Dispute with your homeowners’ association or its manager? Here are your legal options!

What can you do if you have a dispute with the board or the manager of the homeowners’ association? For example, regarding overdue maintenance or whether sustainability measures are too expensive?

When you buy a flat, you automatically become a member of the homeowners’ association (HOA; Dutch: Vereniging van Eigenaren; VvE). This means you share responsibility for the management and maintenance of the building, but you are also bound by decisions taken collectively. In practice, this regularly leads to disputes. Think of differences of opinion regarding maintenance, sustainability measures or service charges.

Furthermore, recent research shows that a significant proportion of flat owners are dissatisfied with the performance of their HOA manager. What can you do if you disagree with a decision made by the HOA or if the manager is not performing their duties adequately?

Decisions by the owners’ association: not every decision is set in stone

Within an owners’ association, important decisions are taken at owners’ meetings. Many decisions are taken by a simple majority. However, depending on the deed of division, the applicable model regulations and the nature of the proposed works, a qualified majority may be required.

It is not uncommon for an owner to disagree with a decision that has been taken. In such cases, they do not have to accept that decision immediately. Depending on the circumstances, a decision may be void or voidable, for example if it contravenes the law, the deed of division or the principles of reasonableness and fairness.

It may therefore be advisable to bring a decision before the court. It should be noted, however, that the court exercises restraint when reviewing decisions. The fact that an owner disagrees with the substance of a decision is not, in itself, sufficient. There must be circumstances which mean that the decision cannot legally stand.

Overdue maintenance and sustainability measures

Discussions within owners’ associations increasingly centre on maintenance and sustainability measures. The costs of energy-saving measures can be substantial, leading owners to hold differing views on the necessity and affordability of such investments.

At the same time, a homeowners’ association has a legal responsibility to maintain the building properly. If necessary maintenance is systematically postponed, this can lead to damage to the building and liability issues. Furthermore, insufficient provision for future maintenance can cause financial problems. The law therefore requires homeowners’ associations to set aside sufficient funds annually for future maintenance.

It is therefore important that decisions are carefully prepared and that the financial rationale is clear.

Disputes with the homeowners’ association

It is generally advisable to first attempt to resolve the dispute with the owners’ association through mutual consultation. This might involve a meeting with the board, requesting that the matter be placed back on the meeting agenda, or engaging an independent mediator. Only when consultation fails to produce a solution and the owners’ association’s decision or action gives cause to do so may legal proceedings be an appropriate next step.

However, there are short statutory time limits for challenging an owners’ association decision. In the case of a request to set aside a decision, there is a limitation period of one month from the date on which the applicant became aware of the decision or could reasonably have become aware of it. In practice, this period often begins to run from the meeting at which the decision was taken or, if an owner was not present at that meeting, from receipt of the minutes or another notification of the decision. Timely legal advice and action are therefore important.

Problems with the owners’ association manager

Many owners’ associations outsource day-to-day management to a professional manager. The manager’s responsibilities may include:

• administrative management;
• financial management;
• organising meetings;
• drawing up maintenance plans; and
• overseeing maintenance work.

Although a professional manager is supposed to ensure expertise and continuity, in practice this is not always the case. Surveys of owners’ association members reveal complaints primarily concerning:

• poor or slow communication;
• rising management costs;
• insufficient expertise;
• poor service provision; and
• limited availability.

This can have serious consequences. If maintenance is neglected or decisions are not properly implemented, the entire owners’ association ultimately suffers as a result.

What can you do about poor owners’ association management?

If you are dissatisfied with the service provided by the manager, it is advisable first to check what arrangements are set out in the management agreement. The owners’ association can then hold the manager to account for fulfilling their obligations.

Depending on the situation, various steps may be considered:

• raising the complaints at the general meeting;
• asking the board to formally address the manager;
• making use of an internal complaints procedure (if available);
• lodging a complaint with a trade or interest organisation, such as Vastgoed Management Nederland (VMN) or VvE Belang, if the property manager is a member of such an organisation;
• terminating the management agreement and appointing a new property manager.

As the agreement is usually between the owners’ association and the property manager, an individual owner will generally have to act through the owners’ association or the board.

Conflicts between flat owners

Not every conflict within a HOA relates to the board or the property manager. Disputes frequently arise between residents themselves, for example concerning:

• noise nuisance;
• use of communal areas;
• renovations;
• parking; or
• breaches of the house rules.

In many cases, the house rules provide a basis for addressing breaches. The board may also – if the rules so provide – issue warnings or impose fines. Where consultation and mediation fail to resolve the issue, legal proceedings may be necessary.

And what about tenants?

Tenants living in a block of flats must also comply with the rules set out in the deed of division and the house rules. However, they are not members of the owners’ association and therefore have no voting rights at owners’ meetings.

This means that a tenant is usually dependent on the landlord to influence decisions made by the owners’ association. Only in exceptional circumstances, such as in the event of serious unlawful nuisance, can a tenant take legal action independently.

Prevention is better than litigation

Taking legal action against an owners’ association is possible, but is by no means always the preferred option. After all, flat owners remain jointly responsible for the same building and will still have to continue working together even after legal proceedings.

A timely legal assessment of a proposed decision or a dispute with the board or the manager can often prevent a conflict from escalating. By consulting a lawyer and gaining an early understanding of your legal position, unnecessary proceedings and costs can be avoided.

HOA lawyer

Are you faced with a decision with which you disagree? Or do you have doubts as to whether your owners’ association manager is carrying out their duties properly? If so, it is wise to seek legal advice in good time. An assessment of the deed of division, the internal regulations and the relevant decision-making process can clarify what options are available to you and what appropriate next steps to take. Russell Advocaten’s specialists in homeowners’ association law have extensive experience in disputes involving owners’ associations and will be happy to assist you. Please contact us: