No substitute authorization when property law situation changes

In a late 2024 ruling, the Hague Court of Appeal (ECLI:NL:GHDHA:2024:2205) ruled on the correctness of an order of the district judge in the first instance. In that ruling (ECLI:NL:RBROT:2022:11370) the district judge granted a replacement authorisation for the installation of a roof structure. The court drew a line under this plan: a substitute authorization may be useful when owners within the VvE disagree, but it is not a license to change the property law situation. Lawyer Myrthe de Vries specializes in VvE law and explains how.

Substitute authorization for roof structure

In an apartment building with two apartments, disagreement arose after the owner of the top floor made it known to the lower neighbors that he wanted to build a roof structure. The owner rents his apartment right and indicated that he would like to occupy the apartment with his family in the future. Because his family needs more space, he would like to install a roof structure. He asks the VvE meeting for permission to do so.

The downstairs neighbors vote against it because they doubt the owner's story. According to them, the main purpose of the construction is to create an additional rentable space. The owner then turns to the court to have the VvE's decision overturned and obtain a substitute authorization.

Cantonal judge grants substitute authorization

The Rotterdam District Court ruled that the VvE's decision was taken in violation of the requirements of reasonableness and nullifies the association decision. In addition, the court grants substitute authorization to construct the roof structure.

It is not clear from the decision whether the lower neighbors had already argued at first instance that the roof structure would entail a change in the property law situation, or whether this argument was only made in appeal has been put forward. Either way, it appears to be a strong argument for them.

Court overturns order and rejects substitute authorization

The Hague Court of Appeal must next rule on the case. First of all, the Court decides whether an appeal was filed in time. After all, there is a different deadline for appeal. In conclusion, the Court will not rule on the overturned decision. An appeal against it was not filed in time (to the extent it was intended). The time limit for doing so is one month and it had already expired when the appeal was filed. The Court will, however, consider the issue of substitute authorization on the merits. This is because the appeal period for that is three months and that appeal was filed in time.

Here's how a VvE replacement authorization works

When an owner needs the permission of the CoE for a change, that permission can be replaced by an authorization from the subdistrict court. Such authorization may be granted if the consent is refused without reasonable cause. However, an authorization cannot be granted if the change violates the subdivision deed. Indeed, an authorization replaces the consent of the CoE, but does not amend that deed. A consent decree that conflicts with the subdivision deed is under the law void. In such situations, the subdivision deed to be amended.

The court held that the latter was at issue here. This is because the planned roof structure would create a different layout of the building than that stipulated in the subdivision deed and on the subdivision drawings. The current roof would largely become a floor for the superstructure. There would be a new (fourth) floor with walls, windows, doors and a new roof. These changes are not included in the subdivision deed and drawing.

Substitute authorization to amend subdivision deed

The court of appeals therefore set aside the order of the subdistrict court. Without amending the subdivision deed, the roof structure cannot be realized. Whether the owner subsequently filed a request to amend the subdivision deed is not known.

Lexys Lawyers helps in application for replacement authorization VvE

The VvE lawyer at Lexys can help you request a replacement authorization. We know what is required for a replacement authorization for a roof construction and will tell you when the subdivision deed also needs to be amended. Lexys' real estate lawyers also know how to deal with this. Visit contact at if you want to know more about that.