Экзамен зачет учебный год 2023 / European Condominium Law

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ownership in a single provision, art. 664. Due to the shortage of land and accommodation after World War I, in addition to factors such as urbanisation and demographic trends, condominium legislation was adopted in 1924. Art. 664 was abolished (art. 664 C.C.) and a new chapter was inserted in Book II of the Civil Code. This laid down the principle that it was legally possible to create different separately owned units in the same building (art. 577bis C.C.).

Two types of co-ownership were introduced, namely, incidental and mandatory co-ownership. The latter would be used from then on to structure apartment ownership. The new rules soon proved insufficient to suit the needs of the modern apartment buildings built in the aftermath of the World War II. Notarial practice and case law helped to fill the loopholes, but it was not until 1994 that new mandatory legislative provisions on apartment ownership were enacted in arts. 577-3 to 577-14 of the Civil Code. One important change attributed legal personality to the association of co-owners, allowing it to initiate legal proceedings and enter into contracts in its own name. Moreover, the by-laws (‘statutes/statuts’), house rules (‘reglement van interne orde/re`glement d’ordre inte´rieur’) and decisions of the general assembly (‘algemene vergadering/Assemble´e ge´ne´rale’) can be enforced against the owner-residents and other occupiers of the building or group of buildings.

More recently, on 2 June 2010, a new Law was adopted with the purpose of modernising and increasing the transparency of the operation of condominium schemes and their organs. Modifications were made to the structure of the association of co-owners (‘vereniging van mede-eigenaars/association des coproprie´taires’), the functioning of the management organs, procedural rules and the obligation to provide information with the conveyance of a unit.3 See further in Part III.

In Greece a desperate housing shortage was caused not so much by World War I, but by the devastating defeat suffered by Greece in the Greco-Turkish War in 1922 at Smyrna. Thousands of Greek soldiers returning to Greece were joined by hundreds of thousands of refugees.4 Although there are earlier references to condominium regimes in the

3Timmermans, Handboek Appartementsrecht (2008), pp. 70–4; Sagaert et al., Vermogensrecht in Kort Bestek (2007), p. 79.

4Morgenthau, I was sent to Athens (1929), recounts that this suddenly increased the native population with 25 per cent requiring instant relief and eventual permanent rehabilitation.

Samiakos and Ionios Codes,5 the institution of condominium was, for the first time, formally introduced in Greece by Law 3741 of 1929 on Ownership of Storeys in a Building, which abolished the relevant provisions of the previous Codes. Other provisions regulating condominiums are found in arts. 1002 and 1117 of the Greek Civil Code of 1946; Law 1024 of 1971 on ‘Divided Ownership of Buildings Erected on the same property’, which was amended extensively by Law 1562 of 1985 on The Modification of Articles of the Code of Civil Procedure (CCPr) Regarding Partition and other Provisions and especially Law 2052 of 1992 on The Construction of Co-owned Immovable Property. Eighty years after its introduction the institution is still very popular in practice, and the original Law on Ownership of Storeys continued in force without major amendments.

In Italy the brief regulation of condominio negli edifici in the Civil Code of 1865 proved too simplistic to regulate the management of an increasing number of condominiums, especially in the former Austrian provinces where condominiums were not regulated at all.6 The old provisions were replaced by a more comprehensive treatment in the Royal Decree 54 of 15 January 1934, which was converted into Law 8 of 10 January 1935, and then, for the most part, incorporated in articles 1117 to 1139 of the current Civil Code, supplemented by articles 61 to 72 of the implementing provisions of the third book of the Italian Civil Code of 1942. The Constitution does not explicitly deal with condominiums, but it requires the recognition of private property in condominium units and leaves it to the general law to supply rules as to the acquisition, enjoyment and accessibility of property to all (art. 42).

Over the years various reform projects have been undertaken with a view to modernising the institution so as to keep pace with new lifestyles and to solve issues recognised in case law in the course of time. Foremost is the discourse among leading authors as to how the management body of a condominium should be structured as a separate legal entity, not to mention issues relating to the regulation of

5See further, Spyridakis, Law of Condominium (1996), p. 11; Zepos, Horizontal ownership (1931), p. 43; Konstadopoulos, Law of Condominium in Greece (1974), 9, 17 ff.; Tsetsekos,

Individual Ownership (horizontal and vertical) (2002), pp. 41 ff.; Kanellos, Law of Condominium

(1985), pp. 38 ff.; Areios Pagos 101/1996 (EDP 1996, 19).

