In today's article, we continue our series on common areas of properties in the context of the rights and obligations of housing communities and unit owners. We will focus in particular on how court decisions treat terraces in multi-family buildings and how this impacts the rights and obligations of both the housing community and individual unit owners.
It's worth pointing out from the outset that, pursuant to Article 13, Section 1 of the Act of 24 June 1994 on Ownership of Premises (" UWL "), the owner of the premises is subject to a number of obligations related to their premises. The owner of the premises must bear the costs of its maintenance in full. This includes renovation costs, repairing faults in the premises, costs resulting from the use of water, electricity, gas, etc., as well as public liabilities such as property tax. Furthermore, the owner of the premises is obligated to maintain household order, which seems obvious given that compliance with appropriate norms between property owners is crucial to maintaining good relations and avoiding neighborly conflicts.
Regardless of the obligations strictly related to the premises themselves, each owner is obligated to contribute to the management costs associated with maintaining the common property. In a previous article ( #224 ), we pointed out that there are certain discrepancies in case law regarding the classification of balconies, for example, as common parts or as appurtenances to individual premises.
Why is this so important? Because when it comes to the obligation to cover maintenance costs, this cost falls solely on the owner (or owners, if there are multiple owners) of the premises. However, when it comes to common areas, this cost is borne by the housing community and is therefore divided among the members of the housing community in proportion to their shares in the common property (although there may be some exceptions here, for example, in the case of commercial premises). Therefore, depending on whether we classify a given element as a common area or as an element of the premises (or an appurtenance to the premises), the amount and scope of the costs we will have to bear will be decisive.
It must be admitted that, in terms of costs, these can often involve significant sums. This is where doubts arise regarding how to treat, for example, balconies and terraces in multi-family buildings allocated for the exclusive use of a given unit owner. On the one hand, at first glance, it seems that since they constitute a structural element of the entire building, they should be considered a common area. However, on the other hand, such a balcony or terrace is used exclusively by the owner of the unit to which it adjoins. It is also worth noting that this distinction is important in the context of work that the owner of the unit would like to perform on the balcony or terrace, as in certain circumstances, consent from the housing community may be required for such work.
So how were cases like this decided by the courts?
The case law in these cases has noted that the problem is much deeper than simply attempting to classify balconies or terraces solely into one of the above-mentioned two groups. For example, in the judgment of the Supreme Administrative Court of September 28, 2022, file reference II OSK 1549/20, the Supreme Administrative Court confirmed that the owners of individual premises are responsible for maintaining the terrace belonging to the premises in proper condition. However, this applies only to the terrace's surface finish and the space used exclusively for the housing needs of the owners of the premises. Therefore, the housing community will, in turn, be responsible for maintaining the terrace's structural elements (such as the ceiling slab) in proper condition, as this is an architectural element of the terrace structure permanently connected to the building structure .
Therefore, in principle, all orders related to the removal of irregularities in the technical condition of the terrace should be addressed first to the housing community, and not to the owner of the premises to which they belong, because "it is the housing community that is obliged to maintain the building, as a construction object, in proper technical and aesthetic condition and to prevent excessive deterioration of its functional properties and technical efficiency .
The above ruling concerned the implementation of a mandatory major renovation of the terrace and balcony belonging to a specific residential unit, imposed by a decision issued by the District Building Inspectorate. The owner of the unit to which the terrace belonged complained about the poor technical condition of the terrace and balcony. The scope of the renovation was very broad and included, among other things, interference with the structural elements of the terrace and balcony, while the expert report indicated a number of construction errors that could threaten the safety of the building. The Housing Association, which was obligated to carry out the repairs, claimed that it had been erroneously considered the sole addressee of the District Building Inspectorate's decision and argued that the work was not part of the common property. Ultimately, the Housing Association was obligated to carry out the repairs. Even though this ruling did not decide on the issue of bearing the costs of repairs, but only on who is obliged to carry them out, usually in such situations, in order for the owner of the premises to ultimately bear the costs, it would be necessary for the Housing Community to prove that they were responsible for the poor condition of the terrace and balcony. Considering that the defects in this case concerned construction errors (which the owner of the premises obviously could not have influenced), it is impossible to find a basis for charging the costs to the owner of the premises.
A similar thesis also results from the ruling of the Supreme Administrative Court of 20 February 2019, file reference II OSK 794/17, where the court also noted that it is architectural or aesthetic considerations that determine whether a balcony, terrace or their elements may be considered as part of the common property.
In summary, from a legal perspective, it is impossible to clearly define the status of balconies or terraces in multi-family buildings due to their dual nature. Portions of the terrace that serve the individual needs of the unit owner should be treated as belonging to the unit, while structural elements of the balcony/terrace are considered common areas, and therefore, in this respect, the housing community is responsible for maintaining their proper condition.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of October 22, 2024
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