Legal questions about VvE? Get free advice!

Questioner

Dear Sir/Madam, as the owner of an apartment (multiple apartment rights) I am a member of the VvE. The resident/owner of the ground floor had a sales inspection carried out which showed that her ground floor (beams and supports) are in poor condition. In addition, mold etc. was found (as appears from reports). She is now claiming the full damage and renewal of the beams and floor from the VvE, arguing that the crawl space is part of the VvE. The floor is crooked and bending, which has apparently been happening since the current owner bought the house (more than ten years ago). In the VvE meeting, nothing was ever actually reported about this and/or fixed. In my estimation, this shortcoming was already present when the house was purchased. Question: 1) Is the living room floor/ground floor part of the crawl space or VvE? 2) the current owner should have raised the alarm earlier when purchasing the house (with the VvE) so that this technical problem could have been recovered from the then seller.

Lawyer

the question of whether or not these costs are for the account of the VVE depends on what is stipulated in the (model) regulations regarding the 'common parts' of the building. In most regulations, the floors are 'common'. If this is also the case with your VVE, then the costs are for the VVE. In that case, the VVE has the obligation to have the matter repaired, but may choose the contractor and the method of execution itself. If the floors/beams are not 'common areas', the current owner has no claim on the VVE, but at most on the previous owner. In that case, the VVE remains 'out of the firing line'.

Questioner

Thanks for your response. In a recent meeting it was unanimously noted and established that our deed of division (before the model contract existed) says nothing about this specific case. In the meeting it was decided that the floor is therefore not 'the property of' the VvE. The owner will still inquire whether she can find anything out legally from case law, but I do not expect this to be relevant. Her opinion is that the broker says that this is part of the VvE. (Vereninging eigen Huis speaks of a 'possible' part of the VvE). In my opinion, the deed is always leading, regardless of what the new model contracts say about it. Is my statement correct? thanks for any response.

Lawyer

Only in a deed can a model regulation be declared applicable. If nothing is determined in the deed about the floors and no model regulation is declared applicable, you are right. I assume that a model contract is meant by a purchase contract (which is something different from a model regulation). I would request the complainant to state with reasons what he bases his claim on. (A statement from a broker is irrelevant). If it appears that the complainant bases his claim on a purchase contract or broker's statement, you as a homeowners' association are within your rights to refuse replacement.

Questioner

I have here before me an old document (copy) in which it is stated: today October 7, 1969 appeared before me ...... at .... The person appearing has declared to establish by this deed the following model regulations, as referred to in article 638f under fourth of the Civil Code. - which can be declared applicable in deeds of division of real estate into apartments, within the meaning of article 638a (?) of the Civil Code, - after it has been transcribed into the public registers on site ..... etc. etc.; Furthermore, I have a 'deed of delivery' dated September 2008. The final declaration states: The buyer declared himself familiar with the contents of the deed of division into apartment rights on November 3, 1970 before Mr.... and with the Regulations as referred to in Article 5:112 of the Dutch Civil Code. established in the aforementioned deed of division and in which the model regulations established by deed executed on October 7, 1969 before notary ... in ... registered ... etc.. etc. were declared applicable. Are the new model contracts that the ground floor owner in question refers to (1973 / 2006) automatically applicable? I don't think so, unless this is regulated by law as automatic (but then my 2008 deed is incorrect...

Lawyer

The model regulations from the 1969 deed apply. Other (new) model regulations can only be declared applicable by notarial deed and you must agree to that deed; they are therefore certainly not automatically applicable.

Questioner

Thank you for the prompt reply; your statement is in line with my view that new model regulations cannot simply be declared applicable to older agreements (i.e. our 1969 regulation). In my opinion, case law on this matter is not automatically applicable and I expect that any legal proceedings will prove me right. The VvE has never put a proposal to the vote that we conform to the new recent model regulations (most recent from 2006, I understand); therefore our regulations from 1969 are still applicable, especially since no new notarial deeds have been filed. I therefore conclude that the VvE as a whole does not have to contribute and which renewal/replacement of the floor and the floor joists. In addition, the owner of the ground floor is only now reporting this damage and has not complied with the rules to report this directly to the VvE. If this had been done, the damage might have been limited.

Questioner

Dear sir, despite my (above) arguments (in a letter to the chairman of the VvE) that renewing the floor benches + additional costs cannot be charged to the VvE, a meeting has now been called for next week. Since the owner of the ground floor has 2 votes (in a total of 5) and the 1st floor is included in the vote, the meeting will be 2 against 3. Can that just happen? This would mean that everything can be brought forward in the VvE meeting and I lose the voting ratio.

Lawyer

Not everything that is brought forward in the VVE meeting can be decided 'simply'. The deed of division / regulations contain all the 'rules of the game' regarding the manner in which meetings are held and the taking of decisions. If a decision is taken in violation of these rules, the decision is null and void. If all formal rules are observed, the VVE can in principle decide on anything and everything. An amendment to the deed of division (e.g. by setting new regulations) is only possible if 4/5 of the votes are in favour. In addition, a decision can be annulled by the court because it is contrary to reasonableness and fairness. In your case it seems to come down to the latter: you hold the VVE responsible for the beams and the VVE (seems to intend to) then decides that the beams are not the responsibility of the VVE. Such a decision seems particularly unreasonable to me.

Questioner

Dear Mr. Zijlmans, in response to your last comment: I! am the one who disputes that the beams of the ground floor should be replaced at the expense of the VvE. Nowhere in our 1969 regulations is it stated that the VvE has an obligation to do this. It is therefore MY position that the owner of the ground floor should pay for her own costs in renovation and that I am therefore not going to contribute 8000 euros ad hoc to the VvE to finance this for her. (see also previous questions and answers)