Watch our webinar! “Tricky sickness issues”

4 tips to prevent deterioration due to dysfunctioning owners’ associations

Publication date: 18 December 2018
The current legislation already offers the necessary options for owners’ associations to take action against apartment owners that obstruct indispensable maintenance. They can be held accountable for their responsibility for the building as a whole. In addition, binding advice or mediation also provide appropriate opportunities, while substitute consent can be requested from the judge. Finally, the municipality can be appealed to.

vve

The problem

In an article published in De Volkskrant of 3 December 2018, the owners’ association interest group VvE Belang says that maintenance by owners’ associations is inadequate. This is because under current legislation, in particular within small owners’ associations, no majority can be formed to take measures and/or dysfunctioning apartment owners cannot be forced to contribute to maintenance of communal areas, such as facades, roofs or doorways.

The cause of this is that the owners’ association can only come to a decision for maintenance if a majority in the meeting agrees with the proposal. If there is no majority the proposal (for maintenance) is deemed to be rejected. Particularly in owners’ associations with an even number of voting rights this may lead to no maintenance being performed at all. Not just actual overdue maintenance but also the dysfunctioning of the owners’ association must be included by appraisers assessing the value of an apartment. This may cause apartments to become actually impossible to sell.

4 tips to enforce maintenance

The Act improvement owners’ associations took effect on 1 January 2018. This Act stipulates that owners associations have to save a certain statutory minimum amount for maintenance each year. The Act does not provide a (additional) solution for the maintenance that does not take place due to stalemates or indecisiveness within owners’ associations in addition to the various options provided by the former laws and regulations to resolve the aforementioned problem.

1. Comply with obligation to maintain building

Apartment owners must keep an eye on mutual reasonable interests and act accordingly, with a view to maintenance of the building. Apartment owners can hold each other accountable and, if necessary, claim compliance in court.

2. Make use of dispute resolution

The property division regulations of the owners’ association often include dispute resolution enabling the resolution of mutual disputes between members or between the owners’ association and members by experts such as arbitrators or binding advisers, or mediation.

3. Request substitute consent from judge

The owners’ association or a member can go to court to request substitute authorisation (consent) for the maintenance desired. The judge will grant the authorisation if the consent or contribution of the members is rejected without any reasonable cause. The more the need for maintenance increases, the more serious grounds the opponent will have to give to prevent the judge from granting substitute consent.

4. Call in the help of the municipality

If there is a risk of deterioration and the state a building is in could be a threat for public health or security, the law provides the possibility for the municipality to intervene in an owners’ association. With the authorisation of the court, the municipality can be provided with extensive powers, for instance:

  • Convening of the owners’ association
  • Making proposals in the owners’ association (for instance, undertaking maintenance or merging the owners’ association in another (active) owners’ association)
  • Entrusting a third party with the leadership of the owners’ association.

However, the municipality has no right to vote in the owners’ association.

The Housing Act offers the municipality the opportunity to bind the owners’ association to have an expert draw up a maintenance plan, or – in a critical case – the municipality can require an owners’ association and individual owners to contribute to the maintenance subject to payment of a penalty.

Our advice

The current laws and regulations offer various options to prompt obstructive apartment owners to take the necessary action. Make use of it and, if necessary, consult a lawyer to determine which option or combination of options is most likely to be successful.

More information?

Would you like to learn more about the functioning of owners’ associations? Do you want to make an apartment owner contribute to maintenance? Please contact us:

    Share on social media

    • Retail
    • Real estate and rent

    Real estate: 3 differences between renovation and maintenance in lease

    28 October 2015

    Buildings may be timeless but every now and then work will have to be carried out in order to prevent decay. Lessees and lessors have different rights and duties, depending on whether the work can be considered as renovation or (urgent) maintenance.

    read on
    • Employment law and dismissal

    Be careful with the employer’s statement!

    14 June 2021

    Before obtaining a mortgage or rental contract, banks or landlords often ask for an employer’s statement. Such a statement can sometimes have unintended consequences for the employer. What do you need to be aware of?

    read on
    • Expats
    • Administrative law and the environment

    The Netherlands: Gateway to Europe

    3 May 2021

    The Netherlands likes to present itself as “the gateway to Europe.” And not without reason: excellent travel connections (Schiphol Amsterdam Airport and Rotterdam Seaport) and a highly educated population speaking several languages.

    read on
    • Art
    • Employment law and dismissal

    Russell Advocaten recommended by The Legal 500 2021

    20 April 2021

    Russell Advocaten has for the 17th consecutive year in a row been included in The Legal 500. We are pleased with the recognition for the quality of our legal services by experts and clients. Please read what they say about us:

    read on
    • Retail
    • Real estate and rent

    Tenant and landlord must share pain of lockdown

    30 March 2021

    When is a tenant entitled to rent reduction? How are the consequences of the coronavirus crisis shared between landlord and tenant?

    read on
    • Retail
    • Real estate and rent

    What to do when a lessee goes bankrupt?

    25 November 2020

    There are still fewer bankruptcies than expected due to the coronavirus crisis. Many shops are still keeping their heads above water thanks to the government support. There is, however, a good chance that they will crash when the support is over. Especially if the second wave will be followed by a third wave. As a lessor, what do you have to pay attention to if a lessee goes bankrupt?

    read on
    • Real estate and rent

    Leasing/letting: A defect in the rented property: Who is responsible?

    26 October 2020

    What can the tenant of a property do if his rental enjoyment is affected by defects in the rented property? Does he have to solve this himself or does the landlord have to do so?

    read on
    • Fashion and luxury
    • Real estate and rent

    COVID-19 measures can be a ground for rent reduction

    29 September 2020

    COVID-19 measures are regarded as unforeseen circumstances. This means there may be a ground for rent reduction in the hospitality and retail industries. What does the tenant have to prove to be entitled to rent reduction? And how can the landlord counter the request of the tenant?

    read on