Last month, the district court of Overijssel ruled in a case that dealt with the fact that a flat owner had replaced a skylight and placed four new skylights in the attic space of his flat without the required permission of the VvE. Afterwards, this owner still requested permission from the VvE but this was refused by the VvE. The owner then asked the subdistrict court for a substitute authorisation as referred to in Section 5:121 of the Civil Code. Did the subdistrict court grant this?
The facts
The owner in question had let/used his flat right to an employment agency for the accommodation of its employees (expats).
At the end of 2023, the owner-after consulting the property manager-replaced the existing skylight on the attic floor and installed four new skylights at his own expense. Briefly, the deed of subdivision showed that the roof was communal and that an owner was not allowed to make changes to the communal parts and the communal items without the permission of the meeting, even if they were in the private parts.
Subsequent permission from the VvE was still sought. It was decided by the VvE at the extra (extraordinary) members' meeting on 1 February 2024, after a vote, not to grant permission.
By letter dated 12 April 2024, the owner was summoned by the VvE to have the windows in question removed by Tuesday 14 May and the roof restored to its original condition by then.
The procedure
In the proceedings initiated by the owner, the subdistrict court was requested to grant a substitute authorisation in respect of the required permission it needed from the VvE to replace and realise the newly installed skylights at the site of the private part of his flat.
This request was based on the fact that he had consulted with the administrator and that the administrator, as the professional representative of the VvE, had agreed to the offer of a recognised/certified company for replacing the existing skylight and installing four new skylights. In doing so, the owner believed it had followed the correct procedure and had the permission of the VvE to replace and install the skylights. In addition, the owner argued that merely not seeking prior permission from the VvE was not a reasonable ground for refusal. In doing so, the owner pointed out that the skylights in question are virtually invisible from the street side and that similar skylights are already present in the building and other buildings in the immediate vicinity, which have the same manager. The owner believed that his interest in obtaining permission (as yet) outweighed the VvE's interest in refusing it.
The VvE opposed granting the request, arguing that the property manager had not given permission to install the skylights and was not authorised to do so. According to the VvE, the owner, as an experienced operator of real estate, including flats, had deliberately acted solo instead of involving the VvE from the beginning in his plans to change the roof. This conduct would be within the owner's sphere of risk. The VvE cannot be blamed in this regard. In addition, the VvE pointed out that the skylights had made the attic floor suitable for renting out to several people instead of to a single family, and that the other flat owners' living enjoyment was thereby affected.
Judgment of the Subdistrict Court
It was not in dispute between the parties that the cooperation or consent of the VvE was required for the replacement/placement of the skylights for which replacement authorisation was sought in the proceedings. This was because the windows had been installed in the roof, which was communal property.
It was established that the owner in question did not have permission from the VvE to install the skylights. Although he initially thought he was following the correct procedure by contacting the administrator, he acknowledged during the oral hearing that the administrator had not (unauthorisedly) given permission on behalf of the VvE to replace and add the skylights. By e-mail dated 12 September 2023, before the skylights were installed, the administrator had also explicitly reminded the owner of the required permission from the VvE for this.
The key question in this case was therefore whether the VvE had reasonably refused the owner's retrospectively requested permission to replace/install skylights in his flat.
The subdistrict court answered this question in the affirmative, considering the following:
“Article 5:121 paragraph 1 of the Civil Code provides, insofar as relevant here, a flat owner with an option to request substitute permission from the Subdistrict Court in all cases in which he requires cooperation or permission from (bodies of) the association of owners for:
- performing certain acts in relation to the common parts, or;
- the performance of acts relating to the use, management and maintenance of the private parts, and he has not received it from the association.
.
