Owner in the wrong with deadline for setting aside VvE resolution

Owner in the wrong with deadline for setting aside VvE resolution

It goes wrong very often. In fact, many VvE members invariably wait for the minutes of the meeting. They think that only then does the deadline for requesting the annulment of the resolutions passed begin to run. Many VvE members went wrong as a result. According to lawyer Robert van Ewijk, specializing in VvE law, that is a waste and unnecessary. The deadline for seeking annulment is in the law. How that deadline should be interpreted is crystallized in case law. And: when in doubt do not overtake, the adage goes. If you are not sure, stick to the one-month deadline.

Deadline to set aside VvE resolution begins to run if...

At Article 5:130 paragraph 2 BW state:

“The application for annulment must be made within one month of the day on which the applicant learned or could have learned of the decision.”

There are three elements there:

1. a period of one month;
2. which begins to run when the applicant learns of the decision;
3. Either that begins to run at the time the applicant of the decision “has been able to take note”.

And so that is where things often go wrong. If you wait for the minutes of the meeting and assume that you are still in time one month after receiving them, you ignore the third element of article 5:130 paragraph 2 of the Civil Code. This states that the time limit also starts to run at the moment that you have knowledge of the meeting. could have taking the decision.

Owner awaiting minutes may be too late

For example, the Court of Appeal of The Hague in 2006 (ECLI:NL:GHSGR:2006:466) that a number of owners were late with their request. They requested the annulment of a resolution of the CoE and did so within a month of receiving the minutes of the meeting. However, they could have been aware of the content of the resolution earlier. Importantly, the owners in question were themselves the ones who had requested that the VvE put certain resolutions on the agenda. They were aware that these items would be discussed at the November 25, 2004 meeting. Indeed, they received the invitation to the meeting containing the agenda where the item in question was on the agenda. At the meeting, however, they did not appear. Instead, they waited for the minutes. They received those on December 8, 2004. The petition is dated December 30, 2004.

Owner who waited minutes inadmissible

Too late, the Court of Appeals found. The owners knew what decision was on the agenda. Thus, they could have learned of the decision at the meeting or immediately thereafter. There was no need to wait for the minutes. This was all the more true in this case, since it was only possible to vote for or against the resolution. Furthermore, the Court of Appeal ruled that the owners in question could have obtained information from the VvE after the meeting in order to find out about the resolution. They failed to do so. The owners were therefore rightly declared inadmissible by the subdistrict court, according to the Court of Appeal.

Can an association member be expected to take an active attitude?

The Arnhem-Leeuwarden Court of Appeal in 2018 (ECLI:NL:GHARL:2018:2984) even explicitly ruled that a VvE member can be expected to take an active attitude. In fact, according to the Court of Appeal, there is a duty of discernment, which includes the following:

“5.7 The court of appeal is also of the opinion that the interest of owners to know as soon as possible whether a decision taken is valid or not implies that an owner/member of a VvE may generally be expected, if he/she cannot or does not want to be present at the meeting, (...), to ascertain as soon as possible about decisions taken, so that the said period may indeed begin on the day of the meeting or at the earliest thereafter.”

In the specific case before it, the Court of Appeals found that the applicant himself chose not to be present and not to send an agent, and it should therefore have been expected to have informed him of the content of the decision.

Supreme Court nuances when annulment period begins

Although the Supreme Court agreed with the Court of Appeals that there is a duty of diligence, the opinion took the Supreme Court just a bit too far in other respects. In its June 21, 2019 ruling (ECLI:NL:HR:2019:1022) was thus nuanced on that. In its judgment of that date, it ruled that the element of ‘having been able to take cognizance’ from Article 5:130(2) of the Civil Code, implies that the owner in question must have reasonably should have been able to take cognizance of it. This follows from the parliamentary history of that provision of the law. The moment at which someone could reasonably have taken cognizance of a decision is then not simply the day after the meeting. Incidentally, I am of the opinion that this was the case in the Hague case, given the facts at issue there. According to the Supreme Court, that moment depends on the circumstances of the case.

