Экзамен зачет учебный год 2023 / European Condominium Law

does not necessarily refer to three separate houses, but could refer to a rudimentary form of apartment ownership that did not yet recognise the necessity for implicit reciprocal servitudes for lateral and subjacent support among all the units in an apartment ownership scheme. The second text deals with a building subdivided into a cellar and a ground floor unit possessed (and presumably owned) by two persons.33 The issue concerned which of the two possessors was entitled to institute a possessory interdict uti possidetis for disturbance of possession. Labeo decided that if the apartment on the ground floor had an entrance to the street, the owner of the house on top of the cellar, rather than the owner of the cellar, was entitled to the possessory interdict.34 Otherwise the owner of the lower unit was so entitled, with the owner of the ground floor being entitled to praetorian remedies and, if applicable, actions based on lease.35 This could indicate that something in the nature of horizontal property was allowed for buildings erected on slopes, as long as the subdivided units had separate entrances to the street, a requirement still adhered to by the modern Spanish and Portuguese and most of the Latin American statutes on condominium.36

There remain at least four texts that could point to the practice of individual ownership of parts of a single building in Roman law. In the first text, the jurist Aristo gives a legal opinion to the effect that smoke cannot be discharged from a cheese factory into higher buildings (in superiora aedificia) unless there is a servitude to this effect.37 Although this text is usually construed as dealing with higher buildings

33Ulpian, D 43 17 3 7–8. See Fernandez Martı´n-Granizo, ‘Propiedad Horizontal’, p. 120

n.19. Natelson, ‘Historiography’, p. 53–4 advances several arguments as to why this text does not support the concept of horizontal ownership in Roman law. One of his arguments is that the text deals with possession of the units and not

with the ownership thereof. It is however natural for the text to refer to possessors rather than owners in dealing with a possessory interdict. The interdict was the speedier remedy available to the owner in this case. The interpolation to which Natelson refers does not affect the substance of my argument. See Riccobono, Diritto romano classico, p. 518; Marchi, A Propriedade Horizontal, pp. 57–63, 89–90.

34This is confirmed by Neratius D 39 2 47. See Marchi, A Propriedade Horizontal,

pp.63–71.

35Natelson, ‘Historiography’, pp. 53–4 contends that this final sentence shows that the upper owner was in fact a superficiarius. Such a statement is unlikely in the time of Labeo when the institution of superficies was still underdeveloped.

36Van der Merwe, ‘Apartment Ownership’ (1994), s. 108.

37Ulpian, D 8 5 8 5. See Natelson, ‘Historiography’, p. 50; Fernandez Martin-Granizo, ‘Propiedad Horizontal’, p. 118; Marchi, A Propriedade Horizontal, pp. 54–7.

on an adjoining parcel of land,38 the interpretation of higher floors in the same building is not entirely far-fetched. Another text deals with a construction on top of a neighbour’s wall. Labeo and Sabinus award the construction to the builder, which means that separate ownership is awarded to the builder of the top floor. But Pomponius prefers the view of Proculus, who awards the construction to the owner of the wall in accordance with the maxim superficies solo cedit.39 The third text tells us about a house that is divided into several units and considers against whom a missio in possessionem must be brought when parts of the house were in a ruinous condition and damage threatened (damnum infectum).40 The answer is that the action is against all the ruined parts. The important point is, however, that we have here a statement involving a house (building) that has been divided into several units (si in plures partes divisa sit domus). The final text prohibits a usufructuary of a house from dividing it into studio apartments (meritoria) or larger attics (cenacula) and allows him to lease the house out as a single unit only.41 It is quite possible that the usufructuary is here juxtaposed to an owner who was in practice allowed to effect such a subdivision.

From the above texts the conclusion may be drawn that the evidence for the existence of the phenomenon of apartment ownership or condominium in classical Roman law cannot be rejected out of hand. The first group of texts dealt with the vertical division of a building into different units; the second group could be construed as a condominium built in caterpillar-style up the slope of a mountain or hill, thus providing separate entrances to the different apartments; and the last group could possibly be interpreted as lending support to the phenomenon of ownership of floors or cubic entities in a multi-unit building.

38Natelson, ‘Historiography’, p. 51.

