WHAT CHANGES HAVE BEEN INTRODUCED BY AN AMENDMENT TO THE ACT ON OWNERSHIP OF APARTMENTS FROM 1 NOVEMBER 2018?
GARAGE PARKING LOTS AND STORAGE PREMISES
The previous lack of a legal regime for a garage parking lot had caused significant and also practical problems. What has been changed by the Amendment?
The Amendment has introduced new legal definitions of the following terms: a garage in a building, a garage parking lot and storage premises. In this connection, the right to exclusively use a garage parking lot has been defined as a usage right sui generis (one of a kind) associated with owning a co-ownership share on a garage in a building. The usage right to a garage parking lot shall be automatically transferred together with transfer or passage of this co-ownership interest. The co-owner may let the garage parking lot to a third person without the need for requesting a consent from the other co-owners. The right of the co-owner to use a particular garage parking lot may cease to exist only with a written consent of the co-owner in question, whose co-ownership interest is associated with the right to use the particular garage parking lot. Separate transfer or passage of this usage right is not possible. The other co-owners of the garage in the building do not have a right to any compensation for the exercise of the right to use a particular garage parking lot.
The co-owners of the garage in the building retain a pre-emptive right in the case of transfer of a co-ownership interest. However, the co-owners do not have this pre-emptive right in the case of transfer of the co-ownership share on the garage in the building (i) together with transfer of the ownership title to an apartment or non-residential premises in the same building, in a building that is structurally connected to the building, in which the garage is located, or in a building that, as part of a complex of buildings, otherwise mutually relates to the building in which the garage in the building is located, (ii) to an owner of an apartment or non-residential premises in the same building, in a building that is structurally connected to the building, in which the garage is located, or in a building that, as part of a complex of buildings, otherwise mutually relates to the building in which the garage in the building is located.
The right to exclusively use common parts of a building, common facilities of a building or appurtenances may belong to several owners of apartments or non-residential premises in the building jointly. At the same time, it is possible to establish an easement over common parts and facilities of a building, appurtenances and adjacent plot of land.
The right of a co-owner of a garage in a building to exclusively use a particular garage parking lot will be registered in the real estate cadastre in the form of a note. If your usage right to a garage parking lot associated with the co-ownership of the garage in the building was registered as at 1 November 2018, from this date it is automatically considered as a right to exclusively use the particular garage parking lot associated with the co-ownership share on the garage in the building registered in the real estate cadastre in the form of a note. If your usage right was not registered in the real estate cadastre by 1 November 2018, nothing is lost. The usage right to the garage parking lot shall be registered in the real estate cadastre on the basis of a written agreement between all the co-owners of the garages in the building, specifying which owner of a garage in the building may, exclusively on his own or jointly with another co-owner of a garage, use the particular garage parking lot.
The provisions concerning the right to exclusively use a garage parking lot apply by way of analogy to the right to exclusively use storage premises and to its registration in the real estate cadastre.
BALCONIES, LOGGIAS AND TERRACES
The previous rules concerning particularly balconies that could be used only by an owner of an apartment, from which the balcony could be accessed, caused controversies mainly as concerns a possible obligation of the owner of such an apartment to pay to the other co-owners a certain compensation. The Amendment ended this legal uncertainty.
The Amendment affected also the so-called relative common parts of a building, namely balconies, loggias and terraces. As concerns the balconies, loggias and terraces, they are not spatially defined parts of the building that could be characterized as premises or parts of a complex of premises, but they are structural elements of the external structure of the enclosure walls or the roof of the building, which, already on the basis of their technical solution and their technical function, must be common parts of the building as in the case of the enclosure cladding or the roof of the building. This principle will equally apply also in the case that they are elements abutting on individual apartments, while the fact that only the owners of the abutting apartments have access to such a structural element may be deemed irrelevant.
The Amendment unequivocally states that other owners may not claim compensation. On the other hand, repairs of balconies, loggias and terraces that are common part of the building are also financed from the fund for operation, maintenance and repairs. As before, for the purpose of creation of the fund for operation, maintenance and repairs of the building, 25% of the floor area of a balcony, loggia or terrace shall be counted towards the amount of the co-ownership interest.
Moreover, the amended definition of the floor area of an apartment now explicitly states that it means a floor area of all rooms of an apartment and rooms forming appurtenances of the apartment, however without an area of terraces, loggias and balconies; this does not apply in the case of terraces that are not common parts of the building. This change could affect the existing relatively common practice especially by some real estate agents, who in sale advertisements indicated the total floor area of an apartment, which automatically included also the area of a balcony.
AGREEMENT ON ASSOCIATION OF OWNERS AND ADMINISTRATION OF BUILDING
Some changes affected also the agreement on association of owners. They regulate and specify in more detail elements of and forms for the conclusion of the agreement on association of owners and the agreement on the performance of administration and specify in more detail conditions of validity of the agreements in the case of concurrent conclusion of several agreements (the valid agreement is an agreement that was signed as first). They regulate the regime of accession to the agreement, which is not formulated as an obligation of an owner anymore (to be complied with by a declaration on the accession to the agreement on association of owners/administration), but as the automatic accession to the agreement by virtue of law upon the acquisition of the ownership title.
As concerns the administration of a building, new is an obligation of owners of apartments and non-residential premises in the building to secure the administration of the building on the day of first transfer of the ownership title to an apartment or non-residential premises in the apartment building to a different person than the investor. The Amendment introduced a higher level of formality also in relation to a meeting of apartment owners, for example as concerns the manner of its convening, requirements for representation at the meeting as well as the determination of a quorum for particular types of decisions and in the case of a repeated voting.
SOME OTHER FORMAL CHANGES
The situational documentation is now not required to be enclosed to a proposal for entry with the exception of the first entry of the ownership title to an apartment. The Amendment introduces definitions of obligations of an administrator as well as defines documents that the administrator must return upon the termination of activities.