Legal questions about apartment rights

Questioner

Good afternoon, Our deed of subdivision living (Part of a mixed complex to which no model regulations have been applied) counts 30 apartment rights. 15 homes and 15 parking spaces. These parking spaces are not linked to the homes. An owner can choose not to buy a parking space or several. For all these 30 apartment rights separate fractions are included. This is also the case in the deed of Main Division for all Main Apartment Rights. However, the deed of subdivision of the residential property does not refer to the fractions for dividing the common costs. The deed of main division states that the owners of the main apartment rights must contribute in equal parts to the common costs. In practice this is nil due to the mixed nature of the complex. Should the deed of subdivision of homes now also divide the costs equally? And if so, is that over the 30 apartment rights or over the number of owners? Thanks in advance for your response Kind regards XX

Lawyer

If the deed of subdivision does not contain any provision for the payment of debts for which the joint owners are responsible, Article 5:113 paragraph 2 of the Dutch Civil Code applies, which states that unless the deed of division provides otherwise, these debts must be paid by the joint owners, each for an equal share. Paragraph 1 of that article states that the fractions are equal, unless a different ratio is determined in the relevant deed of division. This means that the owners of the houses and the parking spaces are each entitled to a 1/30 share in the community involved in the subdivision and therefore each must contribute 1/30 to the common debts. An owner of a house with one parking space contributes 2/30th, if someone has two parking spaces, that is 3/30. In itself this arrangement is fine as long as every homeowner is also entitled to one parking space, if that is no longer the case it is preferable to change the subdivision regulations, not only because owners of multiple parking spaces actually pay too much but especially to prevent discussion with the insurer. After all, every owner of a home or a parking space is entitled to 1/30 part of the community, at the moment that community consists of a part of the building, in the event of serious damage to the building the community consists of an amount to be paid by the insurer, the same entitlement applies here too!

Questioner

Dear Andre, Thanks. I had this suspicion myself. However, owners who have no space will not feel like making a change. As for the insurance, there is a separate arrangement in our deed. It states that the payments are made based on the assessment of the damage suffered. So here the fractions of the apartment rights come into play again. This is also correct because the 15 homes have different fractions or are not the same size. It concerns a separate division where in my opinion there is as little common as possible regarding the houses (namely, it concerns city/terraced houses on top of a garage). So apart from the courtyard and the garage that lead to the underground spaces, there is nothing common. Hence the equal parts, after all, everyone uses the corridors, stairs and the courtyard equally. To avoid discussion, the developer should have linked the parking spaces to the houses in my opinion. This did not happen. Thanks again. XX

Lawyer

You're welcome. The developer probably deliberately did not make that connection to be as flexible as possible during the sale, this often causes problems later on.