The policy that maintenance of window frames within an Home Owners Association is for the individual owners, is not legally valid when the deed of division states otherwise.
More and more often home owners associations (HOA; VvE in Dutch) and apartment owners come to us with the question who is responsible for the maintenance of window frames. In some cases it has been the case for decades that the individual apartment owners take care of this themselves and bear the costs, also in the case of renewal of the window frames. This is often based on an agreement between the apartment owners within the HOA or because it has simply grown that way, often in cases of non-active HOA’s. For years the owners have taken care of the maintenance themselves, then a new owner comes and asks the HOA for maintenance. The board of the HOA rejects the request and points to the usual course of action. What is right then? Has a customary right arisen and is the owner himself responsible for the maintenance? Or should the HOA carry out the maintenance and bear the costs as often follows from the deed of division?
It is important to always refer to the deed of division and the division regulations. These specify what is communal property and what belongs to the individual owners. If it is communal property, then the HOA is responsible for it. If it belongs to the individual owner, the individual owner is responsible for it.
In almost all standard division regulations – which are inextricably linked to the deed of division – it is stated that the window frames in the outer walls belong to the communal parts. This means that the VvE is responsible for maintenance, repairs and renovation of the frames and not the individual owners. What regularly happens, especially with smaller HOA’s, is that in deviation from the division regulations, the deed of division states that the window frames belong to the individual owner of the apartment. The deed of division then overrules the generic division regulations.
But what if all owners have decided jointly, during a HOA meeting or simply because it has become customary, that the individual owners themselves must take care of maintenance, repairs and renewal of the window frames, can the provisions of the deed of division and the applicable division regulations be set aside in this way?
The Court of Appeal of Amsterdam and the Court of Appeal of The Hague have ruled in two cases that the decision to charge the costs of maintenance of window frames to the individual owners is contrary to the provisions of the deed of division and the division regulations, since these state that it is part of the duties of the HOA, which makes that decision null and void on the grounds of art. 5:129 in conjunction with art. 2:14 of the Dutch Civil Code. Because that decision is null and void, the HOA is obliged to take care of the maintenance of the window frames that are communal parts. The costs associated with this are at the expense of the HOA.
According to the Court of Appeal of The Hague, an appeal to the nullity of the decision is not contrary to the principles of reasonableness and fairness, even though the majority of the owners were in favor of the decision and this policy has existed for 30 years. That the annulment of the decision will lead to higher maintenance costs for the HOA and possibly lead to complicated recalculations is also irrelevant. The policy is contrary to the deed therefor null and void and as the policy existed for so long it would have been within the HOA’s power to lay down this policy in the deed of division.
The Amsterdam Court of Appeal ruled that a reliance by the HOA on custom and usage does not hold. The provisions of the deed of division and the division regulations must be followed; if one acts contrary to them – however long – that is incorrect and one cannot derive rights from that on the basis of custom and usage. The fact that the HOA neglected to do so is at their expense and risk.
In short, what is stated in the deed of division and the division regulations is leading and cannot be deviated from. Even if all members of the HOA are in favor. Decisions and practices – no matter how long they exist – that are contrary to the deed of division and the division regulations are null and void. If one wants to put the responsibility for the maintenance of the window frames and windows on the individual apartment owners and this does not follow from the deed of division, one will have to amend the deed of division.
If you have any questions or would like advice on VvE matters, please feel free to contact us.
For more information you can contact Brugrecht advocaten at +31 (0)70-326 328 1 or email@example.com
This article is current at the date of publication. Due to continuous developments in the law, its content may no longer be up to date at a later date.