Be keen when reading (and drafting) subdivision deed of VvE

Be keen when reading (and drafting) subdivision deed of VvE

It goes without saying, of course, that you have to take the deed of division of an association should read carefully. And then hopefully that deed is sharply and cleanly worded. Especially if you want to know what is or is not allowed in the building. That's actually true of everything in the legal world. If not worded cleanly or read too quickly, things can go wrong. Just this week, for example, my office colleague Myrthe de Vries wrote a blog in which she explained what happened in a VvE in which permission was given for the ‘change the destination‘. That produced a void association decision on. If the VvE had decided to give permission for ‘a use different from the zoning,’ it might have been valid. So the precise wording of a text is essential. Myrthe's blog can help you here reading. I myself came across a subdivision deed with some - presumably unintentional - sloppiness, which could lead to strange explanations. I don't want to withhold it from you.

Professional prostitution prohibited in CoE

One of the things I noticed was that the subdivision deed says the following:

“Professional prostitution is not allowed”

I then immediately wondered: what about prostitution that is not professional. Is that allowed? And what if it is not the practitioner's profession, but incidental (non-professional) work (or rather: activities) for which then perhaps an (expense) allowance is received? Where the boundary lies, the subdivision deed does not tell. It would therefore have been more logical to leave out the addition ‘professional’. Or to stay closer to the model regulations, which talk more generally about a prohibition on ‘professional eroticism’. That is probably what is meant, but that is not how it is written.

Formulation of noise ban

In that same deed, I came across some provisions about noise pollution a few lines further. Typically, causing noise pollution in a subdivision deed is banned. In the deed that was on my desk, it went a little differently. In fact, it provides an opening to allow noise pollution. In fact, that deed states:

“Noise is prohibited, subject to rules to be established by the meeting.”

In fairness to me, I did omit some text from the quote for readability. What concerns me is the following. This says, first of all and in principle, a prohibition against causing noise pollution. To that extent, this act goes well. However, I infer from the part of the text after the comma, that the assembly can make rules by which the generation of noise is suddenly permitted.

Text deed and intent do not match

And if you look at the two different definitions of the word ‘retained’ as the Dikke van Dale that gives, then you can assign another meaning to that provision. I assume this was not the intention. For why should the assembly have the power to make rules about the cause of nuisance? Would it not have been better to provide that the assembly would have the power to make rules on - for example - “the production of sound”? Or about the “preventing noise pollution”? After all, that's what's different.

Dots and commas in subdivision deed

Finally, a word about periods and commas. Most lawyers do know the importance of well-placed periods a commas. A classic (English) joke is about grandpa and dinner. Although the difference in the lines consists of only one comma, the next two sentences have diametrically different meanings:

“Let's eat, grandpa.”

and:

“Let's eat grandpa.”

In the context in which that sentence is said or written, you can usually understand what is meant. If the plates are empty, then Grandpa may be meant to be eaten because otherwise the rest of the family will go hungry. If the plates are filled and Grandpa is at the table, then a comma belongs in the text and Grandpa may just eat with them. When I read the act discussed here, I was reminded of this classic. In it there was also a point forgotten, and in an essential place.

Set rules only if musical instruments are played

Because of that forgotten point, the meeting was in fact allowed only set rules and conditions about noise pollution, if musical instruments are played or sound equipment is used. If not, setting the rules in question is apparently not allowed. In fact, the deed states:

“The meeting may set rules and conditions on noise pollution if musical instruments are played or sound equipment is used, (...)” 

Thus, if we interpret the subdivision deed literally, those rules may not be made if there is no question of playing musical instruments or using sound equipment. Presumably there is a forgotten point between the words ‘noise pollution’ and ‘if.

Rules about non-professional prostitution and musical instrument...?

What about noise pollution caused by non-professional prostitution, under the condition that sound equipment is used or instruments are played? Is that then prohibited outright, or is it still allowed with the consent of the assembly? We may never know, but according to the Supreme Court we do have to interpret the subdivision deed literally to some extent.

Explanation of VvE division deed

In the cases discussed above, in my opinion these are obvious errors and in practice the soup (with or without Grandpa) will not be eaten as hot (with or without Grandpa) as it is served. Nevertheless, I believe that such errors should be avoided as much as possible. After all, what if the different meanings of a sentence or provision in the deed both make or could make sense? Then you can litigate all the way to the Supreme Court (and back) to find out exactly what was meant. So much for my musings on a Wednesday afternoon.