Common or private: when in doubt, the CoE decides. Or doesn't it?

Common or private: when in doubt, the CoE decides. Or doesn't it?

The subdivision deed of the association of owners (VvE) determines what is common and what is private. In the model regulations used from 1972 to 2017, there is a provision on what to do if there is any doubt about it. If there is any doubt, the meeting of the VvE decides, according to those model regulations. In fact, they contain a provision such as:

“If there is any doubt as to whether an item belongs to the common parts or common property, it shall be decided by the meeting.”

That provision is also referred to as ‘the doubt provision. In practice, this doubt clause is regularly applied. As a result, matters that are actually common are considered private by the meeting. But is this actually possible? And if not: what does this mean for the validity of the doubt clause? VvE lawyer Robert van Ewijk explains.

Explanation of division regulations

Since mid-2013, there has been a lot of case law on how to interpret the deed of subdivision of a VvE. Many of those rulings dealt with the question of whether it is permissible to use an apartment destined for residential use, to rent out on Airbnb. However, that case law is relevant, because it formulates a rule on how the deed of division and the rules of the VvE should be interpreted. The Supreme Court has also ruled on this a few times since then.

Doubt provision in model regulations superseded by case law

In its rulings, the Supreme Court explained how the subdivision regulations should be interpreted. Namely as follows:

“In interpreting them, it comes down to the intention expressed therein by the person who made the division. This intention must be derived according to objective standards from the description in that deed of the various parts of the building and from the drawing attached thereto, viewed in the light of the entire contents of the deed and the drawing.
Legal certainty requires that, in order to determine what belongs to the private and common parts respectively, only information which is known to third parties from or from the division documents entered in the public registers may be taken into account.”

Very briefly summarized (in fact, the Supreme Court adds another thing): if there is any doubt as to whether something is common or private, one must look at the entire division deed and the wording used therein. This is how to determine whether something is common or private. So that means that the answer to the question of what is common or private must appear from the deed itself. The meeting is not in charge of that.

Application of doubt clause results in void VvE decision

If it follows from that interpretation of the subdivision regulations that something is common, then is that so. And vice versa, if it follows from that interpretation that it is not common, then it is so. The result is that if the doubt article is applied (3 MR 1972 and 1973, 10 MR1983 and 1992 or 18 MR2006), then the decision has no legal effect. After all: the decision is or in line with what follows from the interpretation prescribed by the Supreme Court (and then it was already common or not, no decision was needed for that), or the resolution is in conflict with it, and therefore in conflict with the subdivision deed. And a resolution that violates the subdivision deed provides a void association decision on.

Doubt provision a dead letter and not revisited in latest Model Regulations

Therefore, in recent years there has been agreement in both case law and literature that the doubt articles are a dead letter. See, for example, a ruling by the Overijssel court from 2019. This is also the reason why the doubt article did not return in MR 2017. Instead, it included a provision stipulating how the deed should be interpreted in case of doubt as to whether something is private or common. Unsurprisingly, that provision (see Section 22 MR 2017) contains virtually the same wording as Supreme Court rulings that post MR1992 and MR2006.

Doubt about explanation of VvE regulations?

In other words, I strongly advise against letting the meeting decide whether something is common or private. It is better to seek good legal advice on that, or to take the question to court. After all, application of the doubt clause is not a solution. Want to know more? Then take contact with the VvE specialist at Lexys Lawyers.