Changing zoning in VvE: what is allowed and what is not?

Changing zoning in VvE: what is allowed and what is not?

With some regularity, owners of apartment rights wish to use their private part other than in accordance with the destination of the apartment. For example, the subdivision deed of the VvE stipulates that the apartment right has the destination office, but the owner wants to use it as a home. Or the subdivision deed states that the apartment right is zoned for retail, but the owner would like to use it as a short-stay apartment or catering establishment. The question is whether that is just possible. Estate planning law attorney Myrthe de Vries explains how this is.

Deviant use VvE: permission meeting sufficient

The model regulations stipulate that every owner and user is obliged to use his private part in accordance with the destination given to it in the deed. In addition, it is often stipulated that different use is only allowed with the consent of the meeting. This means that it can be decided (usually by a simple majority) that an owner may use his private part for a purpose other than the purpose stated in the division deed.

Changing interior of apartment with permission meeting

If this means that the owner must make adjustments in the furnishing of the apartment, for example, so that guests can sleep or eat there, this is also permitted - if approved by the meeting. But, this permission in principle only sees to situations that are temporary. At least to situations that can be easily undone. This does not provide a free pass for the owner to completely convert an apartment intended to be used as office space into a residence.

Change of destination in VvE? Also amend division deed!

When renovations are made and the former office is changed into a dwelling, in which a bedroom, a bathroom, a kitchen and a living room are built, there is a change in the layout that cannot be easily undone. At that point, the subdivision deed may be violated. Even if permission had been given by the meeting for a different use. This is because there is then not only a use that deviates from the destination. It can then be said that the complete destination of the apartment has been changed. And to do that is a amendment of the subdivision deed necessary. An amendment to the subdivision deed can only be made with the cooperation of all owners, after a resolution passed with 80% of the votes, or after obtaining a substitute authorization from the district judge.

Decision to change zoning of apartment right void

In a case in which such a situation arose, the Arnhem Court of Appeal Leeuwarden that the meeting was not allowed to authorize a change in the zoning from the subdivision deed. Indeed, in this case, the meeting had decided that the apartment rights on the first floor were zoned residential, while the apartment rights in the division deed were zoned office. And that was not allowed, according to the Court of Appeal. After all, the meeting was only allowed to decide to give permission for a use that deviates from the zoning, which is something else. Therefore, it was taken VvE decision null and void.

Lawyer for use of apartment in violation of the purpose of the association

In the case before the Court of Appeals, one of the issues was the pure wording of the meeting resolution. If the agenda and minutes had stated that permission was only given for a different use, the resolution (provided there were no other nullities) might have stood. Do you have questions about the zoning of an apartment? Or would you like to know whether the proposed use is permitted or how to decide on it? Then take contact with us.