In the following parts, Magalie VandenBrouck describes in her master's thesis a very extensive and clear description about"a need that arose to regulate this form of forced co-ownership more extensively".

Magalie Vandenbroucke - Academic year 2019 - 2020/Ghent University

Introduction

Apartment buildings potentially group a large number of people, creating the need to regulate this form of coercive co-ownership extensively. One of these matters is the delivery, although this does not only occur in the context of apartment buildings, but also in smaller contracting works. In short, delivery means that the client receives the work and approves or accepts it. In practice, however, the terms delivery, receipt and acceptance are often used interchangeably, although strictly speaking these terms cover different meanings.

The first chapter of this master's thesis outlines a general framework of property law (1.1) and apartment co-ownership (1.2). Subsequently, the second chapter takes a closer look at the figure of the delivery, explaining exactly what the delivery and the distinction between provisional and final delivery entail (2.1), how the delivery is effected (2.2), who the parties involved are ( 2.3) and what the legal consequences are (2.4). Finally, the third chapter examines whether powers of attorney in the context of apartment co-ownership are possible at all (3.1), what they look like (3.2), who can obtain these powers of attorney (3.3) and whether there are any consumer law implications associated with these powers of attorney ( 3.4). Finally, a brief look is taken at the notarial practice's attitude to this (3.5).


1.1 What is property law?

8. Article 544 of the Civil Code stipulates that the right of ownership is the right to enjoy and dispose of a thing in the most absolute manner, provided that it is not used in a manner contrary to laws or regulations._cc781905 -5cde-3194-bb3b-136bad5cf58d_The right of ownership is considered one of the most important rights that a person can have with regard to a good. An owner has the enjoyment of his property, may use it and may dispose of it. Basically, the owner has full authority, as long as it does not violate any laws or regulations.

Article 544 of the Civil Code is thus identical to the Belgian provision, while the provision in the Dutch Civil Code is formulated slightly differently. The Dutch legislator clearly emphasizes that the property right is an exclusive right by the wording “to the exclusion of everyone” , while in Belgium and France this exclusivity has no legal basis, but is derived from the words “in the most absolute manner”.

9. The characteristics of property rights are the same in Belgium, France and the Netherlands:

- The right of ownership is the most complete right in rem, since the owner owns the right of use, the right of enjoyment and the right of disposal.

-  The right of ownership is a perpetual right that does not end after a certain period of time.

- The right of ownership is an exclusive right because an owner can exclude other legal subjects from the powers related to his property.

10. On January 24, 2020, the bill was approved by the plenary meeting of the Chamber of Representatives to insert Book 3 “Goods” into the new Civil Code. Article 3:50 of the new Civil Code will lead to a slightly modified definition of the right of ownership in Belgian law: “The right of ownership directly grants the owner the right to use the object thereof , to enjoy and dispose of it. The owner has the fullness of powers, subject to the limitations imposed by the laws, regulations or by the rights of third parties.”


11. In the current article 544 of the Old Civil Code is expressly described that the owner has the right to use, enjoy and dispose of his property, from which it is inferred that the owner has full powers. This fullness of power will henceforth be explicitly stated in Article 3:50 of the Dutch Civil Code. A second new element is the addition of “the rights of third parties” as a third limitation of property rights. The explanatory memorandum to the bill states that an owner must not only respect the limitations of objective law, but that he must also comply with subjective rights.

1.2 What is apartment co-ownership?

12. In addition to the exclusive right of ownership belonging to a single person, it is also possible that the ownership of the same property is divided among several persons. In that case there is co-ownership. In what follows, we will discuss what co-ownership – and more specifically apartment co-ownership as a special form of forced co-ownership – entails. First the terminology is clarified, followed by the legislative instruments and this for Belgium, France and the Netherlands.

1.2.1 Belgium

1.2.1.1 General framework

13. Co-ownership exists when two or more persons have joint ownership of the same thing. In this case it is therefore not the good itself that is split into two or more parts, but only the property right. An individual co-owner cannot therefore dispose of the entire business, but in principle can dispose of its abstract part.

14. There are three types of co-ownership: accidental or ordinary co-ownership, voluntary co-ownership and coercive or compulsory co-ownership:

- The accidental or ordinary co-ownership is the co-ownership that arises through circumstances beyond the control of the co-owners, such as, for example, after the opening of an estate.

- Voluntary co-ownership means that co-ownership between several persons arises through the agency of one or more co-owners. It is therefore very clearly a legal situation that has been created and wanted by one or more co-owners.

- Coercive or obligatory co-ownership is a form of co-ownership that arises because of the nature or purpose of the good.

15. In this context, particular attention should be paid to forced co-ownership. Originally, however, no definition was available and this followed from the interpretation given to it in case law and legal doctrine. The Court of Cassation stated in one of its judgments that co-ownership is the ownership of a thing that belongs undividedly to different persons. This therefore concerns goods that, because of their nature, serve for common use, but where the good itself is not broken down. It is only the ownership that is divided among the various individual co-owners.

16. A special form of forced co-ownership is apartment co-ownership. After all, numerous people who have both individual and joint interests group together in an apartment. This special form of ownership splits an apartment building into two parts: on the one hand there are the individual apartments or privatives and on the other hand there are the common or common parts. The individual co-owners each have the exclusive ownership of a privative and the common parts belong to all individual co-owners jointly. This abstracts from accidental and voluntary co-ownership and focuses exclusively on apartment co-ownership.

1.2.1.2 Legislative framework

17. With regard to the legislative framework of apartment co-ownership, there are three important legislative instruments: the Apartment Act, the Breyne Act and its Implementing Decree and the common law provisions on contracting. For the sake of completeness, the Public Procurement Act and its Implementing Decree should also be mentioned. However, the rules set forth herein only apply to the apartment co-ownership if one of the parties is a body required to comply with this law. This is further abstracted.

