Replacement authorization in the pocket! But now what?

It all seems pretty straightforward. In fact, the law is quite clear about substitute authorization in the VvE. Because if you are a member of an MoU need to perform an act that requires permission from the meeting, you can get that permission from the court. This is because the law offers the possibility to do so in article 5:121 BW. If you get that authorization from the court, then the permission you needed from the CoE meeting is ‘replaced’ by a court authorization, so to speak. Sounds nice, right? Yet many apartment owners run into a problem after successfully obtaining such an authorization. Lawyer real estate and unions law Robert van Ewijk Discusses what often goes wrong and how to overcome it in practice.

Replacement authorization for maintenance is often insufficient

The law states the following about the replacement authorisation. For readability, the text has been shortened somewhat:

“In all cases where an apartment owner requires cooperation or consent (...), for the performance of a certain act (...), such cooperation or consent (...), may be replaced by an authorization from the district judge (...).”

and:

“Authorization may be granted if cooperation or consent is refused without reasonable cause or the person who is to give it does not declare himself.”

So: for example, if you need to perform maintenance on a common property and you don't get permission to do so, the court can give it instead of the VvE.

But, is that enough? Usually not.

Substitute court approval does not by itself cover the charge

In principle, the court's substitute consent only authorizes you to perform certain acts. However, this does not determine who pays for those actions. This is very often overlooked. An apartment owner then requests only substitute consent, but ‘forgets’ to also request a decision from the court as to who should bear the costs. That possibility also appears explicitly from the law and can be found in paragraph 2 of Article 5:121 BW. So if you include that in your petition, are you there?

Well, actually, still not.

Enforce payment from the VvE after substitute consent

If the court has determined that the VvE (or the owners in some proportion) must pay, then again, you cannot automatically enforce that payment. This requires that the court's ruling determine exactly what the CoE must do, when and under what conditions. If this is not stated clearly enough in the judgment, the bailiff may not be able to execute. Execution involves forcing the VvE (or certain apartment owners) to pay the court ruling comply. This can also be enforced by means of a batter. But if the judgment is not sufficiently clear about what must be paid, when and under what conditions, the bailiff may not be able to work with the judgment.

Specialized lawyer in case of substitute authorization of association

One of the ways in which Lexys lawyers stand out is the way they think. Our lawyers think through. They think about what happens after a judgment or order. What does the client need besides a positive verdict? What should the judgment read to ensure that it not only determines that the client is in the right, but that they can actually achieve their rights?

An order of the Rotterdam District Court dated February 24, 2023 is worth discussing in that context. Although that ruling is already two years old, it was upheld yesterday by the Court of Appeal of The Hague (not yet published). Furthermore, that ruling is a great example of how our lawyers make and think through the difference when drafting litigation documents.

Rotterdam court: clear order to pay in addition to substitute authorization

Indeed, in the proceedings, not only was a substitute authorization requested, but it was also requested to determine that the VvE should pay the costs of the work for which the authorization was requested. Not only that: it was also requested to determine what should be paid and when. In the petition, under the request to grant the authorization is stated:

“(...) with the stipulation that the VvE shall be bound to pay the invoices provided by the executing party within the payment period set by that party, failing which [the applicants] shall be free to pay that invoice themselves and the VvE shall be ordered to pay to [the applicants] instead and for that case all that they have paid to third parties in execution of the aforementioned authorization, (...)”

The court granted that portion of the petition, adopting it virtually 1 to 1:

“determines that the VvE shall be bound to pay the invoices provided by the executing party within the payment period specified by such party, failing which [applicant01] et al. shall be free to pay such invoice themselves and the VvE shall be ordered to pay to [applicant01] et al. instead and for such case, all that they have paid to third parties in execution of the aforementioned authorization;”

In this way, our clients not only have the authorization they wanted, but also an enforceable title to collect the money from the VvE, should it continue to refuse to pay voluntarily. This avoids the need for further proceedings. Do you want to request a substitute authorization and get it right the first time? Then contact up with our specialized VvE lawyer.