6See Marina and Giacobbe, ‘Condominio negli edifici’ (1961).

‘super condominiums’, given that the concept was invented to deal primarily with single building condominiums.

The last of these projects, the Bill no. AC 4041, was approved by the Italian Senate in January 2011.7 This Bill was eventually promulgated as Law 220 on 11 December 2012. The Law, which came into force on 18 June 2013, represents the culmination of a long process of reform. Anyone examining Italian law in point will therefore be confronted with a framework for solving problems arising from practice. This, in turn, is ordinarily the result of an evolving case law, especially of the Supreme Court, which has been addressing various problems going back to 1942. See further in Part III.

In France the concise art. 664 in the course of time proved insufficient to regulate the complex relationships existing in a condominium efficiently. The increasing numbers of multi-owned buildings in the nineteenth and the beginning of the twentieth century, called for a more detailed regulation of condominiums. The first condominium statute, namely, the Law on Joint Ownership of Buildings divided into Apartments, was promulgated on 28 June 1938. This Law was not mandatory; owners had the freedom to modify the provisions of the Law in their bylaws (re`glement de coproprie´te´) or to decide that the Law was not applicable to their particular condominium. The main innovation of the 1938 Law was to make all owners members of a management association (syndicat) with legal personality to manage the common parts of the buildings, in accordance with clearly specified majority resolutions of the general meeting. The syndicat could delegate its duties to a manager (syndic).

This first special condominium statute was soon criticised on the grounds that its management provisions were too simple; the respective powers of the manager (syndic) and the association (syndicat) were not clearly defined; and that the by-laws (re`glement de coproprie´te´), being regarded as a contract between the owners, could only be modified by unanimous consent. Furthermore, unanimity was also required for improvements such as for the installation of a lift or a central heating system. This paralysed the condominium community and limited the numerical growth of condominiums.

This statute was replaced in 1965 by a second-generation statute, namely, Law no. 65-557 establishing the Law on Apartment Ownership of Buildings of 10 July 1965, implemented by Decree no. 67-223 of

7See Palmieri, La riforma del condominio approvata dal Senato: http://dirittoditutti.giuffre.it/ psixsite/Rubriche/Casa%20e%20Condominio/default.aspx?id=5633.

17 March 1967. Both enactments as amended and interpreted by extensive case law regulate French condominiums uniformly and thus avoid special regimes for particular condominiums. The Law of 1965 contains precise definitions of certain technical terms such as ‘private parts’, ‘common parts’, ‘accessories to common parts’ and ‘unit’ (lot de coproprie´te´) and specifies the function of each management organ. Most importantly, it substitutes the unanimity principle with a new majority principle for most matters, for example, for improvements of the common property. However, in order to safeguard certain important rights of owners, the unanimity principle is retained for certain resolutions such as a resolution to change the intended purpose (destination), or to restrict the use of individual units, and a resolution to sell common parts necessary for the preservation of the original characteristics of the scheme.

The Law of 1965 and the Decree of 1967 have been amended, inter alia, by Laws of 1966 and 1979,8, 9 which adapted the land register for the registration of real rights in individual units, and the Law of 1985,10 which introduced further instances of majority decision, sanctioned the use of proxies in general meetings and made various technical adjustments to certain provisions. A Law of 1994 introduced a new charge (privile`ge du syndicat des coproprie´taires) to secure the claims of the association (syndicat) against owners who default on their contributions and provided for the temporary administration of a condominium that experiences serious financial difficulties.11 A Law of 1996 reduced the majority required for works of preservation; provided for the termination of the condominium under exceptional circumstances; established an owner’s right to information; and called for transparency in the condominium management.12 An important Law of 2000 strengthens the rights of purchasers of condominium units by entitling them to request a technical report on the building before buying into a condominium building that is older than 15 years.13 The Law of 2003 authorises termination of the condominium if the management utterly fails to manage the condominium or the owners are in physical danger from the building collapsing.14 Minor

14Law 2003-710 of 1 August 2003, which sets forth the national urban renewal programme (PNRU).

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amendments since 2003 concern the adaptation of some technical rules to modern needs. Finally, ecological risks have started to play a prominent role in French property law in general and in condominium law in particular and future legislation on this issue is to be expected.