Time when owner could reasonably have known

In this regard, much weight is given to the customs within the CoE. For example, if it is common practice within a VvE for a decision list or minutes to be circulated, an owner who was not present at the meeting may wait for those minutes. The moment when that owner could reasonably take cognizance of the resolution within the meaning of Article 5:130(2) of the DCC is then the moment when the minutes or resolution list are circulated. However, if there is no such use, then the aforementioned duty of care does apply. The owner can then be expected:

“(...) that he makes an effort to learn about the decisions taken shortly after the meeting. In that case, the apartment owner may in principle be expected to seek information about those resolutions within a week after the meeting. The period of one month mentioned in Article 5:130 paragraph 2 of the Civil Code then begins to run at the latest on the day after the end of that week. In that case, the apartment owner bears the burden of proof of facts and circumstances from which it follows that he could not reasonably have learned of the resolution in question within one week after the meeting.”

Again, there is an exception to both of these rules formulated by the Supreme Court. For if the owner already takes actual cognizance of the resolution before receiving the minutes or before the expiration of the one-week period following the meeting, then the annulment period already begins to run at that time. The moment of actual knowledge is then before the moment when the owner could reasonably have taken note of the resolution.

So the destruction period begins to run the moment....?

In my opinion, the Supreme Court has not made it very much clearer. The rigid rule as formulated by the Hague Court of Appeals is easier to handle. Moreover, there is also a safety net in that rule in case the owner does not have prior knowledge could making the decision. The one-week period introduced by the Supreme Court is neither in the law nor does it follow from it. In addition, the ruling also does not clarify when there is then a ‘use’ such that it determines when the annulment period begins to run.

When is there a ‘use’ that determines the start of the destruction period?

In my opinion, there will have to be a consistent line of conduct, for example that the minutes are always drawn up and distributed within a certain period of time. If it must be judged that there is no such consistent line of conduct, then the duty to inform does exist. According to the Supreme Court, one week is a reasonable period to ascertain the content of the decision. But note: if you ascertain within one day and the board immediately notifies you, the annulment period thus already begins at that moment. If the board does it later than within that week, then it is a matter of explanation when the annulment period then began to run.

Application of Supreme Court rule demonstrates confusion

Shortly after the Supreme Court's ruling, on September 16, 2019 (ECLI:NL:RBAMS:2019:6800) issued a ruling. The VvE blamed an owner for knowing that the decision would be discussed at the November 26, 2018 meeting. Therefore, he should have ascertained immediately afterwards what had been decided, the VvE said. The court does not go along with this. The latter considers that the owner was informed on February 18, 2019 that the minutes had been made available online. According to the court, the deadline started to run at that time. The court considered:

“8. The practice of this VVE is that the minutes are made public through the internet portal. [the applicant] was informed on February 18, 2019 that the minutes of the November 26, 2018 meeting had been made available to her on the portal. That is when the 30-day period began to run. [the applicant] thus timely requested the annulment.”

This is wrong for a number of reasons. First of all, the law has no “term of 30 days”. The law speaks of a month. A month can be 28, 29, 30 or 31 days. In addition, the court ignored in the judgment that there must be a ‘custom’ within the CoE. While it did state that the practice was for the minutes to be disclosed through a portal, it is not clear from the facts stated in the order whether that usage was perpetual, whether that disclosure was always within the same time frame, and so on. In addition, accepting the start of the annulment period almost 3 months after the decision was made violates the rationale of Article 5:130(2) of the Civil Code. Namely, this consists in the fact that owners must know within a foreseeable period of time whether the decisions taken can still be attacked, or not.

Lawyer for annulment of association decision

In my practice, we invariably advise making sure that a application for annulment of an association decision, is filed within one month of the day it was taken. Even if exceeding that period is excusable, you may avoid a discussion about admissibility. The outcome of that discussion may be that it is ‘game over’ for you as the applicant. Moreover, it leads to additional costs. However, the Supreme Court's guideline can offer a solution if you actually learn of the decision too late and could not have learned of it earlier. The request for annulment can even still be timely if more than a month has passed since the week of your obligation to inform. However, the Supreme Court ruled that the applicant must prove why he or she could not have learned of the decision earlier.