In a building subject to condominium ownership, the parts lying outside the independent units and set aside for the joint benefit of the owners are termed common areas. The Condominium Ownership Act No. 634 counts the staircases, the lifts, the roof, the garden, the car park and areas of a similar nature within this scope.
The daily use of these areas is one of the headings on which disputes are most heavily concentrated in practice. Leaving a common area to the use of a particular person, making alterations to the common parts, the extent of the obligation to contribute to the expenses, and the controversy over where the boundaries of the common area run frequently give rise to disagreement among unit owners.
In this briefing note we assess, within the framework of fundamental principles, the legal definition of the concept of the common area, the extent of these areas and the nature of the right of ownership over them, and the rights and obligations of unit owners in respect of these parts.
The Concept of the Common Area and Its Legal Basis
What Is Understood by a Common Area?
A common area denotes those parts of an immovable subject to condominium ownership which lie outside the independent units and which are set aside for the joint use and enjoyment of all the owners. The parts in question are of an indispensable character for the building to remain standing and to be capable of being used and operated.
Among the examples most frequently encountered in practice are the staircases, the lifts, the roof, the foundations, the corridors, the garden and the car park.
The fundamental characteristic identifying these areas is that they belong not to a single unit owner but to the owners as a whole, and that they serve the purpose of common enjoyment.
The Definition and Enumeration in the Statute
The Condominium Ownership Act No. 634 defines common areas as places falling outside the independent units of the main immovable and serving the purpose of common use, protection or benefit. Article 4 of the Act, by enumerating the main walls and foundations, the staircases, the roof, the lifts, the shelters, the corridors and the caretaker’s flats, has expressly recognised these as common areas.
Condominium Ownership Act No. 634, Art. 4 — Common areas
“The subject matter of the common areas may be specified by contract. The places and things written below shall in every case be deemed common areas pursuant to this Act.
a) The foundations and main walls, the beams, columns and shear walls forming the load-bearing system together with the other elements forming part of the load-bearing system, the common walls separating the independent units, the ceilings and floors, the courtyards, the general entrance doors, the entrance halls, the staircases, the lifts, the landings, the corridors and the general lavatories and washbasins situated therein, the caretaker’s flats or rooms, the general laundry and laundry-drying areas, the general coal store and the common garages, the recesses and enclosed parts situated outside the independent units and intended for the protection of the electricity, water and town-gas meters, the boiler rooms, the wells and cisterns, the general water tanks of the building, the shelters,
b) The sewerage installations and refuse chutes outside each unit owner’s own unit, together with the central heating, water, town-gas and electricity installations, the common networks and aerials for telephone, radio and television, the hot-air and cold-air installations,
c) The roofs, the flues, the general roof terraces, the rainwater gutters, the fire escape staircases.
Other places and things which fall outside those enumerated above but which are likewise indispensable for common use, protection or benefit also come within the subject matter of (common areas).”
Even where they are not named individually in the statute, parts which by their nature serve the use of all the owners are likewise deemed common areas. It is also possible for particular parts to be defined as common areas by a provision inserted in the management plan.
The Nature of the Right over Common Areas
Unit owners hold a right of co-ownership in shares over the common areas in proportion to their land shares. This right is an inseparable extension of ownership of the independent unit; it cannot be transferred or sold independently of the independent unit, nor can it be made the subject of a separate disposition.
The natural consequence of this is as follows: when a unit owner transfers his independent unit, his share in the common areas passes to the transferee without the need for any separate transaction. It is not legally possible to establish personal ownership over these areas; equally, a use that would prevent the other owners from enjoying them constitutes unlawfulness.
The Use of Common Areas and the Limits of That Use
Since common areas are set aside for the joint enjoyment of all the owners, their use is subject to particular rules. Although unit owners have a right to enjoy these areas, that right is not unlimited. In the course of use, the rights of the other owners must not be harmed, the purpose for which the common area is allocated must be preserved, and the architectural integrity of the main immovable must not be impaired.
In practice the use of a common area falls into three categories: natural use, for which no permission whatever is required; permitted use, resting on a resolution or an allocation; and unpermitted use (occupation), devoid of any legal basis. Whether a course of conduct is to be regarded as lawful is determined by reference to this distinction.
Natural Use
Natural use is the use of the common areas as an ordinary requirement of daily life, without narrowing the rights of the other owners and in a manner consistent with the purpose of the area. No separate permission need be obtained for a use of this kind.
Making use of the staircase and the lift, using the common garden, using the car park in accordance with the general scheme of use, and carrying on ordinary activities of short duration in the common areas are typical examples falling within this scope.
Uses of this character are assessed within the natural right of enjoyment arising from condominium ownership itself and are lawful.
Permitted Use
In certain cases it is possible for a common area to be left to the use of a particular unit owner. An allocation of this kind, resting on a resolution of the general assembly of unit owners or on a provision of the management plan, is accepted as lawful. There is, however, no transfer of ownership here; what is in question is merely the conferral of a power of use on a particular person.