The subdistrict court considered that, in principle, it is up to the association to decide on common property. Article 5:121 DCC can be regarded as a special elaboration of the principle that the relationship between co-owners within the VvE is governed by reasonableness and fairness. This principle entails that if the consent of co-owners (whether in the form of the VvE or not) is required for the performance of certain acts, it cannot be refused without reasonable cause (HR 30 October 1998, ECLI:NL:HR:1998:ZC2759). In determining whether consent has been refused without reasonable cause, the circumstances of the case are important (cf. HR 10 February 2012, ECLI:NL:HR:2012:BU8171), so that the interests of the owner cannot be entirely ignored. Neither the wording of Article 5:121 of the Civil Code nor the legislative history of that article indicate a marginal review of the decision of the VvE. This means that the owner's interests help determine whether there is a refusal without reasonable grounds. However, this is not equivalent to a completely open balancing of interests in which the owner's individual wishes weigh as heavily in all respects as the interests and motives of the other owners (cf. Arnhem-Leeuwarden Court of Appeal 14 November 2014, ECLI:NL:GHARL:2014:8783).
Owner took the position that the subdistrict court, in its assessment of whether reasonable grounds existed, should only consider the arguments mentioned by VvE at the meeting of 1 February 2024. The minutes of that meeting show that the only reason given by the VvE for the rejection was that no formal permission was sought prior to the installation of the skylights. That in itself is insufficient ground to refuse permission, the owner argued.
The subdistrict court did not follow this position. What matters is whether VvE has a reasonable ground to refuse permission. That this ground must be recorded in the minutes does not follow from the law and would also not be reasonable considering that minutes are often a brief summary of what is discussed at a meeting and that minutes are adopted by non-professional parties. If the owner was not familiar with the grounds of VvE to refuse permission, he could have asked for clarification of these during or after the meeting. VvE board members present at the oral hearing represent the meeting and represent its interests.
The owner put forward as his interests that the existing and already dated skylight was leaking, causing water nuisance, and that, for the benefit of his (sub)tenant(s), he wanted more light in the attic floor with the four new skylights. According to the owner, the subdivision deed does not explicitly prohibit letting, letting is not contrary to the residential zoning and is therefore allowed. He pointed out that his flat had recently been renovated, involving a substantial sum of approximately €60,000, and that undoing the skylights was no longer possible because the original tiles were no longer present.
Against this, the VvE argued as its interests that the owner's rental activity affects the residents' living enjoyment as a result of (noise) nuisance, more intensive use of the communal areas (including at night), an increased sense of insecurity and the uncontrollability of who stays in the owner's flat. In addition, the VvE does not want the architectural appearance of the building to be altered, wants to avoid precedent-setting and the construction of the skylights has adverse effects on the possibility of installing solar panels in the future.
The subdistrict court considered that these are obvious and legitimate interests of VvE and for that reason it cannot be said that VvE's decision to refuse permission is unacceptable by standards of reasonableness and fairness, even when the owner's interests are included in the assessment. The possibility of installing solar panels in the future is in itself sufficient reason to refuse the requested permission. That this is significantly restricted by the skylights has not been disputed by owner.
In addition, the underlying dispute between the parties about the commercial (room) rental of the owner's flat and its permissibility is a reasonable ground for VvE to refuse the requested permission. Indeed, it can be argued that the use and purpose of the owner's flat right] has been changed by the newly installed skylights, as this has made it suitable for room rental to several people. The fact that the municipality agreed to this does not alter this. After all, the VvE has primacy in this matter.
The Subdistrict Court further considered that the VvE had argued, without being disputed, that the large skylight referred to by the owner had been installed in 2012 when the VvE was inactive and had not given its consent. The fact that various skylights have been installed on other buildings, with or without the consent of the VvE and/or manager concerned, does not mean that the VvE would have to conform to them. It can and may make its own assessment in this regard.
That the skylights cannot be undone is beyond the scope of the Subdistrict Court. Of course, this should be done in consultation with VvE and its administrator.”
Conclusion
In view of the above, the application for substitute authorisation was rejected by the subdistrict court. Insofar as this request related to replacing the existing skylight, the subdistrict court noted that it could imagine the VvE granting permission for this (as yet). After all, this concerned regular maintenance carried out by a certified company, taking into account the special roof construction.
Would you like to know more or do you have questions about your position as flat owner? If so, please feel free to contact one of our lawyers without obligation. We will be happy to assist you!