The Court of Appeal in The Hague recently heard a case in which the owner of an apartment in a block of flats was not given permission to construct an additional storey on his home. The subdistrict court had issued a replacement authorisation. The Court of Appeal then had to decide whether this authorisation should be annulled, but first answered the question of whether an appeal had been lodged in time.
The facts
In 2003, a building was divided into two apartment rights: the apartment right to the ground floor, basement and first floor (the apartment of owner 1) and the apartment right to the home on the second and third floors and basement (the apartment of owner 2). This apartment was not occupied by owner 2 himself, but rooms were rented out to students.
The deed of division stipulated that the parties entitled to the apartment rights are each entitled to half of the community property and that they are each entitled to cast one vote at the owners‘meeting (so the total number of votes was two).
The deed of division stated:
“All decisions shall be taken by unanimous vote."
And in the Model Regulations for Division into Apartment Rights of January 1992, which was declared applicable, it stated:
“Article 9.
- The common areas and common property shall include, insofar as present:
a. The foundations, load-bearing walls and columns, the framework of the building with the subsoil, the rough masonry, as well as the floors with the exception of the finishing layers in the private areas, the exterior walls, including the window frames with glass, the doors located in the outer façade or forming the separation between the common and the private area, the balcony constructions, the parapets, the galleries, the terraces and the corridors, the roofs, the chimneys and the ventilation ducts, the stairwells and (...)
An owner or user is not permitted to make changes to the communal areas and communal property without the permission of the meeting, even if these are located in the private areas. (…)
(…)
.Article 13.
- Any construction, addition or extension without the permission of the meeting is prohibited."
.
Owner 2 wanted to enlarge his home by building an extension and roof terrace (an extra floor) on the roof of the building. This would enable him to live there with his family. He had applied to the municipality for an environmental permit for his building plan. This permit had been granted in March 2022 and had since become irrevocable.
During the general meeting of the owners‘ association on 27 June 2022, the owners voted on owner 2’s building plan. Owner 2 voted in favour, owner 1 voted against. Thus, the owners' association did not give permission for the realisation of the building plan.
The proceedings at first instance
Owner 2 then asked the subdistrict court to annul (and suspend) the decision of the homeowners' association not to grant permission for his building plan on the grounds of conflict with reasonableness and fairness, pursuant to Articles 2:15 and 5: 130 of the Dutch Civil Code and to grant him a replacement authorisation to realise his building plan (or have it realised) on the grounds of Article 5:121 of the Dutch Civil Code.
The decision of 13 December 2022 overturned the decision of 27 June 2022 and the subdistrict court authorised owner 2 to realise the roof structure on the top floor in accordance with the granted environmental permit in the absence of permission from the owners' association. In short, the subdistrict court ruled that the owners‘ meeting should not have reasonably refused to grant permission for the rooftop extension after weighing up all the interests and circumstances involved. The Homeowners’ Association did not agree and lodged an appeal.
Time limit for appeal
The first issue to be addressed in the appeal was whether it had been lodged in time.
The deadline for lodging an appeal against a decision on a request to overturn a decision by a body of the homeowners' association is one month (art. 5:130 paragraph 3 BW). The subdistrict court had overturned the decision of 27 June 2022 of the general meeting of the homeowners' association on 13 December 2022. An appeal was not lodged until almost three months later. The substance of the notice of appeal did not (at least not clearly) challenge the subdistrict court's annulment of the resolution of 27 June 2022. If the appeal had been directed against this annulment, it would not have been lodged in time and the appeal would have been inadmissible.
However, on 13 December 2022, the subdistrict court had also decided, in the absence of authorisation from the meeting of the owners' association, to authorise owner 2 to realise the roof structure or have it realised on the basis of Article 5:121 of the Dutch Civil Code. As regards that decision, the usual period of three months for lodging an appeal applies in principle. Since the appeal was directed against that authorisation decision, the appeal was filed in a timely manner.
The appeal did not extend to the decision to overturn the decision of 27 June 2022 of the general meeting of the homeowners' association. The court could, however, rule on the decision to authorise owner 2 to realise the roof structure on the top floor or have it realised.
The ruling of the court of appeal in The Hague
The court of appeal came to the conclusion that a replacement authorisation based on article 5:121 of the Dutch Civil Code was not possible because the realisation of the roof structure would lead to a conflict with the deed of division.
The court justified this as follows:
“Based on the deed of division, the building consists of five storeys (basement, ground floor and first to third floors) with private and communal areas. A plan of all the storeys is attached to the deed, showing the boundaries of the various private areas of the building and the land (a division drawing). The roof of the building is located above the third floor. The communal areas include the foundations, the load-bearing walls, the exterior walls (including window frames), the terraces, the floors (except for finishing layers in private areas) and the roof. These areas are therefore jointly owned by both apartment owners, each with an equal share.
It is certain that owner 2 wants to add an extra floor to the building with his construction plan, which he will designate and use as a private area under his apartment right.
The permission of the meeting of the owners' association is required to be allowed to carry out such a construction plan. For (among other things) cases in which an apartment owner requires permission from the owners' association or its bodies for certain actions relating to common areas, Article 5:121, paragraph 1 of the Dutch Civil Code stipulates that this permission may be replaced by authorisation from the subdistrict court at the request of the person requiring it. This authorisation can be granted if permission is refused without reasonable grounds (or if the person who should give permission does not respond). However, the judge cannot grant this authorisation if the actions for which the authorisation is requested would violate the deed of division. After all, the authorisation replaces the permission of the owners‘ association and it follows from the law that a decision by the owners’ association to grant permission that conflicts with the deed of division is null and void. In such situations, the deed of division must (also) be amended.
Such a situation is occurring here. After all, realising the building plan will result in a different layout of the building than the one in the deed of division and on the division drawings. The current roof will be largely converted into a floor (for the superstructure) and a new (fourth) floor will be added to the building, with new walls, windows and doors and a new roof. There is nothing about this in the current deed of division and the floor is also not shown on the current division drawing. Moreover, the new floor (including the planned terrace on that floor) will be used privately by owner 2, while according to the current deed of division the walls, windows, (exterior) doors and roof are communal. This means that realising the extension desired by owner 2 without the associated amendment of the deed of division and drawing would lead to a violation of the deed of division.
It follows from the above that in these proceedings, owner 2 cannot be granted authorisation on the basis of Article 5:121 of the Dutch Civil Code to realise the building plan he desires or to have it realised."
Conclusion
The court of appeal therefore ruled that the substance of the appeal was not clearly directed against the annulment of the decision, but exclusively against the replacement authorisation issued, for which the normal appeal period of three months applies. If the appeal had been directed against the annulment of the decision, it would have been inadmissible. In this case, the court of appeal could therefore hear the appeal.
To prevent inadmissibility, it is therefore important to consider in good time what you wish to appeal and whether the normal period of three months or the short period of one month applies.
If you would like to know more or have questions about your position as a condominium owner, please feel free to contact one of our lawyers. We are happy to be of service!