the unit and mortgage creditors who have given notice of an attachment of the unit or assignment of the debt. If the transferor disputes the arrears, the notary concerned must inform the manager by registered post of the dispute within three working days after receipt of the authentic deed of transfer. In the absence of a notice of precautionary or executive attachment within twelve days of receipt of the deed, the notary may legally pay the deducted arrears to the transferor (art. 577-11/1).53

4.5. Termination and winding up

The condominium regime ceases to exist if it is terminated by a unanimous resolution of the owners. Such resolutions may provide for the demolition of an outdated building or for termination on the grounds that the building has been destroyed by fire. Alternatively, when all the units are acquired by one person the condominium regime can be terminated by that owner (art. 177-12 par 1). Instead of simply referring to the Law on Companies for the winding up of the condominium (as was done by the old Civil Code), the revised Belgian CC refers only to the relevant provisions of this Law, namely, articles 186–8, 190–5

50Timmermans, ‘Verniewde Apartementswet’, nos. 137–8.

51‘Working’ capital is defined in art. 577-11 § 5 par. 3 as the sum of the advances made for the payment of periodic expenses such as for the cost of heating and electricity of the common parts, the cost of administration and the expenses paid for a caretaker. ‘Reserve capital’ is the total of the amounts paid periodically to recover non-periodic expenses such as the expenses for the repair or renewal of the lift or the provision of a new roof cover.

52Timmermans, ‘Verniewde Apartementswet’, no. 139.

53Timmermans, ‘Verniewde Apartementswet’, no. 140.

600 r e c e n t d e v e l o p m e n t s i n c o n d o m i n i u m l a w

§ 1 and 57. This means, for example, that a Justice of the Peace and not the Commercial Court is competent to deal with the winding up of Belgian condominium associations.54

4.6. Twotiered management structure

The most important innovation of the revised Belgian CC is the introduction of a two-tiered management structure for large and mixed-used condominium schemes.55 The CC allows for the physical subdivision of condominium schemes consisting of more than twenty units into areas of general common property and limited (particular) common property and for the former to be managed by the main coowners’ association and the latter by a subsidiary co-owners’ association for each limited common property area. As with the main association, the subsidiary associations have full legal personality, although the owners are free to establish factual subdivisions of the building or buildings managed by subsidiary associations without legal personality.56

In the case of a group of buildings, each building can be designated as a limited common area as long as there are more than twenty units in the scheme. In a scheme comprising only one building, the building must be physically divisible into two or more clearly demarcated common parts (this judgement is to be made on the basis of architectural criteria). This is generally possible where the building consists of separate wings with separate entrances, or where physically divided structures, such as two staircases, provide separate entrances to two separate upper floors. The term ‘kavel’ (unit) is applicable to the most diverse kinds of units, such as residential, office and business units, as well as garages, parking spaces and storage places. In a one building mixed-use scheme, the building can be subdivided according to the purpose for which each part of the building is used. The subdivision of the building into two limited common property areas comprising business units on the first two floors and residential units on the next ten floors is a prime example of such a subdivision.57 Besides the

54Timmermans, ‘Verniewde Apartementswet’, no. 142.

55See also implementing provision art. 67 of the Italian CC.

56Art. 577–3 par. 4. See Timmermans, ‘Vernieuwde Appartementswet’, nos. 8–11; Carette and Swinnen, ‘Nieuwe appartementswet’, no. 5.

57Timmermans, ‘Verniewde Apartementswet’, nos. 14–15.

physical demarcation of the property, the constitutive deed of the scheme must also contain a corresponding provision that provides for the establishment of subsidiary owners’ associations.

When these constitutive conditions are complied with, each of the buildings in a group of buildings and each physically demarcated part of a one building scheme is managed by a subsidiary co-owners’ association under the same conditions as the main co-owners’ association. Furthermore, each member of a subsidiary association is not only a member of that particular subsidiary association but also a member of the main association.58 As the operation of subsidiary associations may be expensive, the owners are given a choice to dispense with legal personality by a resolution supported by 80 per cent of the owners.59

To distinguish between the main association and subsidiary associations and to establish a two-tiered management structure, two deeds of subdivision must be prepared in practice. The first is a main (ordinary) deed of subdivision by which the scheme is divided into units and common property. The second is a subsidiary (particular) deed of subdivision under which the scheme is subdivided into general common property and limited (particular) common property. In such a case the main deed of division is the principal deed of division to which the subsidiary deed of subdivision is annexed.60 The main deed of subdivision must contain the normal information in addition to the following components:61 a provision which caters for the subdivision of the group of buildings or one building into general and limited common property; a demarcation of the general common property and the limited (particular) common property; the designation of the units and the members of the main association; an allocation of shares in the general and the limited common property; an indication of the organs of the main association, namely, the general meeting and the manager; the exercise of voting rights by all owners of the main association according to their share in the common property; and the competencies, capabilities and functions of the main and the subsidiary associations.62

If the owners opted for a subsidiary association with legal personality, then the main association has the competency to control the

58Timmermans, ‘Verniewde Apartementswet’, nos. 17–18.

59Art. 577 § 1 no. 2 g); Timmermans, ‘Verniewde Apartementswet’, no. 19.