39Pomponian, D 41 1 28. See Natelson, ‘Historiography’, p. 52; Fernandez MartinGranizo, ‘Propiedad Horizontal’, p. 121 n. 20; Marchi, A Propriedade Horizontal, pp. 71–3. Riccobono, Diritto romano classico, p. 517 with reference to D 43 17 3 7–8 suggests that Labeo and Sabinus awarded the structure on the wall to the builder by reason of a connection to the builder’s land at another point and that the wall was subject to a servitude for support (oneris ferendi).

40Ulpian, D 39 2 15 13. See Natelson, ‘Historiography’, pp. 55–6; Meincke, ‘Superficies solo cedit’, p. 161 n. 113. Riccobono, Diritto romano classico, p. 516 correlates a suggested interpolation in the text with another interpolated text (D 39 2 38 1) the classical portion of which compares splitting a building to splitting a parcel of land, pointing to vertical, as opposed to horizontal or cubic, division.

41Ulpian, D 7 1 13 8. See Natelson, ‘Historiography’, p. 56.

3.2.3. Post-classical sources

There is evidence that separate ownership of floors in a building was recognised in the Roman provinces of Syria and Palestine. The Liber Syro-Romano deals with the liability for repairs in a horizontally subdivided building. It provides, for instance, that the owners of the upper floors must contribute half of the cost of the repair of the ground floor if there is only one upper floor, but a third or a fourth if there are two or three upper storeys.42,43

Similar provisions are found in the Hexabiblos of Harmenopoulos, which contains the work of Julian of Askalon, the architect who collected the edicts of the prefects of Caesarea.44 Harmenopolus mentions two cities in which horizontal subdivision of property was practised, namely, Caesaria and Askalon.45,46 Some authors are of the opinion that the excerpts are only evidence of customs practiced in these towns.47 However, the significance of the texts is that both the Liber Syro-Romano and the Juliano Escalonita use the word dominus, or the Greek equivalent of dominus, to designate the occupiers of the various floors.48

4. Medieval law

The recognition of ownership in separate storeys or rooms in a building was more widespread in Europe during the late Middle Ages. Under names such as Stockwerkseigentum, Geschosseigentum, Gelasseigen-

´

tum, Herbergsrecht, Kellerrecht and Etageeigentum, the concept was extensively recognised in Germany, France, Italy, the Southern Netherlands and Switzerland. The reasons for introducing multi-ownership of buildings were legal-philosophical as well as socio-economic. The maxim

42Liber Syro-Romano 98. Berger, Encyclopedic Dictionary of Roman Law (1953), p. 563 regards this is as an anonymous legal compilation of unknown date (probably fifth century) preserved in oriental versions in Syrian, Arabic and Armenian.

43Bernard, Le Proprie´taire, p. 20; Sachau, Syrische Rechtsbu¨cher (1907), pp. 107, 124; Marchi, A Propriedade Horizontal pp. 73–9. For the full text, see Fernandez Martı´n-Granizo, ‘Propiedad Horizontal’, pp. 114–15.

44Harmenopoulos Constantine is the author of a compilation of Roman law of around 1345 AD. The collection contains excerpts from earlier Byzantine compilations, and thus the work of Julian of Escolina.

45Hexabiblos 2 4 40, 42. For the text, see Marchi, A Propriedade Horizontal, pp. 74–5.

46Pappulias, ‘Zur Geschichte’, pp. 363–4; Ferrini, ‘Gli estratti di Guiliano Ascalonita’ (1929), p. 447; Batlle Va´squez, La propiedad, p. 16.

47See, for example, Pappulias, ‘Zur Geschichte’, pp. 363–4.

48Batlle Va´squez, La propiedad, p. 18.

superficies solo cedit was not adhered to as strictly as in Roman law and in Germanic cities improvements on land belonged to the improver.49 Moreover, since early Germanic tribes used tents and primitive wooden cabins as dwellings, the idea that different persons could be owner of the land and the building became more acceptable.50 Socio-economically, the scarcity of building space in medieval cities, which were surrounded by massive walls for the purpose of defence,51 boosted the erection of high-rise multi-unit buildings to cater for residential and commercial needs. Floors and rooms in buildings were sold to individual owners for residential purposes, or as business premises such as shops, taverns, stables and butcheries.

