Roof terrace

Owner’s Association (VvE): Amend the deed of division when constructing a roof terrace or basement?

Space is scarce in the Netherlands, and people are often looking for ways to expand their current apartment, for example by building a terrace on the roof or converting the crawl space into a fully-fledged basement. However, such renovations will probably require permission from the VVE and possibly even modification of the deed of division. When should you and when shouldn’t you do this?

Permission from the VvE

In principle, a person is free to make changes within the limits of his private area as long as these changes do not put others’ private area or the common space at a disadvantage (5:119 BW). Nevertheless, the model regulations state that any way of alteration, without permission from the VVE is prohibited. In more recent model regulations, the prohibition of additional construction has also been added. In addition, most unbundling regulations stipulate that no changes may be made to the building that alter its architectural appearance or construction. In short, for the vast majority of apartment owners, even in the case of a private section, permission will have to be requested from the VVE for the construction of, for example, a roof terrace or a basement. This may be different if model regulations are not used or if deviating provisions are included. Of course, permission must always be obtained for changes to common areas. Incidentally, it should be noted that an environmental permit (formerly a building permit) will often first have to be applied for from the municipality before the VVE want to grant its permission.

Amendment of splitting deed

As soon as permission has been obtained for the conversion, the next question is whether an amendment to the deed of division is required. The main rule is that if the conversion is within the boundaries of the private area, no amendment of the deed of division is required. If, on the other hand, construction takes place outside the boundaries of the private section, the deed of division does in principle have to be amended. It is important here to realise that normally all parts of an apartment complex that are not precisely defined in the demerger deed as being a private part belong to the common area. The following will describe how these rules work out in practice when constructing a roof terrace or basement.

Roof terrace placement

If an apartment owner is allowed to include the roof on his apartment in his private area, the deed of division will not have to be changed at the moment he wishes to place a roof terrace on that roof. However, even in the case that this roof belongs (partly) to the common parts, an amendment of the demerger deed is not necessarily required. The Supreme Court has ruled that if an amendment lends itself to restoration, an amendment of the demerger deed is not necessarily required. When a roof terrace is installed, it is generally assumed that this situation can be reversed fairly easily.

The bottom line therefore is, that the construction of a roof terrace does not quickly require a modification of the demerger deed. Nevertheless, it may be wise to include the construction of the roof terrace in the demerger deed. In this way, the builder can obtain a transferable exclusive right of use, while it can also be arranged that the VVE is no longer jointly responsible for the maintenance of the roof terrace.

Excavated crawl space/cellar

What if an apartment owner on the ground floor decides to dig out the crawl space under his apartment and turns it into a fully-fledged basement? Crawl spaces are usually not included in the deed of division. This new cellar therefore falls outside the private boundaries and this means that it belongs to the common parts. The construction of a new space such as a cellar can also be regarded as a structural change of a non-temporary nature. Therefore, if this apartment owner wishes to obtain the exclusive right of use of the cellar, the deed of division will have to be amended. In the situation that an apartment owner wishes to deepen his existing basement, in principle no amendment to the deed of division will be required provided that the original basement was already included in the deed of division as his private part.

Conclusion

If a model regulation is used, permission from the VVE is almost always required for the construction or substructure of a roof terrace or basement. Whether or not it is necessary to amend the deed of division depends on whether the boundaries of the private area are violated. If so, the next question is whether the change is of a structural nature. If this is not the case, no amendment of the deed of division will be required. Nevertheless, there may be good reasons for both the apartment owner concerned and the VVE to want to include the change in the demerger deed, but this does not constitute an obligation in that case.

 

Are you still in doubt as to whether an amendment to the deed of division is required, or do you have other questions in connection with this article? Please do not hesitate to contact us.

 

Lawyer Ginio Beij (beij@m2advocaten.nl)

 

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