Does the roof of the CoE belong to the main or sub-division?

Does the roof of the CoE belong to the main or sub-division?

When you are an apartment owner, you own a piece of property in a larger whole. This also applies to the other owners within your CoE. What you own consists, on the one hand, of the apartment of which you have the exclusive right of use (rather than ownership) and a share in the building's common things. But how do you know which parts of the building are common? And what about if there is a main division and a sub-division? The Arnhem-Leeuwarden Court of Appeal recently faced a similar question. Attorney Myrthe de Vries, who works at Lexys Advocaten in Rotterdam and specializes in VvE and real estate law, discusses the ruling.

The subdivision deed

Whether a portion of a building is common must be answered based on the interpretation of the subdivision deed. Sometimes this is simple and the deed clearly states something like, “the roofs are communal”. Sometimes, however, this is less straightforward. This was the case in which the Arnhem-Leeuwaren Court of Appeal was considering. In the relevant deed of the main division the roofs are not mentioned as common property, while this is common practice. The common parts and common goods are included in the deed: the ground and foundations, the pipes and other collective facilities.

Roofs not common according to the subdivision deed

However, the roofs are also not listed as belonging to the private parts. Discussions therefore arise within the VvE about the commonality of the roofs. And this is very important, because it is usually used to determine who is responsible for the cost of maintenance.

How do you know what is private or common?

According to the Court, the question of whether the roofs of the apartment complex should be regarded as common or private parts must be answered based on an interpretation of the demerger documents. According to established case law, when interpreting division documents, the deed of division and the division drawing must be interpreted with the application of the so-called CLA standard. This means that when interpreting the demerger documents, what matters is the intention expressed in these documents by the person who has proceeded to demerge. This intention must be derived by objective standards from the description in that deed and the drawing attached to it. In doing so, legal certainty must be taken into account. Anyone must be able to determine objectively from the documents recorded in the public registers which parts are private and which parts are common.

Roofs belong to the subdivision

In this case, the trial court ruled that the roofs were not common in the main division, but were in the subdivision. Briefly, the reasoning is that the roofs were not named in the main subdivision as common property. The judgment that the roofs were not common in the main division is supported by the fact that they were named in the deed of sub-division.

What about in your CoE?

So which parts are common and which parts are private must be clear from the demerger documents. Sometimes these documents deviate from each other and then it must be determined which interpretation is the most plausible according to objective standards. Is there a lack of clarity within your VvE about the common and private parts? Do not hesitate to contact the CoE law specialists of Lexys Advocaten.