Nearly 10 years ago, the first court disputes were initiated concerning the legality and enforcement of condominium decisions. Over time, more and more owners of separate properties have become interested in the management of condominiums, as this involves costs for them or affects their other rights relating to the ownership and use of common areas.
All decisions on floor ownership can permanently be reflect on the legal sphere of the owners, while at the same time this obligate all new owners to comply with already undisputed ones.
The decisions taken by the floor owners are recorded in minutes, which may be challenged in accordance with the procedure set out in the Act on the management of floor ownership. The court monitors only for legality, not for the appropriateness of the adopted decisions of the floor ownership. This means that the court may overturn a decision by which a general meeting allocates contributions for the maintenance and management of the building by individual units, because the law imperatively stipulates that these contributions shall be allocated according to the number of residents, but it cannot issue a decision that replaces the will of the general meeting – for example, to rule that 8.30 per resident will be collected.
Please note that any decision of the general meeting of the floor ownership is subject to a5> meeting of floor ownership is subject to independent judicial control and is grounds for initiating judicial proceedings. It is possible within the framework of judicial proceedings to challenge a decision of a general meeting to hold a new a29> meeting of the floor ownership and to take the same decision, which is challenged. If the latter is not contested, it will bind the members of the floor ownership, even a49> the court to revoke the decision on the initially contested protocol.
Which decisions of the floor ownership are subject to appeal?
All cancellations by the court are subject to all decisions on floor ownership that are taken in contradiction to mandatory provisions of the Law on floor ownership.
These may be decisions in which there are procedural violations: for example, the meeting was not convened, held, or announced in accordance with the procedure provided for by law.
The decision of the general meeting of the condominium owners may be revoked due to its conflict with substantive legal provisions: for example, a vote is taken to collect a contribution to the “Repair and Renovation” fund based on the number of residents, which would be contrary to Article 50 of the Condominium Ownership Act, which stipulates that the contribution shall be collected in accordance with the ideal shares of the individual owners in the common areas of the condominium.
!!! IMPORTANT: Only decisions that give rise to legal consequences are subject to cancellation. a6> decisions that give rise to legal consequences. If a decision does not give rise to obligations for the owner plaintiff, the same has no legal interest in bringing the claim.
What is the difference between challenging a decision on floor ownership and challenging the content of the minutes?
Pursuant to Article 16, paragraph 9 of the ZUES, any member of the general meeting may challenge the content of the minutes, including the authenticity of the decisions reflected therein. The challenge shall be made in writing to the management board (manager) within 7 days of the notification of the minutes, but no later than one month in cases where the owner, user, or occupant is absent.
At the same time, according to Article 40 of the ZUES, which states that “any owner may request the revocation of an unlawful decision of the general meeting.”
Challenging the minutes under Article 16, paragraph 9 of the ZUES concerns cases where the minutes themselves contain inaccurately reflected decisions – regardless of whether they are lawful or not. This would be the case if a decision to vote on an additional contribution is recorded, but no such decision was taken at the general meeting. Furthermore, challenges under Article 16(9) of the ZUES are not brought before the court, but before the manager/respectively the management board/of the condominium.
Since it is not being challenged in court, what is the point of challenging the content of the protocol?
The challenge under Article 16, paragraph 9 of the ZUES shifts the burden of proof in the proceedings under Article 40 of the ZUES: if we challenge a decision of the general meeting of the condominium before the court, it will not be presumed that the decisions described in the minutes have been taken, and this fact is subject to proof in the court proceedings.
The protection under Article 16(9) of the ZUES is rather a step towards the actual protection, which, however, is not a condition for its admission.
Can we challenge the decision directly under Article 40 of the ZUES? Yes, but then we will bear the burden of proving in court that the decision in question was not taken as written in the minutes.
Who has the right to appeal decisions of the floor ownership?
According to Article 40 of the Condominium Ownership Act, only the owner has the right to appeal decisions of the condominium owners’ association. It is accepted that other persons (residents, users, members of the household) have no legal interest in bringing such claims.
It does not matter whether the owner is a natural or legal person, or what type of independent property is owned (apartment, garage, commercial property, etc.).
The decision of the general meeting may also be challenged by new owners who have acquired ownership of the property within the period specified in Article 40 of the ZUES. According to case law, persons may not allege violations of the procedure for convening a meeting, but only the substantive illegality of these decisions.
It should also be noted that only the owner, who is a member of the respective condominium, has the right to appeal. If two condominiums are registered in one building, for example, the one at entrance A and the one at entrance B, the owner at entrance A cannot challenge a decision of the general meeting of the condominium at entrance B, because the decisions of that condominium are not binding on that person. The same applies to the owner of a property in a building that is not registered as a condominium.
Can the decisions of the condominium owners’ association be suspended while the case is pending?
The decisions taken by the condominium owners are subject to implementation after their adoption at a general meeting. This means that even if a decision is unlawful, it will be binding on the members of the condominium, even if it is appealed, and the decision will be enforced during the court proceedings until it is expressly revoked by the court.
Therefore, the law provides for a method to suspend the effect of decisions of the condominium owners’ association. This is done within the framework of a claim challenging a decision of the general meeting, with a specific request to suspend the execution of the decision. If the court considers that the claim is likely to be well-founded, it may suspend the execution of the decision by issuing a protective order. The protective order should be brought to the attention of the manager of the condominium, and for this purpose it is best to contact a bailiff to serve the document.
If it deems it appropriate, the court may allow a stay and sometimes require the applicant to provide security, which is refunded after the conclusion of the court proceedings if no damage has been caused to the condominium and the contested decisions of the condominium are upheld.
The deadline for appealing decisions of the condominium owners’ association is 30 days from the date of preparation and announcement of the minutes, for which a notice is posted in a visible and publicly accessible place in the building. Please note that it is not the minutes themselves that are posted, but a notice that they have been drawn up. The 30-day period for appealing against the decisions of the general meeting begins when the notice is posted.
The claimant in the proceedings is the owner of a separate unit in the building. Within the scope of the proceedings, it must be indisputably established that the person who has brought the claim has the status of owner by presenting a notarial deed or other document from which it can be concluded that he has the status of owner.
The defendant in the proceedings are the owners of a building under condominium ownership or, as has become common practice, the condominium itself or the condominium owners. Please note that the defendant is not the building manager, whether professional or not – a mistake that is often made when filing claims under Article 40 of the Condominium Ownership Act.
The proceedings are contentious, as the court is only concerned with the timely objections raised during the proceedings and does not monitor the legality of the decision. It is permissible to hear witnesses and expert opinions to establish the claims relied upon by the parties.
With the decision, the court shall revoke the decision of the general meeting of the floor ownership, if it finds that there is illegality, which concerns procedural or substantive provisions of the law.
In proceedings appealing decisions of the condominium association, costs shall be awarded to the party that has won the case.
Author: Attorney. Kristina Karakoleva
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Sole proprietorship law firm company “Silvia Petkova” has established specialists in the field of floor ownership.
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