The co-ownership regulations
08 JANV. 2019 | BY OUR REAL ESTATE EXPERT LEX THIELEN, COURT LAWYER
The co-ownership regulation is an extremely important document in the operation of a condominium. We will therefore devote the legal section of this month, in order to highlight the most important aspects.
Mandatory nature
Any building subject to the status of the condominium must be provided with a joint ownership bylaw. This mandatory nature results from the fact that it is provided for by a provision of the amended law of 16 May 1975 on the status of co-ownership which is public policy.
A condominium building without a co-ownership regulation nevertheless retains its status and the 1975 law remains fully applicable to it. However, in this case, each co-owner, respectively the trustee, may at any time request the establishment of a co-ownership by-law.
It is rare today that a condominium building has no co-ownership regulations. In most cases, the co-ownership by-law precedes the co-ownership division, whereas it is most often a sale in the future state of completion by a developer, or a co-ownership share between owners undivided.
Object
The co-ownership regulation determines the destination of the private parts and the common parts (that is to say the use that can be made of them) as well as the conditions of their enjoyment. It also lays down the rules governing the administration of the common elements and fixes the share of the expenses relating to each lot.
The imperative nature of the law does not only apply to the existence of the co-ownership regulation, but also to its content which must be in accordance with the law.
As a result, if a co-ownership regulation does not resolve all the aspects listed above, each co-owner has the right to ask the judge to order the syndicate of co-owners to complete it on the points in question.
Limitations of the co-ownership regulations
Any clause unrelated to the purpose of the co-ownership by-law as defined above is deemed to be unwritten, that is, void.
Are also considered not written all the clauses contrary to the articles of the law of 1975 which are regarded as imperative by this law, like for example the right for the co-owner to dispose of his batch and to impose on him of real rights, the presumption of joint character of partitions or walls separating private portions and not included in the shell, the number of votes and majorities at general meetings, etc.
The same is true of the provisions of the co-ownership regulations concerning general meetings, the union council or the syndic, which would be contrary to the Grand-Ducal Regulation of 13 June 1975 prescribing the implementing measures of the 1975 law.
In addition, the provisions of the co-ownership regulations must not be contrary to ordinary law.
Restrictions on co-owners' rights
The co-ownership by-law may not impose any restriction on the rights of the co-owners except those which would be justified by the destination of the immovable, as it is defined in the acts, by its character or its situation. Such a provision is not invalid by operation of law, but any interested co-owner may request the annulment of such a clause by proving its unfairness.
Thus, a clause generally prohibiting the holding of any domestic animal can not be justified in relation to the destination of the building and should therefore be declared null and void. On the other hand, it would be different if the ban was on aggressive animals or "NACs", ie. new pets (reptiles, tarantulas, monkeys etc.).
The co-owner has on his lot both a right of disposition and of free enjoyment: he can therefore give it for rent. A clause in the co-ownership by-law which has the effect of restricting the right of the co-owner to rent his lot should therefore in principle be deemed unwritten. However, the case law allows in certain cases the validity of such clauses with regard to the destination of the building.
These restrictive clauses are, however, always strictly interpreted and must be assessed in concreto, the judge having to search according to each particular situation if the destination of the building justifies or not the restriction clause contained in the co-ownership regulation.
Thus, case law has accepted the clause of bourgeois housing, which prohibits or restricts the exercise of a professional activity in the building; such a clause is lawful because its object is the preservation of the destination of the building.
Establishment of the co-ownership regulations
In the case of the construction of a condominium by a developer, the latter in principle establishes a co-ownership by-law prior to the sale, and each co-owner agrees to the signing of the deed.
In condominiums where there is no co-ownership by-law, the syndicate must establish and publish a co-ownership by-law. The majority required for adoption is the majority of union members representing at least three quarters of the votes (reinforced absolute majority).
If the general meeting fails to adopt the co-ownership by the required majority, any co-owner may ask the civil court of the location of the building to proceed with its establishment.
If the drafting of the co-ownership by-law does not necessarily have to be made by a notary to be legally valid and impose itself on the co-owners after its adoption by the general assembly, the 1975 law provides that the co-ownership, Even if its subsequent modifications or additions, are not opposable to the successors in particular title of the co-owners (for example a tenant) than if they were transcribed on the registers of the conservative of the mortgages of the district of the situation of the building.