In Spain the simplistic regulation of condominiums in art. 396 of the Spanish Civil Code proved inadequate to regulate the increasing quest for home ownership, especially after the end of the Spanish Civil War in 1939. The more detailed first-generation statute, Law of 26 October 1939, clearly recognised private ownership of an individual apartment, together with co-ownership of the common property. Since then, residential condominiums have increased to such an extent that it has become the primary form of owning a home in Spain. The Law of 1939 was replaced by the Law on Horizontal Property of 21 July 1960, which also modified article 396 of the Spanish Civil Code. This second-generation Law regulates the structure and establishment as well as the management of condominiums in great detail. Important amendments include Law of 23 February 1988 regulating the contributions of the owners to common expenses; the Law of 6 April 1999 accommodating changes in construction techniques, town planning and social needs. It relaxed the special majority vote required for installing services such as lifts and telecommunications, the removal of architectural barriers to facilitate access to buildings, and installing clean energy systems. It further improved the collection of contributions owed to the management body and modernised the governance of a condominium with regard to the functions of the general meeting and the manner of taking minutes. In June 2013 the Law on Horizontal Property was amended fairly extensively by the Law on restoration, regeneration and urban renovations.15

The development of Austrian apartment ownership law following World War II pursued the goal of mitigating the housing shortage afflicting the nation in the aftermath of the war. The basic premise on which the law was built was that private capital and resources would facilitate the creation of residential accommodation in the form of large multi-storey buildings. A key issue was the financing of such residential buildings. As such, the new statute had to provide an affordable means of real security.16

15BOE no. 153 of 27 June 2013.

16Report of the Judiciary Committee on the WEG 1948, 676 BlgNR 5. GP 1 ff; Stabentheiner, ‘Das Rechtsinstitut des Wohnungseigentums im o¨ sterreichischen Recht’ (1997), p. 212.

separate ownership in multi-unit buildings in Germany between 1900 and 1951. The German Law on Apartment Ownership was introduced in 1951 with the primary aim of solving the severe housing shortage in West Germany after World War II, during which many buildings were destroyed and millions of refugees from the East flocked to West Germany. Its introduction was based on the belief that only the establishment of private ownership of units in a subdivided building could release private equity of future owners and their potential loan capital for the construction of buildings.19 Today, the political and social purpose of condominiums is often believed to be that it caters for home-ownership without a large outlay of purchase-money. Most recently the Federal Government has extended public grants for the acquisition of apartments as part of personal retirement schemes.

The German Law of 1951 was significantly amended only in 2007, mainly to facilitate the modernisation of condominiums by replacing the unanimity requirement for such alterations with a simple majority requirement. The 2007 amendments also replaced the special informal non-contentious procedure (Freiwillige Gerichtsbarkeit) for the settlement of disputes, with ordinary court proceedings under the German Code of Civil Procedure (Zivilprozessordnung20). Another important amendment, spurred by decisions of the Federal Court of Justice (BGH),21 was the recognition that the management body of a condominium (Gemeinschaft der Wohnungseigentu¨mer) has legal capacity, instead of being considered a mere association of owners without legal capacity.22 This had the practical consequence that the common property and all assets pertaining to the condominium (rights flowing from contracts and collected assessments) belong to the owners in person. There has been no substantial foreign influence on the German Law of 1951 during the last sixty years.

The acceptance of the maxim superficies solo cedit in the Dutch Civil Code made the establishment of condominiums a legal impossibility.23 However, after World War I so-called ‘flat buildings’, namely, multi-

19See Mu¨ nchKomm/Commichau, WEG, Introd. no. 3.

20In this informal procedure the judge had to take care of the interests of apartment owners ex officio.

21See BGHZ 163, 154.

22See Ha¨ ublein, ‘Die Rechtsfa¨higkeit der Wohnungseigentu¨ mergemeinschaft – Vorzu¨ ge eines Paradigmenwechsels’ (2005), 175, 181 ff.

