According to Art. 38, para. 1 of the Law on Property (LA), for buildings in which floors or parts of floors belong to different owners, common to all owners are:
| – the land on which the building is built; – the yard; – the basics; – the external walls; – the internal dividing walls between the separate parts; – the internal load-bearing walls; – the columns; – the braces; – the plates; – joists; – the stairs; – the sites; – the roofs; | – the walls between the attic and basement rooms of the individual owners; – chimneys; – the external entrance doors of the building and the doors to common attics and cellars; – the main lines of all types of installations and their central arrangements; – the elevators; – drainage pipes; – the porter's quarters – and anything else that by its nature or purpose serves for general use. |
The objects listed above are called common parts in his own way nature, since without them it is impossible for the building to exist, and for this reason they cannot be counted as individual property of the apartment owners in a building.
The law allows, in art. 38, para. 2 of the ZS, the parts of the building that serve only some of the separately owned floors or parts of floors, to be common only to the persons whose premises they serve. However, this rule excludes those common areas that serve the entire building, i.e. it is inapplicable regarding the common parts under nature, but only concerning the common parts by purpose.
Common parts by purpose are those without which the building can exist, unless there is a legal norm that obliges their inclusion in the building[1], as they can for example be premises for:
| – porters; – dryers; | – corridors to individual objects; – washing machines; |
The common parts of nature, which serve the entire building, cannot be individually owned, even if they are immediately available only to individual owners, objects and floors. Such general purpose parts are for example:
| – the basics; – the external walls; – the internal load-bearing walls; | – the plates; – the columns; – the roofs. |
For example, the building cannot exist without external walls, which, although they are completely under the immediate influence and use of the objects they surround, are an essential part of the building's construction. This also includes the facade of the building. The same applies to, for example the slabs between the floors - it is possible that several floors are owned by only one person, and the slabs between them are practically under his authority, but structurally the slabs belong to the whole building, and one person cannot dispose of them, as it would endanger the existence of the whole building .
Also, every single building cannot exist without a roof which de facto serves only the object that is located immediately below it, but nevertheless the roof is common to the entire building and to all owners.
In the context of the constant renovation of individual residential units, and in particular, the installation of external thermal insulation, colloquially known as "sanitation"[2], as well as with a view to defining the external walls and the facade as common parts in nature the question arises as to the way in which the same can be legally carried out, as well as the responsibility for the distribution of costs for this, inasmuch as all external walls and facades are common to the entire building, and not to the individual sites to which they are located. This article aims to answer the question of how much "renovation of a piece" is allowed, in which cases it is not, and what is the responsibility of apartment owners for this.
The different types of renovations in the condominium and distribution of costs
According to Art. 41 of the Civil Code, each owner in proportion to his share in the commons, is obliged to participate in the expenses necessary for their maintenance or restoration, and in the useful expenses, for the implementation of which a decision was taken by the general meeting.
Pursuant to item 8, § 1 of the DR of ZUES repair needed is activity for bringing the building, common parts, installations or parts of them into compliance with the legal requirements for the technical suitability of the building and installations, including the roofs, with a view to removing obstacles or inconveniences created for the normal use of the building and the independent objects in it.
Pursuant to item 9, § 1 of the DR of ZUES urgent repair is activity to prevent the destruction of the building, its structural elements, common parts, installations or parts of them, as well as to remove significant damage and deformations, leading to danger to the life and health of owners, users, residents and other persons, to causing damage to the environment and nearby buildings.
According to item 10, § 1 of the DR of ZUES, in conjunction with item 66 of § 5 of the DR of ZUT, in conjunction with art. 169, para. 1 and para. 3 ZUT major renovation under construction is a complex of construction and assembly works related to the fulfillment of the basic requirements for constructions, defined in Annex I of Regulation (EU) No. 305/2011 of the European Parliament and of the Council of March 9, 2011, to determine harmonized conditions for the market offering of construction products and for the repeal of Directive 89/106/EEC of the Council (OJ, L 88/5 of April 4, 2011), for: 1. mechanical resistance and resistance; 2. safety in case of fire; 3. hygiene, health and environment; 4. accessibility and safety during operation; 5. noise protection; 6. energy saving and heat storage; 7. sustainable use of natural resources, which are carried out during operation and affect the construction elements of the construction, including the enclosing structures and elements of buildings, facilities and elements of the technical infrastructure - heating, ventilation, air conditioning, electricity, water supply, sewage and other installations.
Pursuant to item 11, § 1 of the DR of ZUES management and maintenance costs are the costs of consumables related to the management, for the remuneration of the members of the management and control bodies and of the treasurer.
Pursuant to item 12, § 1 of the DR of ZUES useful costs are the costs that increase the value of the building during remodeling and repair of the common parts are not provided for by law and are outside the costs of necessary and urgent repairs and basic renovation.
Pursuant to item 13, § 1 of the DR of ZUES maintenance of common areas is activity aimed at keeping the common areas in good condition.
