Replacement authorization after completion of work in a homeowners' association: is that possible?

An apartment owner who, without the permission of the VvE Anyone who has work done on the common areas runs the risk of having to bear the costs themselves. Under certain circumstances, however, it is possible to obtain retroactive approval and recover the costs from the homeowners’ association. Conner Canters is a lawyer. He specializes in homeowners' associations and condominium law, and in this blog post, he explains how it all works.

Maintenance of Common Areas

Within a homeowners' association, apartment owners cannot simply carry out work (or have work done) on the common areas of the building. In the subdivision deed It specifies which parts of the building are considered common areas. In principle, work on, for example, the roof, the facade, and the foundation requires a resolution of the homeowners' association requires authorization for the work in question.

In principle, all apartment owners must contribute to the costs associated with work on the common areas of the HOA building. These costs are allocated according to the ownership share specified in the deed of division. This means that all owners also have a say in the maintenance in question. After all, they are co-owners of the HOA building. Maintenance of the common areas of the HOA building is therefore in the interest of all co-owners. 

What if the homeowners' association refuses to grant permission for necessary maintenance?

In practice, however, this can lead to problems. Sometimes the homeowners’ association refuses to grant permission for work that an apartment owner considers necessary. In that case, the law provides a solution. Pursuant to article 5:121 BW can the cantonal court a replacement authorisation to carry out the relevant work. That authorization is granted if consent is refused without reasonable grounds. The district court’s authorization then takes the place of the required consent from the homeowners’ association. However, the court’s substitute consent does not resolve the matter entirely. It merely grants you permission to perform certain actions. It does not yet determine who bears the costs, in what proportion the costs are to be divided, or how this can be enforced. You can read exactly how this works in this previous blog post.

Retroactive authorization for work that has already been completed is sometimes possible as well!

A decision isn't made in a flash. It takes meeting are scheduled, with all apartment owners being notified. In some cases, a further second meeting must be issued in order to make a legally valid decision. This is the case, for example, when the required quorum is not achieved. The question then is whether consent will be granted by the required majority, thereby resulting in an (approving) decision. If that is not the case, proceedings may be initiated to obtain (substitute) approval from the small claims court. That takes some time, which is sometimes not available.

No time to wait for the meeting decision: Can you get started?

In some cases, maintenance is so urgent that it is not possible to wait for (substitute) authorization. This is the case, for example, when immediate maintenance is required to prevent further damage. In such cases, under certain circumstances, authorization may still be granted retroactively—after the work on the common areas has been completed. This was the case, for example, in a matter before the Midden-Nederland District Court (ECLI:NL:RBMNE:2026:3528).

The fact that a request for substitute consent is made only after the fact does not, in and of itself, preclude the granting of such consent. In the aforementioned ruling, the subdistrict court judge refers to the legislative history of Article 5:121 of the Dutch Civil Code:

“If the petitioner believes that the legal act cannot be further delayed, he or she may carry it out subject to the necessary authorization, which the court may still grant retroactively if necessary.”.

This had already been confirmed earlier by magistrates at the Gelderland District Court (ECLI:NL:RBGEL:2023:3947) and the North Holland District Court (ECLI:NL:RBNHO:2020:389). It follows that, retroactively—after maintenance has been performed on the common areas of the homeowners’ association—a replacement authorization may still be requested. This possibility is evident from the legislative history of Article 5:121 of the Dutch Civil Code.

Retroactive authorization is not without risk

However, requesting authorization retroactively is not without risk. The legislative history also indicates that the petitioner has the discretion to assess whether the maintenance can be further postponed. The legislature has thus granted the petitioner some discretion. This does, however, mean that any adverse consequences of requesting authorization only after the fact are at the petitioner’s own risk and expense.

This is the case, for example, when it is no longer possible to determine, in retrospect, whether the maintenance was necessary, and/or when it is no longer possible to determine, in retrospect, whether the costs of the maintenance were reasonable and necessary.

It is therefore advisable to determine, prior to carrying out the work, whether:

1. the work was necessary,
2. the work could not be delayed, and
3. the costs involved were reasonable and necessary.

The burden of proof in this regard rests with the petitioner. In some cases, such evidence can no longer be obtained once the work has already been performed. 

Requesting a replacement authorization after the fact carries a risk

Under certain circumstances, it is therefore possible to obtain a retroactive substitute authorization for maintenance work that has already been performed. However, this is not without risk. It is advisable to inform the other apartment owners in a timely and thorough manner. Do you have questions about a homeowners’ association matter, such as a request for a substitute authorization? The attorneys at Lexys We would be happy to advise you on the options available.