18. APARTMENT LAW - The legislator has deemed it necessary to regulate apartment co-ownership in a separate title in the Civil Code in a mandatory manner. The ratio legis of the Apartment Act is that many individuals are involved in this co-ownership and they represent both individual and collective interests. Precisely because of this wide variety of interests, the legislator considered it opportune to outline a clear legislative framework. However, the Apartment Law has undergone a number of adjustments through the Law of 18 June 2018. The aim of this reform was to make apartment law more flexible, more efficient, more balanced and more legally secure.

19. The Apartment Act applies when it comes to immovable property on which “a building or a group of buildings has been or can be erected and the ownership of which is divided into several lots, each of which contains a private part and a share in the common real estate components .” 

An important condition for the application of the Apartment Act is therefore the organization of private and common parts. The privatives form the main part and the common parts are regarded as a functional and indispensable part of this. Because of this functional aspect, the co-ownership is regarded as an accesorium or side issue of the exclusive property right associated with the privatives. In this respect, the Belgian legislator has therefore opted for a dualistic vision, in contrast to the monistic vision used in the Netherlands (infra no. 33). In summary, it can be said that the privatives and the common parts are inextricably linked, with the common parts being regarded as a functional part of the privatives.

20. The fact that the Apartment Act applies in a certain situation has a number of concrete consequences. The fact is that the basic deed and the rules of co-ownership (ie the articles of association) must be drawn up by means of an authentic deed and, in addition, rules of internal order must also be drawn up, which can be done in the form of a private deed. The basic deed contains a description of the immovable whole, of the private and common parts and also contains the determination of the share of the common parts that is attached to each private property. The value of these parts is taken into account in function of the net surface, the destination and the location of the private part, on the basis of the reasoned report of a notary, an expert surveyor, an architect or a real estate agent.

The co-ownership rules must also contain a description of the rights and obligations of each co-owner regarding the private and common parts.

The co-owners have a proportional right to use the common parts, unless otherwise stipulated in the articles of association. In addition, the co-ownership rules must also specify the reasoned criteria, the method of calculating the division of the burden, the stipulations and the sanctions relating to non-payment of those burdens.

The rules of internal order contain the rules regarding the method of convening, the working method and powers of the general meeting of co-owners, the method of appointment of the syndic, as well as his powers and the duration of his mandate and the annual period of fifteen days in which the general meeting of the association of co-owners must take place. The Apartment Law has undergone some changes due to the Law of 18 June 2018 and one of these changes is that the elements that must now be included in the internal order rules were previously found in the co-ownership rules.

21. The application of the Apartment Act also means that the organization of co-ownership is regulated by means of a legal person, namely the association of co-owners (hereinafter: VME), of which all co-owners are members. The VME is responsible for the maintenance and management of the building or group of buildings and has legal personality. To this end, two cumulative conditions must be met: on the one hand, there must be joint ownership through the transfer or assignment of at least one plot and, on the other hand, the basic deed and the regulations of co-ownership must have been transcribed at the competent office of the General Administration of Patrimonial Documentation .

However, the VME is not a separate legal entity, but consists of four bodies, being the general meeting of the association of co-owners, the syndic, the auditor of the accounts and the board of co-ownership (also: board of directors). . These bodies will be further explained in the second chapter in the context of their importance with regard to delivery (infra 2.3.1).

22. HOUSING BUILDING ACT or BREYNE LAW – Before the Housing Building Act came into being, the real estate sector experienced an upsurge due to an increase in on the one hand sales off plan, whereby homes were purchased before they were completed, and on the other hand the turnkey principle whereby property developers offer a total package at a global price. However, this advance was not accompanied by a corresponding legislative framework, which sometimes left many victims behind in the event of abuses by property developers or bankruptcies. Just think of the bankruptcy of the major construction promoter Etrimo. This disaster prompted the legislator to take action and that is how the Housing Construction Act, also known as the Breyne Act, was created.

The Breyne Act provides for formalities that must protect buyers against, among other things, the seller's insolvency risk. This protection is in addition to common law, since the provisions of the Breyne Act are of mandatory law and non-compliance is sanctioned with nullity. This nullity can be invoked up to the provisional acceptance. Together with the Breyne Act, its Implementing Decree of 21 October 1971 must also be taken into account.

23. The scope of the Breyne Act is set out in Article 1: it covers any agreement for the transfer of ownership of a house or apartment to be built or under construction, as well as any agreement whereby an undertaking is entered into to build, to build or provide. However, the conditions here are, on the one hand, that the house or apartment is intended for housing or for professional purposes and housing and, on the other hand, that the buyer or the client is obliged, according to the agreement, to make one or more deposits before the completion of the building.

Consequently, three cumulative conditions must be fulfilled for the Breyne Act to apply:

- It concerns a house or apartment;

- It concerns a transfer of ownership agreement;

- Before the completion of the works, the buyers must make one or more deposits.

24. The most important element of the Breyne Act to be investigated in the context of this master's thesis is that the Act makes an explicit distinction between provisional delivery on the one hand and final or final delivery on the other. These concepts are explained in greater depth (infra 2.1.1).

25. COMMON LAW PROVISIONS – In addition to the above special provisions, also referred to as the lex specialis, there is of course the general contracting law. These common law provisions can be found in Articles 1787 through 1799 of the Civil Code. These provisions do not refer to “delivery”, but only refer to the delivery of the construction work as an obligation for the contractor and the receipt and approval of these works by the principal. The article par excellence is Art. 1792 Civil Code, which deals with the ten-year liability of the contractor and the architect for serious stability-threatening defects (infra 2.4.1.3, d).