23On the history: Mijnssen et al., Mr. C Asser’s Handleiding tot de beoefening van het Nederlands Burgerlijk Recht (2008), pp. 334–42; Mertens R F H, Appartementsrecht par. 2.1–2.4.

unit buildings subdivided into luxury apartments and sold to individuals, appeared. The lack of a legal vehicle to structure such multi-unit ownership buildings inspired alternative institutions such as the public limited liability company, the building foundation and the cooperative flat association.24 The devastation of large parts of Dutch cities during World War II displaced thousands of citizens and caused an acute shortage of affordable housing. The legislature recognised that the construction of multi-unit buildings on smaller areas of land could alleviate such need. Furthermore, the economies of scale enjoyed by large-scale developers would result in cheaper provision of housing units and common facilities than separate houses on separate plots of land.25

This led to the amendment of the Dutch Civil Code in 1951 to include provisions on the subdivision of one or more buildings into apartments and the acquisition of rights in these apartments. These amendments came into operation on 1 December 1952. The Commission appointed by the Dutch government in 1941 submitted a draft legislative proposal to the Dutch parliament on 15 April 1947 that catered for the creation of full apartment ownership rights in parts of a multi-unit building,26 combined with co-ownership shares of the common property. This was revised by the State Committee on Revision of the Civil Code, under the chairpersonship of Prof. E.M. Meijers, to cater not for full ownership in apartments, but for apartments held in co-ownership coupled with an exclusive right of use of individual units being carved out of such co-ownership.

As the 1951 legislation did not lead to a wholesale conversion of cooperative flat associations into condominiums as was intended, the Law on the Revision of the Provisions of the Civil Code, which came into operation on 1 December 1972, amended these provisions.27 The new Civil Code of 1 January 1992, which replaced the Civil Code of 1838, contains some technical amendments while leaving the substance intact.

A preliminary report to the Royal Dutch Society of Notaries entitled ‘Towards an innovative apartment ownership law’ identified several

24See Mertens, ‘Appartementsrecht en de welstandsbepalingen’ (1989), par. 1.2 and Linders, ‘Groot onderhoud bij bestaande appartementen’ (2003), pp. 135 ff.

25Memorandum of Explanation: Annexure II, 1946/47, 451, no. 3, p. 4.

26The members were Prof. J.H. Beekhuis, Mr A.F. Schepel, a member of the Dutch Reconstruction Department and Prof. P. Scholten.

27By Royal Decree of 25 September 1972.

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problems encountered in the practical application of the provisions, such as the need to make the amendment of the model rules more flexible and to establish an apartment ownership scheme on land held under a hereditary building right (superficies) or a hereditary land lease (erfpacht).28 The preliminary report led to the creation of the working group for the revision of the law relating to apartment ownership under the chairpersonship of Professor van Velten.29 Their recommendations resulted in Legislative Proposal 28614, which was adopted by the Dutch Parliament on 19 February 2005 as the Law on the Amendment of Title 5.9 of the Civil Code (apartment ownership).30, 31, 32 This came into force on 1 May 2005.

Innovative features of the Law of 2005 were: (a) the creation of socalled bare site condominiums by the subdivision of bare land without buildings into individual units to be utilised as parking spaces or camping sites; (b) the ability to amend the deed of subdivision by a qualified majority instead of unanimity; and (c) the creation of an apartment ownership scheme on land held under a hereditary building right (superficies). The Dutch legislator did not adopt the proposal of the working group to incorporate timesharing in the Civil Code provisions on the basis that there was no commercial need for such legislation.33

The Law of 26 February 2011 incorporated arts. CC 5:127a and 5:140a to address the practical problem that many (especially small) apartment schemes did not function properly and did not convene general meetings nor plan or execute any maintenance or repairs. These new articles enable Municipalities to request the Cantonal judge to

28Mertens et al., Naar een vernieuwd appartementsrecht: Preadvies Koninklijke Notarie¨le Beroepsorganisatie (1997).

29The group included members of the Committee Beekhuis of the Royal Dutch Society of Notaries, the Dutch Homeowners’ Society, the Dutch Association of Municipal Authorities and representatives of the Ministry of Public Housing and the Ministry of Justice.

30On this advice, see Van Velten, ‘Naar een vernieuwd appartementsrecht!’ (2001),

p.1009.

31Harleman and Bosman, ‘Appartementsrecht aangepast’ (2003), pp. 374 ff; Mertens ‘Veranderende regels in het appartementsrecht’ (2003), pp. 147 ff; Mertens, ‘Het appartementsrecht vernieuwd’ (2004), pp. 34 ff; Van Velten, ‘De indiening en voortgang van het wetsvoorstel tot herziening van het appartementsrecht’ (2004),

p.547.

32Official Gazette 2005, 89.

33However, the time-share proposals were included in the domestic laws of the (former) Netherlands Antilles: Mertens et al., Vernieuwd appartementsrecht, ch. 3; De Boer, ‘Timeshare in de Nederlandse Antillen’ (2005), p. 547.