However, apart from administrative acts, only notarial deeds can be so transcribed, so that in fact a notarial act is required.
Modification of the co-ownership rules
For the modification of a provision of the co-ownership by-law concerning the enjoyment, use or administration of the common elements, the majority required by the general meeting is the majority of the members of the syndicate of co-owners representing at least three quarters of the voice (reinforced absolute majority).
The unanimity of the co-owners is necessary for a modification of the distribution of the expenses between the co-owners, the designation of the lots, the destination of the building as well as the privative parts and the modalities of their enjoyment, and the distribution of the quotas. -part of co-ownership.
When works or acts of acquisition or disposition are decided by the general meeting ruling by the majority laid down for this hypothesis by the law, the modification of the distribution of the expenses thus made necessary may be decided by the same majority. An adaptation of the distribution of the different categories of charges provided for in the Grand-Ducal Regulation to the criteria provided for by the 1975 law requires a majority of the votes of all the co-owners (absolute majority).
Finally, if the co-ownership by-law provides for a majority superior to that provided for by the law of May 16, 1975 (reinforced absolute majority) to take the decision to modify the share of rights in the common parts following an elevation or the construction of new buildings in the co-ownership, this clause of the co-ownership by-law may itself be amended only at the same majority.
Effects of the co-ownership regulations
The regulation of co-owner obviously imposes on the various co-owners. Each co-owner is bound to respect the constraints and charges, but any co-owner can also avail himself of the resulting rights.
The co-owner's by-law is also binding on all their successors (eg an acquirer or a donee), including tenants and occupants in any capacity, who must respect it.
However, with respect to the special estate owners, the co-ownership by-law (or an amendment to this co-ownership by-law) is only mandatory after it has been entered in the records of the registrar of mortgages.
If the tenant is, according to the law, obliged to respect the rules of co-ownership, he can not however avail himself of the rights which are attached to the quality of co-owner.
In case of violation of the co-ownership by the tenant, the syndicate of co-owners can directly take legal action against him, either to ask, in summary or in substance, the cessation of trouble, if necessary under penalty.
Supervision of the observation of the co-ownership regulations
Ensuring compliance with the co-ownership regulations is one of the tasks expressly assigned to the trustee by the 1975 law.
As soon as he becomes aware of the violation or non-compliance with the co-ownership regulations, he is obliged to intervene on his own initiative in order to put an end to the infringements and, if necessary, restore the premises to their original state, at the risk of to engage his responsibility. Thus he can have unauthorized installations or deposits removed at the expense of the co-owners who violate the by-law. Because of his own competence in this matter, he can not hide behind the absence of an opinion or an injunction from the trade union or the trade union council. It must also act, that the violation of the regulation comes from a co-owner or a third person.
Violations of the co-ownership regulations that the trustee must correct may also affect both the private parts and the common parts of the building.
Ensuring compliance with the co-ownership regulations also means ensuring that there is one in case he is appointed to a residence that does not have one.
However, no text grants the trustee the power to establish a provisional by-law itself until the general assembly adopts such a by-law. Such a regulation imposed by the trustee would not have binding effect.
Penalty for non-compliance with the co-ownership by-law
A telephone intervention, a letter, a warning or a notice by the trustee are in most cases sufficient to restore order. Otherwise, the trustee may bring legal action, even without the need for authorization from the general meeting.
In the absence of action by the trustee, each co-owner has the right to take legal action to restore the peaceful enjoyment of his share.
Non-compliance with the co-ownership regulations constitutes a breach of a contractual obligation, the co-ownership by-law being considered as an agreement between co-owners, even if it is a sui generis agreement that also has institutional aspects. The principle is thus the execution in kind with, if necessary, a restoration.
In the event that the syndicate of co-owners or a co-owner suffers damage as a result of the violation of the co-ownership regulations, he can ask the judge to convict the author of the disorder to pay him damages.
Consult all our articles rights and immo laws
By Lex Thielen, Lawyer at the Court and author of the books "The professions of real estate in Luxembourg law", Editions Larcier, 2010, "The lease contract", Editions Promoculture / Larcier 2013, "All about real estate" , Editions Promoculture / Larcier (1st edition 2015, 2nd edition November 2016), "Immobilienrecht in Luxemburg, einfach erklärt" (Editions Promoculture / Larcier 2016) and "Construction law in Luxembourg" (Editions Promoculture / Larcier February 2018).