The examples most frequently encountered in practice may be listed as follows:
- Setting aside car parking spaces for particular owners
- Allocating the garden to the use of a particular flat
- Assigning storage areas to particular owners
- Leaving the common terrace to the use of one unit owner
Unpermitted Use and Occupation
Using a common area in a manner that prevents the other owners from enjoying it, converting it into a personal space, or altering it without obtaining the requisite permission is deemed unlawful interference and occupation. Conduct of this kind constitutes an infringement of the right of co-ownership in shares inherent in condominium ownership.
The forms of unlawful interference frequently encountered in practice are as follows:
- Establishing a permanent installation in a common area
- Leaving belongings or a cupboard permanently in a corridor
- Constructing a structure in the common garden without permission
- Enclosing the area by running wire or a wall around it
- Enclosing the common terrace and converting it into a room
- Annexing a common part to an independent unit
- Closing the area off to the use of the other owners
In these cases the other unit owners, or the manager, acquire the right to claim prevention of the interference and, where the conditions are met, restoration to the former state.
Interference with and Occupation of a Common Area
Using common areas without permission, closing them off, or altering the purpose for which they are allocated are unlawful courses of conduct impairing the other owners’ right of common ownership. Interference does not manifest itself solely in the form of a physical occupation; every course of conduct that narrows the power to enjoy the common area may be assessed within this scope. For this reason the unlawful use of a common area is, in most incidents, made the subject both of a claim for prevention of interference and of a claim for restoration to the former state.
The Concept of Occupation
Occupation of a common area is the establishment by a unit owner or by a third party of factual dominion over that area in a manner that limits the other owners’ power of enjoyment. Occupation may manifest itself in the form of converting the area into a field of personal use, and equally may take place in the form of preventing the other owners from entering or using it.
Leaving belongings in a corridor, enclosing and closing off the common garden, or locking a common part may be cited as examples of conduct of this kind.
Interferences Regarded as Unlawful
Not every use carried on in the common areas is unlawful. Unlawfulness arises in interferences effected without the requisite resolution having been obtained from the general assembly of unit owners, or which impair the rights of the other owners.
In particular, closing off the area, diverting it from the purpose for which it is allocated, or erecting a structure upon it without permission is deemed unlawful interference and may constitute the subject matter of a claim for prevention of interference.
Annexation of a Common Area to an Independent Unit
The annexation of a common area to an independent unit denotes the physical delimitation of the area and its incorporation into the field of use of an independent unit. In the law of condominium ownership this is assessed as one of the gravest manifestations of interference.
Enclosing parts such as a balcony, a terrace, a roof or a garden, or attaching them to an independent unit by adding a structure, directly impairs the other owners’ right of co-ownership in shares and in a great many incidents results in an order for restoration to the former state.
Use Contrary to the Project and the Management Plan
The use of common areas must conform to the architectural project and to the provisions of the management plan. The use of an area outside the purpose determined in the project or in the management plan is therefore accepted as unlawful interference.
In disputes of this kind the architectural project, the management plan and the resolutions of the general assembly of unit owners are taken into account as the principal criteria in establishing unlawfulness.
How the Action for Prevention of Interference Operates
The principal legal instrument securing that an unlawful interference directed at the common areas is brought to a halt and that these parts remain open to the use of all the owners is the action for prevention of interference. Where a common area is occupied without permission, closed off, annexed to an independent unit or its use prevented, this route may be taken in order to protect the right of co-ownership in shares.
The action is in most cases not confined to bringing the interference to a halt; it affords a comprehensive protection extending also to the removal of the alteration made and, where the conditions have arisen, to the making good of the loss caused.
The Legal Nature of the Action
The action for prevention of interference, also known as the action for prevention of trespass, is an action in rem directed at the protection of the right of common ownership and aimed at bringing the unlawful interference to an end. It is not required, for the action to be brought, that a loss should actually have arisen; the existence of an unlawful interference directed at the common area suffices on its own.
For this reason, where a common area has been occupied, its use prevented, or it has been used contrary to its purpose, the unit owners may seek to have the interference halted.
In Which Cases Is the Action Brought?
Where the use of a common area infringes the rights of the other owners, or where the area is used unlawfully, the bringing of an action for prevention of interference is justified.
The situations most frequently encountered in practice are as follows:
- Turning the common area into a store or a personal space
- Enclosing a part by building a wall or running wire around it
- Locking the common area or preventing its use in fact
- Annexing the common part to an independent unit
- Erecting a structure on the common area without permission
- Using the area contrary to the architectural project or the management plan
In these cases the unit owner or the manager may claim that the interference be halted.
The Claim for Restoration to the Former State
Where the physical structure of the common area has been altered as a result of the interference, halting the interference alone is in most cases insufficient. In such a situation the return of the area to the condition it was in before the interference — that is, its restoration to the former state — is sought.
In incidents in which the common area has been closed off, annexed to an independent unit or built upon with a permanent structure in particular, the courts order the dismantling of the part added or altered and the return of the area to its previous condition.
