Judge mistakenly allows void second meeting VvE

On November 1, 2024 (ECLI:NL:RBROT:2024:11457) made a ruling that I believe was unjustified. There were several elements at play in that case, but the one that stood out for me was the so-called ’second meeting’ that the administrator had organized. The VvE administrator did so without actually holding a first meeting first. The court allowed this because this “the usual state of affairs” would be in the CoE in question and because up to the course of action “At a meeting in 2018, it was decided”. These are not good arguments in my opinion. Of course, something that is wrong does not suddenly become right just because you always do it wrong. I will explain in this blog what I mean by that. I will also explain why the administrator's course of action is wrong. My conclusion is that the court's ruling is definitely not worth following. However, there are other solutions.

By Robert van Ewijk, VvE lawyer.

The CoE and the second meeting: here's how it works

There are many owners' associations (CoE) where it proves impossible to get enough owners together at the periodic CoE meeting. In the model regulations stipulates that legally valid resolutions can only be passed if a certain number of votes are present or represented. This is also called the quorum. If that quorum is not met, legally valid resolutions cannot be passed and everyone can go back home. There is a solution for this. If insufficient votes show up at the meeting, the board may organize another meeting. At that second meeting legal acts are taken regardless of the number of votes present.

BoE manager sometimes abuses provision on second BoE meeting

For professional trustees, this arrangement prescribed by the model bylaws is often a thorn in their side. They know (or think they know) in advance that there will not be enough votes at the first meeting. To avoid having to meet twice, or to make sure things go ‘right’ in one go, some trustees urge members to avoid coming to the first meeting precisely so that a second meeting can be organized immediately.

Convocation is not ‘summoning’

This is precisely where things go wrong. This is because the model bylaws include the requirement that members must be notified before the (first) meeting “summoned”. Asking the members of the VvE not to appear is not a summons. This is how the Breda District Court ruled back in 1987 (ECLI:NL:RBBRE:1987:AD0038) that the interests of the members of the CoE mean that a second meeting can only be held “if notice of that meeting was not given until after it was established at the first meeting that a quorum was not present was.”

Second meeting after administrative first CoE meeting

Thus, the way the second meeting was subsequently organized in the Rotterdam case violated the rules. It can be debated whether that then leads to voidable or null and void decisions at that second meeting. In my opinion, the latter applies. This is because the second meeting is not a meeting within the meaning of the rules. True, there was a meeting, but the notice to convene it was not in accordance with the rules so it was not formally a meeting. It could still be that a quorum was present at the second meeting, which would (possibly) make the resolutions valid, but if there was not a quorum, the resolutions would simply be null and void.

Why did the court allow the ‘administrative meeting’?

In its ruling, the Rotterdam court said that the way the administrator organized the second meeting would be valid. Because, the court states:

“2.9. (…) [the CoE] argued at the hearing, uncontested, that at a meeting in 2018 it was decided to call an administrative meeting first from now on, because the experience was that there were never enough votes at the first meeting to make legally valid decisions. Since this decision in 2018, this has also been the usual practice. [the applicant] has also not disputed that Twinss VvE Beheer sent the exact same letters of invitation to the first and second meetings from 2020 onwards as the March 4 and March 20, 2024 letters. [applicant] never complained about this course of action.

and the court then concluded:

In my opinion, this reasoning is incorrect. In fact, for the first meeting, the members are not actually summoned. It is an administrative meeting. Administrative, because it is apparently only intended to satisfy the formalities to be able to hold a second meeting. Wrongly so: after all, the formalities were precisely not met. Therefore, the fact that it was decided earlier to act in violation of the subdivision deed should not benefit the VvE. A void resolution does not legitimize a void course of action. After all, not only is the decision to do so void (and the VvE cannot derive any rights from it), but the course of action does not suddenly become valid as a result. This would require amending the regulations as stated in the division deed.

How can administrators deal with low attendance though?

One solution could be, for example, that the notice of the first meeting does mention the time for the possible second meeting. In its judgment of July 14, 2006 (ECLI:NL:HR:2006:AX3225) provides that a conditional invitation is not absolutely prohibited. However, this does not affect the fact that a second meeting cannot be called before it has been established that there is an insufficient quorum at the first meeting. That first meeting must then actually take place. And if that does not happen because it has been requested not to appear at the meeting, then there was no notice. The second meeting is then in fact only the first meeting. And so the administrator shoots himself in his own foot. He then stays busy. After the second meeting, a third meeting must be organized. That is only the second meeting referred to in the regulations.

Lawyer's advice in case of low VvE meeting attendance

To the best of my knowledge, no appeal set. I express the hope that administrators who (formerly) acted like the administrator in the Rotterdam case will adjust their conduct and not take this (erroneous) ruling as an example. Perhaps the tips in the previous paragraph may be helpful in this regard. Another thing that always works well is providing free bitterballen. In my experience, that does wonders for attendance.

Note: the Amsterdam court on July 1, 2025 rendered a judgment in which decisions were overturned because the second meeting took place at the administrator's office. This was not allowed, the subdistrict court found. The subdivision deed requires that meetings must take place in the municipality where the building is located. And the administrator was located in another municipality. My blog about that ruling you can read here.