Right of use of the roof terrace has not been transferred to the new owner.
An apartment owner concluded an agreement with the board of the VvE (the owners association) regarding the exclusive use of the common roof as a terrace. That agreement also stated that the right of use was indefinitely transferable.
The owner then sells his apartment with roof terrace. And you guessed it, at some point the board of the VvE reports that the new owner is no longer allowed to use the roof terrace. The new owner is not amused and contests the decision. The judge agrees with the VvE. The new owner may no longer use the roof as a terrace.
How is that possible, as there were clear agreements?
In his ruling, the judge explains step by step why in this case the new owner has not bought a roof terrace with his apartment. First the judge examines whether a legally valid right of use has been granted. First it must be determined whether this is an act of management or an act of disposition. An act of management is an act that does not affect the situation of property law. The VvE can decide on these acts by a simple majority of votes.
An act of disposition does affect the situation of property. Resolutions that change the property situation must be passed unanimously or with 80% of all votes and the cooperation of the board. A change in the proprietary situation is, for example, a situation in which a common part is ‘given’ to an individual owner, as a result of which the ownership relations change. The Supreme Court did make the remark here that if the change is temporary and can be easily remedied, there is no question of a change in the proprietary situation.
The agreement states that this individual owner has obtained an exclusive right of use of the roof over the apartment that is indefinitely transferable to successive owners.
It was decided at members of the VvE that the owner could use the roof for a roof terrace, an act of management, but it was not decided that the owner would be granted an exclusive and transferable right of use, an act of disposition, as contained in the agreement.
The exclusive and transferable right of use of the common roof for a roof terrace, does not limit the rights of other owners only temporarily, but is unlimited in time. Therefore, the court ruled that this was a property law change requiring a unanimous decision or 80% of all votes with the cooperation of the board. This was not the case. In the absence of a legally valid decision in this regard and because the divisional deed does not provide this scope either, the board was not allowed to enter into this agreement with the exclusive and unlimited transferable right of use on behalf of the VvE at all. The agreement is therefore void on this point and the new owner cannot rely on it.
This was very disappointing for the new owner. No roof terrace and he cannot claim any damages from the VvE, because the use of the roof terrace is based on a void decision and the VvE is enforcing it. This is not unlawful according to the court and therefore the VvE is not liable for compensation. The new owner can only claim damages from the seller based on error. This is also very disappointing for the seller who was confident that everything had been properly arranged.
The ruling clearly shows how important it is to check VvE information properly before buying an apartment. Even if the seller thinks he has a legally valid exclusive right to use the roof terrace, supported by an agreement, always ask for the decision on which it is based. You, as a seller or buyer, don’t want to be deceived as the buyer and seller were in this ruling, do you?
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.