Are loggias, balconies and terraces common parts of an apartment building?

Are loggias, balconies and terraces common parts of an apartment building?

Introduction

The impetus for writing this article is typical cases of disputes in apartment buildings caused by the intention to modify or reconstruct parts of the house, which directly affect the owners of the apartment units in the building.

The first case is the insulation of the facade of an apartment building, which also includes balconies and loggias accessible from one apartment. When the facade and the walls surrounding the loggia are insulated, the area of ​​the loggia is reduced. Even with the use of modern insulating materials with high thermal insulation efficiency, the area will be reduced by a few centimeters. This is usually unacceptable to apartment owners.

The second case is the reconstruction of the terrace of an apartment building, which is accessible only from one apartment and which is also a roof, either over the common part or over the apartment, the same one from which access to the terrace is available, or another. During the reconstruction of such a terrace, the structure is interfered with, which makes it impossible for the owner of the apartment to use the terrace. There may be disputes regarding the financing of the reconstruction, which is caused, for example, by the life of the waterproofing and leaks.

In all cases, the building activity in the immediate vicinity of the units disturbs the apartment owners and may reduce security in terms of entry by unauthorized persons.

Definition of common parts according to law

New Civil Code (NOZ) No. 89/2012 Coll., or Government Regulation No. 366/2013 Coll., to which NOZ refers, generally defines and also enumerates common parts in houses. In addition to supporting structures, insulation, various technical devices, it explicitly determines that common areas are balconies, loggias, terraces, atria, even if they are accessible only from the apartment and are for the exclusive use of the owner of the unit:

Act No. 89/2012 Coll. – New Civil Code

§ 1160(1) Common are at least those parts of immovable property which, according to their nature, are intended to serve the owners of the units together. (2) Common are always the land on which the house was built, or real property the right that gives unit owners the right to have a house on the land, building parts essential for the preservation of the house, including its main constructions, and its shape and appearance, as well as for the preservation of the apartment of another unit owner, and equipment that also serves another unit owner for the use of the apartment. This also applies if a certain part is left to a unit owner for exclusive use.

The link to the implementing regulation (Government Regulation No. 366/2013 Coll.), which further defines the common parts of the house, is in the new Civil Code in section 1222:

§ 1222 The implementing legislation determines how the floor area of ​​the apartment in the unit is calculated, which parts of the immovable property are considered to be common, and details of the activities related to the management of the house and land.

NV No. 366/2013 Coll.

§ 5(1) Common parts of the house, as parts essential for the preservation of the house including its main structures and its shape and appearance, as well as for the preservation of the apartment of another owner unit, and facilities that also serve another owner of the unit to use the apartment according to § 1160 paragraph 2 of the Civil Code, are in particular f) balconies, loggias, terraces, atria, even if they are only accessible from the apartment, doors from balconies, loggias and terraces ; these common parts, if they are only accessible from the apartment, are always in the exclusive use of the owner of the respective unit,

Full quote (1)

The article was reviewed by Mgr. Jan Eisenreich from the Ladislav Drha law firm, which offers specialized legal advice for unit owners' associations (SVJ) and bytová družstva.www.svjpravnik.cz

However, the above only applies to houses where the transfer of the first unit took place no earlier than on the effective date of the NOZ, i.e. January 1, 2014. In the case of houses where the transfer of the first unit took place before this effective date, the previously effective legal regulation applies, simply put. and that is the Act on Ownership of Flats No. 72/1994. This follows from section 3063 of the new Civil Code. Many members of the community bodies are unaware of this fact and declare the loggias of the old block of flats to be a common part.

Act No. 89/2012 Coll. – New Civil Code

§ 3063 If ​​the acquirer acquired ownership rights to at least one unit in a building with apartments and non-residential premises before the date of entry into force of this Act, pursuant to Act No. 72/1994 Coll., which regulates certain co-ownership relations to buildings and some ownership relations to apartments and non-residential premises and supplement some laws (Act on Ownership of Apartments), as amended, the ownership right to other units in this building will arise even after the date of entry into force of this Act according to existing legal regulations.

However, the Home Ownership Act defines common parts differently. He enumerates them, but states that they must always be spaces intended for joint use. It should be noted that common parts are defined very vaguely in this law, for a layman the list with the note that these are parts of the house intended for common use can be very confusing:

Act No. 72/1994 Coll. – Act on the ownership of flats

General provisions § 2 Definition of terms For the purposes of this Act, g) common parts of the house are understood as parts of the house intended for common use, especially foundations, roof, main vertical and horizontal structures, entrances, staircases, corridors, balconies, terraces, laundries, dryers, carriage houses, boiler rooms, chimneys, heat exchangers, heat distribution, hot and cold water distribution, sewage, gas, electricity, air conditioning, elevators, lightning rods, common antennas, even if they are located outside the house; furthermore, the common parts of the house are considered to be the accessories of the house (for example, small buildings) and the common equipment of the house (for example, the equipment of the common laundry room)

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The accessories of the house from the previous quote were defined by the "old" Civil Code as follows:

Act No. 40/1964 Coll. – Civil Code

§ 121(1) Accessories of a thing are things that belong to the owner of the main thing and are intended by him to be used permanently with the main thing.

