HOA tip: this is how to take a legally valid decision on topping up

The Netherlands faces an immense housing challenge, and ‘optop constructions’ - adding residential floors to existing complexes - are being hailed as an efficient solution. They save building land and often provide opportunities for sustainability and renovation of the existing building. In 2024, therefore, a ‘National Approach to OptoppenNational approach Optoppen’ released, with the aim of encouraging optopping. Yet practice shows that the potential of optopping is far from being realized. The culprit? The decision-making process within the Owners Association (hereinafter: VvE).

Decision to opt out has high threshold

Achieving optics requires a amendment of the subdivision deed. This is necessary because the additional dwellings create new apartment rights, resulting in a permanent change in the factual and property law situation (HR April 7, 2000, ECLI:NL:HR:2000:AA505). In principle, the law requires (article 5:139 BW) for this, unanimity of all apartment owners. As soon as one or a few owners vote against it, the entire project is stranded. Article 5:139(2) BW, which requires a 4/5^e majority allows, unfortunately offers no relief in this regard. Indeed, topping involves an act of disposition that affects property relations.

Substitute authorization as a solution?

The law provides a safety net: the replacement authorisation. If a VvE fails to complete a proposed opt-up plan by a unanimous vote, the court may (under Article 5:140 of the Civil Code) substitute the consent of the refusing owner. This can only be done if the refusal is without reasonable cause.

It is therefore important at the decision-making stage to anticipate the reasonable grounds that may be raised by an opponent. In this way, you are one step ahead of the balancing of interests performed by the judge. Mr. G.E. van Houdt (in TBR 2025/125) categorizes the most common objections that qualify as ‘reasonable cause.

Reasonable grounds for voting against opting out

If you want to maximize the chances of a successful injunction, you need to consider the possible reasonable grounds. You can do this by taking into account the interests of opponents in the plan of the VvE. Consider the following:

1. Preservation of architectural unity. For buildings with special architectural features, a change in appearance may be reasonable grounds for denial. In the design, consider building in the same style or minimize the visual impact. Also remember to consider the possible intellectual property rights of the original architect.
2. Minimize adverse effects. Concerns regarding reduced residential enjoyment (loss of light or views) and privacy breaches by the new homes are common. The design should explicitly consider this to minimize these effects.
3. Anticipate (the fear of) depreciation and nuisance. An owner on the top floor who loses their status because of the uplift may base their refusal on depreciation. Consider financial compensation or offer these residents the first right to buy one of the new top apartments. Fear of additional crowding or less parking due to new residents is also a potential risk.
4. Provide a clear plan with good justification. Not making the proposal sufficiently clear may be a reasonable ground for refusal. Revamping is a complex process, for which a thorough, clearly developed plan, supported by advice from expert parties, can be critical.
5. Create and name mutual benefits. Prevent owners from perceiving that they face only disadvantages. Combine raising the roof with addressing preservation or necessary maintenance, where the costs can be borne in part by the proceeds from the new construction. Consider ensuring that the new roof remains available for future preservation efforts, such as installing solar panels or other installations.

Lack of environmental permit is not reasonable ground for denial

In addition, it is often argued by apartment owners that the lack of an environmental permit would constitute a reasonable ground for refusing to cooperate in topping up. It follows from established case law that this is not the case. Nor does the absence of a resolution of the VvE prevent the request for a substitute authorization to amend the deed in connection with topping up. This follows inter alia from a recent decision of the District Court of The Hague (ECLI:NL:RBDHA:2024:15995).

Among other things, optopping will require permits to be arranged, that is true. However, the lack (yet) of such permits cannot be a reasonable ground for refusal, if opting out is yet to be voted on.

Specialized lawyer VvE law in decision on opting out

A variety of interests must be taken into account when deciding on apartment building upgrades. Apartment owners who refuse to cooperate can cause major delays or block the project. A substitute authorization in court may provide the solution, but careful preparation and legal reasoning are essential for this.

Lexys attorneys have extensive experience in (preventing) VvE disputes and construction law. We can advise you on the decision-making process within CoEs, the amendment of division deeds and the balancing of interests when topping up.