According to item 18, § 1 of the DR of ZUES, in conjunction with item 42 of § 5 of the DR of ZUT, major repair is under construction partial restoration and/or partial replacement of structural elements, main parts, facilities or installations of the construction, as well as the construction and assembly works, with which initially inserted but worn materials, structures and structural elements are replaced with other types or new types of works are carried out, with which their operational suitability is restored, improved or the term of their operation is extended.
According to Art. 48, para. 3 of ZUES the costs of repair, major renovation, reconstruction and remodeling of the common areas, for which a decision has been adopted at the general meeting of owners, are distributed among the owners of independent objects in proportion to the common parts of the building owned by them.
ZUES, unlike ZUT, does not define "ongoing repair", which according to § 5, item 43 DR of ZUT is the improvement and maintenance of the buildings, constructions, equipment and installations, as well as internal alterations, which do not: a) affect the structure of the building; b) carry out activities such as removing, moving existing walls and making openings in them, when they affect the structure of the building; c) changes the purpose of the premises and the loads therein.
Necessary expenses are related to urgent (emergency) repair activities for the maintenance and/or restoration of the common parts caused by an unforeseen, unexpected event (flood, fire, etc.) or are associated with the need for current or basic repair activities imposed by wear and tear of the building, with the aim of bringing the common parts to a condition suitable for their purpose. The utility costs are those which increase the value of the building and have the character of improvements. The answer to whether repair work carried out by one of the owners constitutes necessary or useful costs related to the common parts of the building depends on the specific condition of the common part and the reason that necessitated its repair -Decision No. 193 of 30.11.2016 of the Supreme Court of Appeals under City Order No. 842/2016, III year o.
In view of the above, the external renovation of the individual independent objects (replacement of the previously existing external plaster of the facade walls with another type of material, installation of external thermal insulation) most honestly represents ongoing repair[3], for which a building permit is not required according to Art. 151, para. 1, item 1 of ZUT, and does not fall under the scope of necessary or urgent repair or major renovation, except when the prerequisites for this are present. When the implementation of external thermal insulation is not for the purpose of restoring and bringing the common parts to a condition suitable for use for their intended purpose, these expenses are more in the nature of improvements - Decision No. 2487 of 21.07.2017 of the RS - Plovdiv pursuant to City Decree No. 14964/2016.
However, when laying external thermal insulation is for the purpose of removing mold in the room, this is considered to be repair needed to bring the common parts into a condition suitable for their purpose - Decision No. 263004 of 20.09.2022 of the SGS according to city ordinance No. 1217/2021.
Administrative permissions
ZUT does not require the issuance of a building permit for ongoing repairs of buildings and facilities, according to Art. 151, para. 1, item 1, as opposed to qualifying each overhaul as construction from the relevant category, according to Art. 137 of the ZUT, as according to item 38 of § 5 of the DR of the ZUT. A problem is the qualification of the necessary and urgent repairs as activities under the ZUT, for which a building permit is required or not. So, for example, there may be a major repair according to the ZUT, which is at the same time urgent according to the ZUES, but for which a building permit is required[4], but there may be an ongoing repair according to the ZUT, which is again urgent according to the ZUES, and for which a building permit is not required[5]. In any case, however, even if there are emergency situations that require immediate repairs to be carried out, this does not release the obligation to issue a building permit, even during the repair works - Art. 148, para. 6 ZUT.
However, it is possible that the object is located in a building that represents immovable cultural value within the meaning of Art. 47 of the Civil Code. Art. 151, para. 2 of the ZUT decrees that the activities for which a construction permit is not required are carried out after coordination according to the order of the ZKN. In Art. 83, para. 1, item 1, b. "c" etc. 2, b. "d" of ZKN explicitly requires coordination of current repairs of objects representing cultural values or located in the protection zones of cultural values. Coordination is necessary both for repair work on entire buildings and for repairs on separate individual sites. When the current repair is carried out without such approval, it is illegal and subject to removal and restoration of the previous situation /Decision No. 10660 of 23.11.2022 of the Supreme Administrative Court under adm. d. No. 2601/2022, II o./.
The need for a condominium solution
The majority to decide on major repair and for major renovation, which is mandatory, according to Art. 48, para. 1 of ZUES, is taken from the condominium with not less than 51% majority of all condominium owners, according to Art. 17, para. 2, item 5 of the Law on Economic and Social Affairs.
To carry out necessary and/or urgent repair the decision is taken by a majority of not less than 50% of the ideal parts presented at the general meeting, according to Art. 17, para. 3 of ZUES[6].
The law allows an owner to independently carry out with his own funds, materials and/or labor repair needed of common parts of the building without a decision of the general meeting, in cases where he notified the manager of the need for one, but he did not convene a general meeting within one month of the notification (supplement, no. 82 of 2023, in force from 31.12.2023.), as according to Art. 48, para. 6 of the ŽUES, his expenses are reimbursed from the condominium, or from Repair and Renovation Fund.
Again, however, the ZEUS does not give an answer when and how it can be done ongoing repair and in what order it should be decided. Insofar as there is no express provision, the decision to carry out ongoing repair may be adopted by a majority not less than 50% of the ideal parts presented at the general meeting, according to Art. 17, para. 3 of ZUES.
