SCC Case Law on Condominium Ownership

We have published here several noteworthy judgments of the Supreme Court of Cassation (SCC) concerning condominium ownership:

In Judgment No. 47 of 27 March 2014 of the SCC in Civil Case No. 7403/2013, Second Civil Division, Civil Chamber, the following answer was given to the legal issues raised: “The term ‘condominium ownership’ is used both to denote a building that includes separate, self-contained residential and non-residential premises subject to individual rights of ownership, together with common parts co-owned by the same persons who hold those individual rights, and to denote the body of legal relationships comprising individual ownership of separate self-contained units and co-ownership of the common parts of a building. The first meaning is analogous to the term ‘building under the condominium ownership regime’. In the second meaning, the term is used when referring to the establishment or occurrence of condominium ownership, changes in the composition of the condominium owners, termination of condominium ownership, and so forth.

The following legal issue was raised before the SCC and gave rise to the cassation appeal: “whether the roof space constitutes a common part of the building where it has been constructed as an open space between the roof slab above the second floor and the roof structure.”.

The SCC ruled on the matter in Judgment No. 95 of 24 June 2015 of the SCC in Civil Case No. 524/2015, First Civil Division, Civil Chamber, holding that:

“The roof space between the roof slab above the second floor and the roof structure is, by its nature, a common part of the building where attic premises cannot be formed within it. Where its height makes the formation of such premises possible, but no such premises have been constructed, it is a common part by intended use. The clarifications given in item 1 of Interpretative Decision No. 34 of 1 August 1983 of the General Assembly of the Civil Chamber of the Supreme Court are to the same effect.”.

Another useful judgment is Judgment No. 136 of 26 April 2011 of the SCC in Civil Case No. 5115/2008, Fourth Civil Division, Civil Chamber, which held that:

“The caretaker’s apartment is residential premises by its nature, but by its intended use it is a common part and is owned jointly by all condominium owners precisely as a common part. In order to change its character as a common part by intended use and to convert the compulsory and indivisible co-ownership over it into ordinary co-ownership, the consent of all owners is required. Letting the caretaker’s apartment does not change its status as a common part within the meaning of Article 38 of the Property Act. Under Article 37 of the Property Act, floors or parts of floors, together with the rooms appurtenant to them in the attic or basement, may belong to individual citizens, the State, municipalities or other legal entities. The nature of the ownership of the individual units is irrelevant to the regime governing the common parts. Accordingly, where the participants in the condominium ownership are natural persons and the State, the State may not change the intended use of the common parts by a unilateral statement. For the purpose of determining whether premises constitute an independent object of ownership or a common part within the meaning of Article 38 of the Property Act, what matters is the use for which the premises were intended at the time when the condominium ownership arose.”.

Regarding the possibility of acquiring by prescription a common part of a building under the condominium ownership regime, Judgment No. 394 of 22 October 2010 of the SCC in Civil Case No. 185/2010, Second Civil Division, Civil Chamber held that:

“That judgment accepted that there is no prohibition against acquiring such premises by prescription where the possessor owns another unit in the building — an apartment. The present panel shares the position expressed in that judgment concerning the possibility of acquiring, by acquisitive possession, ownership of a unit appurtenant to a dwelling in the same building (within the meaning of Article 37 of the Property Act), insofar as possession is exercised by one dwelling owner against another dwelling owner in the same building. That case-law is, however, inapplicable here, and the cassation court must give judgment pursuant to Article 291, item 3 of the Code of Civil Procedure. It has been established beyond doubt that the appellant exercises factual control over the disputed basement room No. 13 and has objected that he acquired it by prescription through continuous possession for more than ten years. That objection is unfounded because there was no possession within the meaning of Article 68(1) of the Property Act capable of producing the legal consequence of acquisition of ownership under Article 79(1) of that Act. This mode of acquisition requires both elements of possession — the exercise of factual control over the property and the intention to hold it as one’s own — to have been brought to the knowledge of the owner against whom the possessor exercises factual control. That did not occur in this case. The appellant acquired ownership of apartment No. 8 in the same building, together with its appurtenant attic room No. 8 and basement room No. 8, on 19 November 1990. He could therefore have acquired the disputed basement room belonging to another person by prescription only after ten years, on 19 November 2000. Before that date, however, ownership of the apartment to which that basement room belonged according to the architectural plan — a circumstance established beyond doubt by the technical expert report and the plan attached to it, coloured in red — was transferred to the claimant, K. H. K., by Notarial Deed No. 60 of 26 April 2000. The claimant’s predecessor in title had not lost ownership of the basement room appurtenant to his apartment, because the requirements of Article 99 of the Property Act were not met: no other person — in this case the appellant — had acquired it on the ground asserted in these proceedings, namely prescription, at the very least because the required period had not expired and prescription had not been invoked against him. The transaction therefore produced its property-transferring effect, and the transferee K. K. is established as owner of the disputed basement room and brought his action for recovery of possession before the acquisitive prescription period against him had expired. The period during which the appellant exercised possession against the previous owner of the basement room cannot be relied upon against the claimant because the possessor did not expressly invoke the aggregation of that possession in an unequivocal manner capable of bringing it to the owner’s knowledge and producing the legal effects of prescription.

Consequently, reliance on acquisitive possession as a ground for acquiring ownership of basement room No. 13 is unfounded, which supports the same final conclusion that the action for recovery of possession against the appellant is well founded.”.