In Germany, primitive forms of condominium seem to have first existed in the mountainous areas, where unique building designs catered for the possibility of different floors of a building having separate entrances. Documents in the Archives of Cologne dated from 1135 to 1142 record the transfer of the land and upper floors of a house to members of the family, with retention of the cellar for the transferor.52 Because of an acute shortage of accommodation, this was later extended to other cities, where the subdivisions took the forms of Herbergsrecht in which individual floors served as residential accommodation, Kellerrecht in which separate parts of the building served as storage places, shops, butcheries and abbatoirs, and Gelasseigentum in which individual rooms in a building were sold as barns, stables, studios or repair shops.53 Later countermeasures to avoid unnecessary splitting up of buildings include a prohibition on the grant of parts of a building to children by means of a will, a right of pre-emption in favour of the other owners in the building and, in some regions, a general prohibition on subdivision of the building into separate ownership units.54

Earlier ancestors of modern condominium were also known in the sixteenth century in the mountainous French regions of Grenoble,

49The rule was: ‘curia mea de meis laboribus comparata’. See Goepfert, Stockwerkseigentum, p. 13.

50Goepfert, Stockwerkseigentum (1952), p. 12; Natelson, ‘Historiography’, p. 29;

51Aeby et al., La proprie´te´ no. 9; Ferrer and Stecher, Condominiums, par. 32; Goepfert,

Stockwerkseigentum, p. 15.

52Mo¨ ller, Die Problematik des Raumund Stockwerkseigentum (1937), pp. 7–9; Ferrer and Stecher Condominiums, par. 33; Von Gierke, Deutches Privatrecht (1905),Vol. 2 p. 41.

53Goepfert, Stockwerkseigentum, p. 17.

54Mo¨ ller, Stockwerkseigentum, pp. 15–16; Goepfert, Stockwerkseigentum, pp. 17–19.

Rennes, Lyons and Orle´ans.55 Coutumes of Orle´ans and Auxerre dealing with condominiums date back to 1509 and 1561 respectively and 1672 legislation defined the rights of apartment owners in Paris. The reconstruction of Rennes after the catastrophic fire in 1720 into a city with wider streets and higher multi-family residential buildings proved so successful that many French coutumes accepted the concept of condominium.56 It is recorded that in 1888 there were 4,190 condominiums in Grenoble and that one of the buildings contained eighty individual units.57

The concept of condominium was also recognised in some Italian towns and regions from the Middle Ages, notably in Milan,58 Genoa and Sardinia,59 and also in several Swiss cantons and towns such as Fribourg, Aargau, Neuchaˆtel, Valais and Zug.60 In Valais the institution is still extensively utilised for providing resort condominiums or holiday apartments. Traces of condominium can also be found in the medieval statute of Brussels dating back to 1657, the coutumes of Antwerp and Ieper and the ordinances of Ghent and Louvain.61

The forms of condominium that existed in the Middle Ages in Europe were primitive, undeveloped and permeated by individualism, with no clear demarcation of individual and common property and a lack of a central management body. There was no mechanism for the settling of disputes and an owner who made life unbearable could not be sanctioned. The endless disputes among the owners resulted in condominiums being described as Streitha¨user or houses of dispute. It is also recorded that condominiums were distinguishable from a distance, because owners were entitled to decorate, paint and maintain not only the inside, but also the outside of their apartments according to their own taste.62

55Ferrer and Stecher, par. 32; Julliot Traite´-Formulaire, no. 10ss; Bernard, Le Proprie´taire, no. 9ss; Racciatti, Propiedad por Pisos, p. 10.

56Fietz, Die Entwicklung des Stockwerkseigentums unter besonderer Beru¨cksichtigung der Verha¨ltnisse in Deutshland und Frankreich (1955), p. 47.

57Ferrer and Stecher, Condominiums, par. 32 n. 22.

58Batlle Va´squez, La propiedad, p.19.

59Aeby et al, La proprie´te´, no. 9; Ferrer and Stecher, Condominiums, par 41 n. 7.

60Ferrer and Stecher, Condominiums, par. 34; Flattet, La propriete´, p. 619.

61Aeby et al., La proprie´te´, no. 10; Ferrer and Stecher, Condominiums, par. 36.

62Goepfert, Stockwerkseigentum, p. 20 records a case where the owner of a room in a neighbouring house was granted an order for restoration because the neighbour repainted his entire house including the room owned by the neighbour.

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

5. Flat ownership in England and Scotland

An English case of 1508 notes the existence of one house on top of another and Coke testifies in On Littleton that such ‘superimposed freeholds’ were located in South Square Lincoln’s Inn since the late seventeenth century.63, 64 In Scotland separate ownership of apartments in a tenement building flourished for over three centuries as was recognised by the institutional writer Stair in 1681.65 Stair’s account, presumably based on the custom of the burghs, was possibly influenced by the law in other European countries, especially the Germanic institution of Stockwerkseigentum. Yet in view of the continuity of the law into the modern era, Scots law can probably claim the honour of the oldest surviving condominium law in Europe, or even in the world.