62 Timmermans, ‘Verniewde Apartementswet’, nos. 21–30.

602 r e c e n t d e v e l o p m e n t s i n c o n d o m i n i u m l a w

general common parts and general common facilities,63 while the subsidiary associations are only competent to control the common parts specified in the deed of division as limited common property.64 Thus, in the case of a one building scheme consisting of two wings, the main association would be exclusively responsible for the repair of the foundation, which is a general common part and essential for every unit. The subsidiary association of wing A on the other hand will be responsible for the repair of the lift, which only serves the co-owners of wing A. The main co-owners’ association will be responsible for the conclusion of a master insurance policy that covers the risk of damage to the building as a whole.

Apart from the main deed of subdivision, the main association must prepare a subsidiary deed of subdivision for the particular building in a scheme consisting of a group of buildings or for the particular part of the building in a one building scheme. As this subsidiary division occurs according to the ordinary rules of subdivision applicable to the main subdivision, these rules must be strictly complied with.65 Analogously to the main deed of subdivision, the subsidiary deed must contain the following components: a provision indicating that the particular building or particular part of a building forms part of a subsidiary subdivision; a description of the limited common property to which the subsidiary subdivision applies;66 an indication of the units and the members of the subsidiary association established for that building or part of the building; an account of the share values allocated to the designated building or part of a building; an indication of the organs of the subsidiary association, namely, the general meeting and the manager; the competence of the subsidiary association; and the voting power of the members of the subsidiary association who exercise their votes in accordance with their share value in that particular limited common area.

63Timmermans no. 28 comments that the legislator did not clarify what must be undertood by ‘zaken die tot het gemeenschappelijke beheer van de mede-eigendom

66Timmermans, ‘Verniewde Apartementswet’ no. 33 gives the following example: In the case of a building with two entrances the entrance of the first part of the building would form part of the limited common property of the first wing while the staircase of the second would be part of the limited common property of the second wing. By contrast, the foundations and the common roof of the building which serve both wings would be general common property.

It has been pointed out that a general description of the competences of the main and subsidiary associations may lead to conflicts pertaining to issues with regard to general common matters. These conflicts would tend to surface at the main general meeting. For example, suppose the residents of Block A in a scheme consisting of three buildings want to install a security system in the complex, while the residents of Blocks B and C are against it. Since the system would affect the entire scheme, only the main general meeting could approve it with the required majority.67

With regard to the establishment of subsidiary associations, a distinction must be made between new and existing schemes. For new schemes placed under the regime of apartment ownership, the competence to allow further subdivision into subsidiary associations rests with the developer who prepares the deed of subdivision and the statutes of the scheme. If these documents do not make provision for a two-tiered management structure, the competence for such creation lies with the general meeting of the main association.68

The developer, with the assistance of his notary, can in principle decide to implement one of two possible scenarios. The first scenario is where the statutes of the scheme cater for the establishment of a subsidiary association with legal personality. If such provision is included, the secondary association is created by operation of law under the same conditions as the main association,69 namely, on the transfer or legal allocation of at least one unit in the designated limited common area after the establishment of the apartment ownership regime and the transcription of the statutes in the public registers of the Mortgage Register.70 The second scenario is where the statutes do not provide for a two-tier regime but the owners want to introduce such a management regime because of its perceived advantages. In this scenario the Belgian reformers accepted the French law assumption that the general meeting of the main association can establish secondary associations subject to the proviso that it complies with the requirements of the law.71 The general meeting of the main association may pass a resolution to amend the statutes of the scheme. The deed of amendment must describe the subsidiary subdivision of the common

70Timmermans, ‘Verniewde Apartementswet’, no. 42.

71Baudouin P., ‘Les syndicats secondaires de coproprie´te´’ (1981), p. 717.

604 r e c e n t d e v e l o p m e n t s i n c o n d o m i n i u m l a w

parts into general and limited common property and indicate the establishment of subsidiary associations with legal personality. A majority of 80 per cent is required for the establishment of secondary associations either with or without legal personality.72

The position is more complicated where the owners of an existing scheme want to adopt a two-tier management regime. In such a case the constitutive deeds and especially the statutes of the scheme must be scrutinised. In the event that the deed of subdivision provides for a regime of subsidiary associations, the Belgian Supreme Court decided in 2004 that this caters only for the establishment of a factual subsidiary association.73 After the implementation of the Law of 2010 such a provision does in principle cater for the establishment of subsidiary associations with legal personality as long as the provisions are not in conflict with the new provisions of the law. However, as the owners are in such a case confronted with a completely novel situation, Timmermans suggests that the owners should convene a special general meeting to discuss the matter.74 According to Timmermans, the purpose of the meeting should be to formalise the introduction of the regime, for instance, from the beginning of the next financial year, and to organise matters of practical importance, such as the conclusion of the accounts of the current year of operation, the clarification of each association’s future competence and the election of managers for the subsidiary associations.75

The position is different in the event that the provisions in the statutes of existing schemes with regard to the establishment of subsidiary associations are in conflict with the provisions of the new law. For example, the statutes may provide for the establishment of three subsidiary associations in a scheme consisting of three separate buildings without providing for a main association. In such a case, even though article 577-3 par 4 is mandatory, the general meeting would have to amend the statutes of the scheme to conform to the provisions of the new law before the owners can introduce a two-tiered management system into the existing scheme by an 80 per cent majority.76

72This is despite the fact that a three-quarters majority is required for the amendment of statutes insofar as it concerns the control of common parts. See Timmermans,‘Verniewde Apartementswet’, no. 44.

73Cass. 3 juni 2004. NjW 2004, 953.

74Timmermans, ‘Verniewde Apartementswet’, no. 46.

75The manager may be the same or different from the manager of the main association.

76Art. 577-7 § 1 no. 2 f); Timmermans, ‘Verniewde Apartementswet’, no. 47.