The Division Plan vs. the Deed of Division: Which One Prevails?

Who owns the attic? Who owns the storage room? These are questions that come up within Owner Associations often lead to conflict. The subdivision deed One person says one thing, the drawing seems to suggest something else, and then a discussion ensues. Frederick Veckeneer is a lawyer who specializes in homeowners' associations and condominium law. In this blog, he explains how the court handles these types of issues and why the subdivision plan is more important than many people realize.

What are splitters?

When a building is subdivided into condominium units, this is done by notarial deed. This deed is accompanied by a drawing: the subdivision plan. Together, they constitute the subdivision documents. These documents specify what is private and what is common. For a precise description of the private areas, the deed may refer to the plan. In practice, this is almost always the case.

The law sets requirements for both documents. For example, it stipulates that Art. 5:111(b) of the Dutch Civil Code that the deed must contain a precise description of the areas designated as private areas. This is done initially in words, but that precision can be further elaborated upon through the drawing. The drawing is therefore not a minor appendix, but a fully-fledged legal document.

Text vs. Breakdown Drawing: A Real-World Example

Suppose a building is divided into four condominium units. The deed of division states the following:

• Condominium Law 1 (ground floor): “A residence with a garden and an attached storage shed, located on the ground floor of the building”
• Condominium Units 2, 3, and 4 (floors): “apartment, located on the [first/second/third] floor, with an accompanying storage room in the building’s attic”

At first glance, the text seems clear: the upper floors have a storage room in the attic. But upon closer inspection, questions may still arise. Nowhere in the deed are these storage rooms further described or defined. And while the ground floor does have a garden with a storage room—the drawing shows a shed next to that garden. Is that shed the storage room? Or does the ground floor also have a right to a storage room in the attic? The text leaves this open. That makes the drawing crucial.

Thick lines are no coincidence

The Regulations for the Implementation of the Land Registry Act of 1994 stipulates that the boundaries of private areas on the subdivision plan must be indicated by a line of “striking thickness.” In practice, this means: thick lines mark off private areas.

The North Holland District Court confirmed this on January 16, 2020 (ECLI:NL:RBNHO:2020:350):

“Article 6(1)(g) [of the 1994 Land Registry Act Implementation Regulation] provides that ‘the boundaries referred to in subparagraph (c) shall, as far as possible, be indicated by an indelible line of conspicuous thickness.’ This means that the boundaries of the private sections are shown with thick lines.”

In the case described above, the apartments themselves were each outlined with thick lines on the drawing—thus clearly indicating their private nature. The attic floor, on the other hand, was completely surrounded by a thin line, just like other common areas in the building. No thick lines demarcated any private areas on the attic level.

Judge Rules: Drawing Is the Deciding Factor

On February 14, 2014, the Supreme Court ruled (ECLI:NL:HR:2014:337) that, in the event of a conflict between a deed and a drawing, neither automatically takes precedence. The court weighs the evidence from both documents, taking into account, among other things, the level of detail and the plausibility of the legal consequences.

In a case such as the one described above, that assessment led to a clear conclusion. The text of the deed was vague: although storage rooms were mentioned, they were not precisely described anywhere or delineated on the drawing. The drawing, on the other hand, was clear and consistent: the attic floor was completely surrounded by a thin line, which, according to the legally prescribed drawing conventions, indicates common ownership. Therefore, the judge ruled that the attic floor must be classified as a common area and that all members of the homeowners’ association—including those on the ground floor—were entitled to shared use of it.

Conclusion

Are you unsure about the interpretation of the deed of division? Or is there a debate within the homeowners’ association about whether a space is private or common? The interpretation of deeds of division requires a tailored approach. The text and drawings must be considered together, and even minor differences in wording or drafting can have significant legal consequences. Please feel free to contact one of our attorneys or legal advisors; we’d be happy to help you assess the subdivision documents and determine your position.