These tenements suffer from the same defects as their European counterparts, the Stockwerkseigentum, as evidenced by Clinker, writing about life in eighteenth century Edinburgh:66

Every house [apartment] is a complete house, occupied by a separate family; and the stair being common to them all is generally left in a filthy condition: a man must tread with great circumspection to get safe housed with unpolluted shoes.

The traditional law of the tenement was based on necessity and practicability rather than any thorough appreciation of the particular nature of a condominium structure. If a lower flat does not maintain its walls, the building is going to collapse. So the early law came up with the concept of a ‘common interest’ duty of support, obliging the owner of the lower flat to maintain the support. If the top flat does not maintain its roof, weather will invade the tenement. So the early law devised a corresponding ‘common interest’ duty of shelter.67 In terms of ownership of various parts, the early common law often chose to allocate them to the nearest flats possible. So the ground belonged to the bottom flats, the roof to the top flats, and the exterior walls to

63Keilwey 98 No 4 Fineux and Brudnell (1508) 72 ER 262; Tenant v Goldwin (1704) 6 Mod 311, 87 ER 1051; Doe v Butt (1787) 1 TR 702, 99 ER 1330; Humphries v Brogden (1850) 12 QB 739, 116 ER 1048.

64Coke, A Commentary on Littleton (1832) p. 486. See also Jessel MR [Master of the Rolls] in

Yorkshire Fire & Life Insurance Co v Clayton 8 QBD 421, ER 424 (1881); Buckland and McNair, Roman law and common law, pp. 101–2; Davis, ‘Condominium and the Strata Titles Act’ (1966), p. 473; Ferrer and Stecher, Condominiums, par. 54.

67 On common interest: Reid, The Law of Property in Scotland (1966), pars. [232]–[239].

each flat they enclose.68 Such a simplistic approach probably would not have survived the rapidly changing demand of society in the nineteenth and twentieth century.

6. Stockwerkseigentum and the Civil Codes

The unsatisfactory operation of Stockwerkseigentum in practice, coupled with the acceptance of the maxim superficies solo cedit, jeopardised the institution of apartment ownership.69 In addition it was feared that condominium ownership would endanger the efficacy of the system of land recordation, discourage security transactions – as the object of security was not land – and complicate the inner workings of the property registry by splitting the main inscription into several inscriptions of smaller estates.70 Thus the Civil Codes of the Netherlands (1838), Germany (1899) and Switzerland (1908) implicitly prohibit the

creation of condominiums by accepting the maxim superficies solo cedit.71

The French Civil Code of 1804, persuaded by a positive commentary on the draft Civil Code by judges of appeal of Grenoble and Lyon where condominiums were very popular,72 did make provision for condominium, though only in article 664. The article provides that the roof and the main walls of the condominium building must be maintained by all the owners in proportion to the value of their apartments and that the proprietor of each storey is responsible for the floor of his storey and the stairs that lead up to his storey.73 Most of the Civil Codes based on the Code Napoleon incorporated article 664 or a similar article, notably for our purpose, those of Poland, Italy, Spain and Portugal.74

68Scot Law Com No. 162 no. [2.6]–[2.10]

69Huber, System und Geschichte des schweizerischen Privatrechts (1886–94), Vol 3 p. 241; Leyser, ‘Ownership in flats’, p. 33.

70Butera, Comproprieta`, p. 15; Batlle Va´squez, La propiedad, p. 21; Ferrer and Stecher,

Condominiums, par. 34.

71See German CC §§ 93 and 94.

72Ferrer and Stecher, Condominiums, par. 36 credits Pothier’s excellent commentaries on the Orle´ans coutume for the inclusion of this article in the French Civil Code.

73Code Napole´on art. 664.

74Poland (1808) art. 664; Italy (1865) arts 562–4; Spain (1889) art. 396; Portugal (1867) art. 2335. See further the Civil Codes of Belgium (art. 664); Peru (arts 855–7); Ecuador (art. 846); Honduras (art. 412); Mexico (art. 951); Quebec (art. 521); Panama (arts 697–8); Venezuela (art. 404); Japan (art. 208); China (1919/1931) arts 799–800); and the Philippines (art. 490).

