Last month, the court in The Hague heard a case involving a request for a replacement authorisation for the placement of, among other things, a mobility scooter in a communal area of an apartment complex. The owners' association felt that there were better alternatives for the placement of the mobility aid. Was the replacement authorisation granted?

The facts

Since 2008, the applicant had been the owner of an apartment with its own parking space in the covered and enclosed car park.

The deed of division stated, among other things, that the bicycle storage area and the space for the rubbish containers belonged to the communal areas of the owners' association. It also stipulated that every owner had the right to use the communal areas and that it was not permitted to place vehicles on or in the communal areas that were not intended for that purpose, except with the permission of the owners' association.

Due to a progressive illness, the applicant had become dependent on aids such as a mobility scooter, a walker, a tricycle and an electric wheelchair over the years. In 2011, he had obtained permission from the HOA to park his mobility scooter in the communal container room because he was using his parking space for his car. In 2012, the HOA expanded the internal regulations to include rules on the storage of aids. The basic principle was that aids should be stored in the owner's own parking space. The owners' association could make communal areas available within the building and residents could make agreements among themselves about the allocation of the available spaces per building. If no agreement could be reached, allocation would be based on a number of criteria (Wmo indication and one aid per resident). Permission could be revoked by the owners' association if it caused nuisance, if the communal area was needed for communal facilities, or if the mobility aid was hardly ever used.

In 2023, the owners' association requested that the two aids (mobility scooter and tricycle) be placed in the private parking space in the garage because the requesting party no longer owned a car. In 2025, the requesting party then submitted a written request for permission to store both aids in the container room, or the mobility scooter in the container room and the tricycle in the bicycle storage room. This was because the occupational therapist had advised, among other things, that the mobility scooter and the tricycle should be easily accessible with the rollator, preferably as close as possible to the home. In addition, it had to be possible to place the rollator next to the mobility scooter or the tricycle to enable a safe transfer, with space to turn the rollator. The location had to have as flat a surface as possible, the access doors had to be easy or automatic to open, and there had to be a charging point.

The request was rejected by the owners' association.

The requesting party disagreed and took the matter to the magistrate's court.

Positions of the parties

The requesting party asked the magistrate's court to grant a replacement authorisation (Section 5:121 of the Dutch Civil Code) for the placement of the mobility scooter and the tricycle in the container room, (alternatively, the bicycle in the bicycle storage room), whereby the cupboards in that room would have to be moved so that there would be sufficient space to transfer from the rollator to the aids. Refusal of either of the two requested options, which had been deemed suitable by the occupational therapist, would have been without reasonable grounds. Furthermore, the freedom of the owners' association to make a decision would be limited by the provisions of the Equal Treatment on the Basis of Disability or Chronic Illness Act (WGBH), which stipulates that permission may not be refused if, objectively speaking, there are no suitable alternative storage options.

According to the owners' association, the container room and bicycle storage room were not suitable for storing (multiple) aids because they were too cramped to manoeuvre, and there were more suitable alternatives for storing those aids, in particular the owner's own parking space in the garage. In addition, granting exclusive use of a common area would be contrary to the deed of division.

Judgment of the district court

The district court rejected the requested authorisation.

It was stated that the freedom of the owners' association to decide on the placement of an aid in the communal area is limited by Article 6b(d) of the WGBH: permission may not be refused if there are no alternative storage options. These alternatives must be reasonably suitable from an objective point of view. In principle, it is irrelevant whether the requesting party considers them suitable or considers its own alternative to be more desirable. In addition, the subdistrict court considered it important that the owners' association had taken as its starting point in its internal regulations that aids should primarily be stored in the owner's own parking space. Only if this is not possible should other locations be considered. In that light, the alternative storage location of the owners' association had to be considered.

Furthermore, the acceptability of possible alternatives had to be assessed from the perspective of the disabled or chronically ill person concerned. It had to be assessed whether the alternatives were physically feasible for the applicant, given the nature of the disability or illness and the resulting limitations, both current and future, as might be expected in the case of a progressive condition.

Such an assessment can only be made with sufficient knowledge of and experience with the relevant clinical picture and the associated limitations.

The magistrate therefore attached great importance to the principles and findings of the occupational therapist that had been submitted.

Although the occupational therapist had considered several options, it was striking that a private parking space had not been included as an option. From the report, the magistrate concluded that none of the options examined by the occupational therapist were really suitable. The container room was mentioned as the most suitable location, but had the disadvantage of a sloping ramp and a door that was difficult to open. Looking at the principles formulated by the occupational therapist, the magistrate concluded that a private parking space was the most suitable option. If the distance from the entrance door to the parking space was too great, a fellow resident had agreed to swap his parking space with that of the applicant. This parking space was diagonally opposite the entrance to the car park from the hall with the lift. This meant that the shortest possible distance from the home was achieved. The parking space also offered sufficient space to make the desired transfer to and from the walker. The floor of the garage was flat and completely level. The entrance door to the garage was automated and the installation of a charging point was not an obstacle, as this would also have to be done in the container room.

The applicant also argued that he was afraid of vandalism and/or theft of the aids left in his parking space, but the magistrate did not consider this to be decisive because the garage was closed off from the public area and there had only been one incident in all those years. Moreover, there are ways to prevent or hinder theft.

Conclusion

The magistrate therefore ruled that the applicant had not sufficiently demonstrated that his own parking space was not a reasonable alternative and that it had not been shown that the owners' association had refused the request without reasonable grounds.

In view of the above, the freedom of a VvE to refuse permission is very limited. It is important, if possible, to provide good reasons why, from an objective point of view, there is a suitable alternative parking option.

Would you like to know more or do you have questions about your position as an apartment owner or other VvE issues? Please feel free to contact one of our solicitors without obligation. We are happy to be of service!