Blog series on apartments and renovations / Part 1: check the deed of division
The plan seemed to be top-notch
But one of the co-owners said no
Change the deed, avoid a hotchpotch
Ruled the Court of Justice, don’t botch it up
Even if it’s just for … a dormer window
(21 March 2021 World Poetry Day)
If you have renovation plans for your apartment – whether it’s a home, a business or an office – it’s worth checking the deed of division beforehand. Usually the approval of the meeting of homeowners is required for a renovation. Sometimes the deed of division has to be amended in order to be able to renovate.
Approval for renovation
Planning to renovate your apartment? In that case you probably already checked whether you need an environmental permit. And you found a building contractor you are happy to work with or you decided to take on the renovation yourself.
Checking the provisions of the deed of division is a good idea too. In most cases a renovation requires approval from the meeting of homeowners.
Heavier demands on the approval if the division has to be amended
Sometimes this approval is not enough and the deed of division must be amended.
Neither the approval nor the renovation is valid if the renovation has been approved but the division has not been amended.
If the division is amended the decision from the Homeowners Association (HOA) must be taken with the correct number of votes. The deed of division and the law lay down the number of votes required. At most all votes are required. The minimum is 4/5 of all votes, i.e. 80%.
The decision of the Homeowners Association for approving the renovation requires as many votes as the decision of the Homeowners Association for the amendment of the division.
When must the division be amended?
Not every renovation requires an amendment of the division. If the renovation concerns a private area, such as building a storage unit in a private garden, the approval of the meeting is enough.
But if there is an addition, which creates an extra floor, the division must be amended because the contours and the composition of the building change. The division drawing will have to be adjusted too, in order to reflect the new situation adequately.
Amending the division for a roof dormer as well?
Sometimes whether the contours of the building change is not even relevant for deciding whether a division needs amending. The content of the regulation matters too.
This was an issue in two recent rulings of the court of appeals in The Hague. Both cases were about the same building. One of the owners filed the legal suits.
In one case this owner wanted the approval granted by the meeting to place a dormer window on a property to be declared invalid. The owner deemed the division had to be amended. The court of appeals agreed. As the division had not been amended the approval was not valid.
The court of appeals looked at the regulation which mentioned that the window frames and roofs belong to the owners jointly. The placing of a dormer window increased the size of the residential apartment. This also entailed another division of costs. Therefore, the deed of division had to be amended.
Even with a skylight …
The other – parallel – case was similar. The approval for placing two…skylights was declared invalid. Yes, it can be necessary to amend the division, even for the installation of a skylight.
A few specific points:
- Sometimes a new drawing is necessary.
- Some other beneficiaries must grant permission too. At any rate mortgage banks.
- A division permit may be required if the renovation creates an additional dwelling/ dwellings. Every municipality has its own policy.
- The procedural requirements must be met in the meeting in which the approval for the renovation and the amendment of the division are presented. Usually a decision can also be taken outside of a meeting, with the proviso that anyone who can cast a vote agrees with the proposal in writing.
- The amendment must be laid down in a notarial deed, possibly with a drawing. The amendment takes effect when this deed is registered in the Land Registry.
Please feel free to contact me for more information on this topic.
This is part 1 of four blog posts about apartments and renovations.
Click here for part 2.
Click here for part 3.
Click here for part 4.
(Picture: Andrea Davis)