7. Modern statutes on condominium

After World War I, and especially after World War II, the acute shortage of accommodation and the thousands of displaced persons milling around Europe compelled the authorities to put apartment ownership on a firm statutory basis in order to create social, psychological, economic and political stability. The aim of the early statutes was to provide a clearer demarcation of individual and common parts of a scheme, to provide a set of by-laws or rules for the apartment ownership community and to provide a clear management structure consisting of the owners in a general meeting and, in some cases, a professional manager.

So-called first generation statutes were introduced in almost all the Western European countries, starting with Belgium (1924), Greece (1929) and Italy (1935). Latin American countries started with Brazil (1928) and Chile (1937), while Eastern European countries started with Hungary (1924), Romania (1927) and Poland (1935). AngloAmerican countries were the last to follow suit. The process started with the rudimentary Transfer of Land (Stratum Estates) Act of 1960 of the Australian state of Victoria, followed by New South Wales (1961), the Canadian state of British Columbia (1966) and Singapore (1968). Condominium statutes of the United States started with the 1961 amendment of the National Housing Act, empowering the Federal Housing Administration to insure mortgages on condominiums authorised by state law and providing a Model Statute on which most of the first generation condominium statutes were based.75 Most of these skeletal ‘first generation’ statutes have been supplemented or replaced by more detailed ‘second generation’ or even ‘third generation’ statutes.76

The condominium concept has in modern times been extended to include dockominiums in the form of mooring spaces for yachts around a jetty, so-called bare site condominiums consisting of land vertically subdivided for caravan sites and timeshare condominiums where the fourth dimension of time is added to the cubic division of

75Van der Merwe, Apartment Ownership, ss. 6–22.

76‘Third generation’ statutes split the registration and management aspects of the old statutes into two statutes and provides a two-tiered governance structure for mixed and larger condominiums: Van der Merwe and Paddock, ‘Two-tier governance’, p. 573.

the building into ownership units.77,78 The possibility of selling air space, recognised in certain US states, has given rise to the phenomenon of ‘lollipop condominiums’.79 In this case a developer would buy the airspace above a railway or bus station, arrange for a long lease with regard to a piece of land in the centre of the station and erect a strong foundation housing a lift from which the units constructed in the airspace above the station could be reached. In such a way, much sought after commercial and office units are made available in the centre of cities. In a most recent development, the new condominium statute of the Spanish province of Catalonia makes provision for graveyard sites to be sold as condominium units.80

8. Conclusion

The above exposition shows that doctrinal principles cannot forever put a lid on the practical necessities of everyday life. Whenever and wherever there is an acute shortage of residential accommodation, doctrinal theories are either brushed aside or ignored to solve the problem. Thus the maxim superficies solo cedit was not heeded when the people of North Africa had to create additional accommodation for their compatriots around their oases, when the Lebanese businessmen wanted to provide more commercial units in the crowded zouks of Beirut and when the inhabitants of the medieval European walled cities erected high-rise buildings on the limited space available and divided them into multi-floor ownership units. When the compilers of the French Civil Code had to decide whether the maxim should be given full force, they were persuaded by an Orle´ans coutume that an exception should be written into the Code that would prolong the practice of building caterpillar-like multi-unit buildings on slopes in the mountainous areas of the country, whereby a separate entrance was provided for each unit owner. And, finally, when Greek

77Van der Merwe and Rossouw, ‘Dockominiums or sectionalised mooring spaces in terms of the Sectional Titles Act’ (1994), pp. 72–83.

78Van der Merwe, Apartment Ownership, s. 38.

79See Note, ‘Cubes of air: Planning a condominium development under the Minnesota Act’ (1974), p. 89; DiGiovanni, ‘Condominiums in downtown public parking lot rights: a creative city planning tool’ (1983), p. 607.

80Law 5 of 2006. The idea behind this is that private owners would be able to maintain the graveyard and the graves in a better condition.

civil war refugees and the European population displaced by two World Wars started milling around Europe in search of affordable homes, the legislators decided that it was high time that the law should catch up with practical demands. They thereupon promulgated special statutes on condominium to breach the principle of superficies solo cedit and to regulate the complex institution of condominium in more detail.81

81The South African Sectional Titles Act 95 of 1986 s. 2 caters for registration of ownership (title) or other real rights over units in a subdivided building, ‘[n]otwithstanding anything to the contrary in any law or the common law’.