Raising It Together with a Claim for Damages
Where the unit owners have suffered a pecuniary or non-pecuniary loss by reason of the unlawful interference, damages may also be claimed together with the claim for prevention of interference.
The arising of an economic loss because the common area cannot be used, damage to the area, or a fall in the value of the immovable are examples of such claims; in these cases the making good of the loss may be sought from the person who carried out the interference.
Procedure and Management of the Process
In disputes concerning common areas, what is decisive is not only which action is to be brought, but also who may bring it, which court will hear it and which legal facilities are to be availed of during the proceedings. In files in which the interference is continuing in particular, operating the rules of procedure correctly plays a critical role in preventing a loss of rights and in bringing the dispute swiftly to a conclusion.
Persons Entitled to Bring the Action
Actions concerning common areas are as a rule brought by those holding a right over that area. Within this framework the unit owners, the manager and, in particular situations, tenants have the power to bring the action.
Each of the owners may bring the action alone, relying on the power arising from co-ownership in shares; it is not required that the others act jointly with him.
The manager, for his part, has the power under the Condominium Ownership Act No. 634 to bring an action representing the owners in order to protect the common areas, in his capacity as the person responsible for the administration of the main immovable.
As regards tenants, the criterion is the power of use; where they are prevented from enjoying the common area, they may on the basis of that power seek prevention of the interference.
The Court with Subject-Matter and Territorial Jurisdiction
In disputes over common areas, subject-matter jurisdiction lies as a rule with the Civil Court of Peace. Disputes arising from condominium ownership are heard in this court unless a different arrangement is contained in the statute.
As to territorial jurisdiction, the court for the place where the immovable is situated has jurisdiction. Since that jurisdiction is exclusive in character, it cannot be altered by agreement of the parties. Actions concerning common area disputes must accordingly be brought in the place where the immovable is situated.
Interim Injunction
Where the interference is continuing, an interim injunction may be sought with a view to preventing serious losses from arising until the proceedings are concluded. By this route the use of the common area may be halted temporarily, or the existing interference removed.
The cases in which a claim for an injunction acquires particular importance are as follows:
- Construction works having been begun on the common area
- The area being closed off or occupied
- The common area being altered contrary to the architectural project
- Use being prevented in fact
If the court forms the view that the necessary conditions are present, it may order that the interference be halted temporarily before the action is concluded.
Limitation and the Period for Bringing the Action
In actions concerning common areas the regime of time limits varies according to the nature of the claim. As regards claims for prevention of interference and for restoration to the former state, no statute of limitations has as a rule been laid down; the action may be brought for as long as the unlawful interference continues.
Claims for damages, by contrast, are subject to the general limitation regime. In claims for damages founded on tort, the action must as a rule be brought within a period of two years and, in every case, within ten years.
Special periods may moreover have been introduced in respect of certain disputes. For this reason the legal nature of the claim must be determined accurately before recourse is had to the courts.
Enforcement of the Judgment and Restoration to the Former State
The implementation of court judgments concerning common areas is secured, where necessary, by way of enforcement. Judgments concerning the removal of a structure erected unlawfully or the restoration of the area to its former state in particular may be carried out compulsorily through the enforcement office.
If the obligation is not discharged voluntarily once the judgment has become final, enforcement proceedings may be commenced. The enforcement office may, with the support of the police where necessary, secure the removal of the interference and the return of the common area to its previous condition.
In disputes such as the closing off or occupation of a common area or the erection of a structure contrary to the project, the implementation of judgments by way of enforcement is an outcome frequently seen in practice.
Independent Legal Assessment
In common area disputes the element determining the outcome is in most cases not the apparent gravity of the interference but the quality of the documents submitted to the file. Without the architectural project, the constitutive documents of the construction servitude and of condominium ownership, and the management plan being examined together, whether the area in controversy is genuinely a common area cannot be established with any confidence. In practice the reason some actions are dismissed is not the absence of interference but the failure to establish sufficiently that the area is of the character of a common area.
The second important point is the correct construction of the claim. An order for prevention of trespass alone in most cases produces no practical result in files in which the physical alteration is continuing; the claim for restoration to the former state must be raised expressly in the statement of claim. Where construction is continuing, a failure to seek an interim injunction in good time both makes the enforcement of the judgment more difficult and increases its cost.
In a concrete file it will be appropriate to give priority to the following headings:
- Documenting, by means of the project and the land registry records, that the part in dispute is of the character of a common area
- Examining whether any resolution of the general assembly of unit owners and any provision of the management plan constitutes a basis for the interference
- Setting out the claims for prevention of interference and for restoration to the former state separately and expressly in the statement of claim
- Seeking an interim injunction together with the action where construction work is continuing
- Determining, as regards the claim for damages, the moment at which the two-year period began
- Deciding at the outset whether the action is to be brought in the capacity of unit owner or in the capacity of manager
Independent Legal provides advisory services and litigation support throughout the whole of the process in common area disputes arising from condominium ownership, from establishing the interference through to the enforcement of the judgment.