The lack of unification of legal definitions leads to the problem in which current repair according to ZUT, it cannot be unambiguously qualified under ZUES. For example, on the one hand current repair can be maintenance of common areas, but it can also be incurring useful costs. While for maintenance of common areas ZEUS does not provide for an explicit decision[7], because it is a legal obligation of the owners, for incurring useful costs ZEUS provides for a majority of not less than 75 percent of all ideal parts of the common parts (Article 17, para. 2, item 3 ZEUS). De swear, carrying out useful expenses without a decision of the condominium is not allowed by ZUES, unlike carrying out necessary repairs, which, however, does not mean that carrying out current repairs without a decision is prohibited.
Allocation of costs
When an apartment owner improves a common part without a decision of the general meeting of apartment owners and without their consent (prior or subsequent), but with their knowledge and in the absence of their opposition, it follows, based on Art. 61, para. 2 PPE, that the floor owners who carried out the improvements be compensated for the necessary and/or useful expenses incurred by the floor owner who did not participate in their execution up to the amount of the latter's enrichment, if the work was undertaken appropriately /Decision No. 160 of 5.12.2019 of the Supreme Court of Appeals pursuant to Administrative Order No. 948/2019, I year o., GK, Decision No. 238 of 19.08.2013 pursuant to Administrative Order No. 1012 of the Supreme Administrative Court, 4 yrs., Decision No. 85 of 24.06.2014 under City d. No. 1157/2014 of the Supreme Court, 2 yrs. and Decision No. 228 of 13.12.2016 under City Decree No. 5571/2015 of the Supreme Court of Appeals, 3 years o./.
If the expenses are incurred with the consent of the condominium, then everyone participates in them in proportion to their share (percentage of ideal parts of the common parts) - Art. 30, para. 3 of ZS.
If the other co-owners objected, the relations between them are settled according to the subsidiary hypothesis of unjust enrichment under Art. 59 of the ZZD, and in the last two cases, an account is also kept of the type of expenses - necessary or useful, as well as in the application of Art. 61, para. 2 of the ZZD[8].
The above clarifications have the following practical application - when one apartment owner renovates his apartment (lays external thermal insulation on the walls serving his object), without the hypothesis of necessary or urgent repair, then the other apartment owners will owe the amount by which the value has increased of their properties and the common parts of the building (if such an increase exists). However, when there is a necessary or urgent repair, the floor owners owe proportionally the amount for the repair carried out, according to their ideal parts, regardless of the fact that the renovation does not directly affect their independent objects - Decision No. 263004 of 20.09.2022 of the SGS according to city ordinance No. 1217/2021.
However, when the remediation is illegal, ie. without a building permit issued, when one would be required, pursuant to PPVS No. 6/1974, item II. 7, and Decision No. 308 dated 30.10.2012 pursuant to Administrative Order No. 271/2012 of the Supreme Court of Appeals, 1 year, Decision No. 315 dated 25.10.2012 pursuant to Administrative Order No. 1189/2011 y., 1 y.o., as well as Decision No. 432 of 19.06.2009 under City Decree No. 6086/2007, 1 y.o. illegal construction carried out on it, which is subject to removal, does not constitute an improvement of immovable property or confiscation in favor of the state, i.e. no sums are due from the co-owners or condominiums for these improvements. In the absence of an issued and effective order for its removal under Art. 225 ZUT, it should not be assumed that the construction is subject to removal and compensation is due for the same as for improvement.
From the foregoing, it follows that the partial renovation of buildings and independent objects in them, which has become a mass practice in recent decades, cannot always be qualified unambiguously, as well as the authorizations for the distribution of expenses are not the same. The remediation may be illegal and subject to removal if it is carried out without the relevant permits, when such are required, due to the lack of connection between ZUES and ZUT.
Ivan Nikolaev, attorney-at-law
[1] Decision No. 1700 of 14.12.2000 of the Supreme Court of Appeal under City Decree No. 733/2000, IV year o.
[2] From German - Sanierung - repair.
[3] Decision No. 10898 of 18.07.2013 of the Supreme Administrative Court under adm. d. No. 4467/2013, II o., Decision No. 816 of 20.01.2017 of the Supreme Administrative Court under adm. d. No. 4430/2016, II o., Decision No. 668 of 15.01.2020 of the Supreme Administrative Court under adm. d. No. 5014/2019, II o. etc.
[4] Decision No. 2009 of 14.02.2018 of the Supreme Administrative Court under adm. d. No. 7204/2017, II o.
[5] Decision No. 13360 of 9.11.2010 of the Supreme Administrative Court under adm. d. No. 7843/2010, II o.
[6] Decision No. 285 of 26.05.2014 of the Supreme Court of Appeals under City Decree No. 1694/2013, I year o., GK.
[7] An ad hoc repair decision can be adopted by a majority of more than 50 percent of the common parts represented, but only when it does not concern major repair and major renovation.
[8] Decision No. 85/24.04.2014 of the Supreme Court of Appeals, II City Dept. under City Decree No. 1157/2014
