The scope of condominium agreements : practical implications for the notary

Abstract

The Institute of Condominium concerns a number of individuals who own apartments in independent and exclusive ownership; and simultaneously own in common, certain other things such as the stairs or the roof. This state of co-ownership is imposed upon these individuals since the things owned in common serve to complement the use of that particular apartment. However, problems arise when such persons were to lack these rights over the common parts of the building and the enjoyment of their rights over the apartment itself, are as a result negatively affected. The gist of this report is to highlight and delve into those Articles of the Condominium Act which give power to the notary to rule and dictate the Condominium. Whilst the Act in Article 3 stipulates that a number of rules are predetermined and unalterable, there remains a large number of provisions which are subject to the influence of the notary’s drafting. A very brief review of the major theories and doctrines which have left their mark on the development of condominium law are tackled by making reference to Italian scholars. However, the main objective of such report is to bring to light the evergrowing disputes which arise when the condominium section is not meticulously drafted by the notary or when the notary fails to explain clearly to the parties what the Condominium Act itself presumes. Therefore where possible, this report will explore when and why these issues arise by making reference to cases in which arbitration and court proceedings are sought. Apart from underlining the importance of clarifying to the parties, what the Act itself determines to be unalterable, the notary must be wary of those articles which can be derogated from. The main Articles in this regard which are infact tackled in this report are: Article 5 which identifies what the common parts consist of; Article 6(1) which tackles the portion of rights of the condomini; Article 9 which deals with excessive onerous costs or decorative alterations and Article 13 which deals with construction of new structures and airspace above the condominium. By making direct reference to the law found in the Condominium Act and highlighting those provisions which in my opinion and also in the opinion of numerous authors who have expressed their opposition to such provisions, this report hopes to shed light on those legal presumptions for which notaries and laymen should keep an eye out.