Act on Ownership of Flats No. 72/1994 stipulated that ownership relationships established before the Act came into force be brought into line with the Act:

Act No. 72/1994 Coll. – Act on Ownership of Flats

Common and Transitional Provisions § 31(1) If this Act does not provide otherwise, the provisions of this Act also govern legal relationships that arose before its effectiveness according to the existing regulations on ownership of flats. However, the emergence of these legal relationships and the claims arising from them before the effective date of this Act are assessed according to the existing regulations on ownership of apartments. effective date of this Act, they are considered to be the owners of the units according to this Act and are obliged to bring all legal relations to the units, common parts of the house and the land into compliance with this Act within one year from the effective date of this Act.

Ownership relationships, descriptions of units and common parts must be defined in the so-called declaration of the building owner:

Act No. 72/1994 Coll. – Apartment Ownership Act

§ 4 Declaration of the building owner (1) The building owner, by means of his declaration (hereinafter referred to as the "declaration"), determines the spatially defined parts of the building which, under the conditions set by this Act and in accordance with the construction purpose, will become units [§ 2 letter h)] and common parts of the house [§ 2 letter G)]. The declaration must be in writing. The declaration is a mandatory attachment to the proposal for permission to deposit the ownership right in the real estate cadastre based on the contract for the transfer of the first unit in the house. (2) The declaration according to paragraph 1 must contain b) a description of the units, their accessories, the floor area and a description of their equipment, c) the determination of common parts of the building that will be common to the owners of all units and determination of the common parts of the building that will be common to the owners of only some units, (3) Floor plans of all floors, or their diagrams, specifying the location of the units and common parts of the house, with data on the floor areas of units.

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The criterion is the effective date of the NOZ 1/1/2014

From the cited citations and references, it follows that two regulations currently regulate the ownership relations and common parts of all apartment buildings co-owned by unit owners: the new civil Code (No. 89/2012 Coll.) in the case of houses where the first apartment was sold no earlier than 1/1/2014, and the Act on Ownership of Apartments (No. 72/1994 Coll.) where the first apartment was sold before this date.

The new Civil Code for new houses has removed a lot of ambiguity and conjecture. According to NOZ, all terraces, loggias, balconies, etc. are common parts. Only if there is access to them from only one unit, they are intended for exclusive use. However, this cannot block any necessary interventions in structures if their repair is needed, or if they are to be affected by the modification of other structures, if necessary and the intervention is approved by the assembly of owners in accordance with the applicable statutes. Thanks to NOZ, it is possible to eliminate accidents and the consequences of natural events without the need for complex communication and negotiations with the owner of the unit, etc.

Solving specific cases for new houses according to the NOZ

If we return to our cases described at the beginning of the article, the situation is clear for new houses that are dealt with by the new Civil Code. If there is a need to insulate a house with balconies and loggias, or if a different modification of the facade needs to be carried out (due to the age of the house, the need for insulation is unlikely), the common part is always affected. Therefore, the reduction of the balcony and loggia cannot be a subject of dispute in technically justified and urgent cases. However, if intervention in the common part intended for exclusive use is not technically necessary or urgent, it is of course up to the agreement between the co-owners how to intervene in the part with regard to the comfort of its user.

In the second case, the situation is even simpler. If the terrace, which is in the exclusive use of the unit owner, flows into another unit or a common area, you can proceed with immediate repairs without fear, which may also mean demolition and temporary inaccessibility of the terrace area. In such a case, the community of owners bears the entire cost, including the restoration of the paving, unless otherwise agreed.

However, if the terrace is not in a state of disrepair, but the user wants, for example, to replace the paving due to wear and tear, or if he wants the paving to be nicer, an agreement needs to be established in the community. Its result can be, for example, the replacement of worn pavement on all terraces at the expense of the community of owners, or, conversely, the replacement of pavement on one terrace with a better or nicer one, at the expense of the terrace user. Of course, such agreements and investments must have the appropriate requirements, such as ensuring the technical quality of the implementation, whether through project processing, implementation by a quality company, ensuring technical supervision, etc., so that there is, for example, no violation of the insulation function, which naturally affects other units.

Solving specific cases in older houses according to the Act on Ownership of Apartments

The situation is less clear in older houses where the first apartment was sold before January 1, 2014. In these houses, the loggia or terrace is accessible from one unit part of the apartment. This applies even if its area is not included in the area of ​​the unit from which the share of common parts is calculated. The actual condition and wording can be verified in the owner's statement where the units and common parts are defined. The same wording from the owner's statement should also be included in the purchase contract.

In the first example of the apartment building at the beginning of the article, where the facade containing the loggia is to be insulated, there is a conflict between the interest of the entire community in energy savings and the improvement of the house and the interest of the owner of the unit with the loggia, who will lose part of the usable area due to the insulation. This is where the patient diplomacy of members of community bodies and all other owners comes into play. Currently, such a situation is not entirely without the possibility of a solution that both parties would accept.

There are thermal insulations on the market with much higher thermal insulation efficiency (up to twice as high) compared to ordinary facade polystyrene or mineral wool. These are, for example, boards made of phenolic foam. For equally effective insulation, approximately half the thickness of the board can be used. The disadvantage is, of course, the higher price of the material. Additionally, in one direction, the missing area of ​​the loggia can be compensated by moving the railing simultaneously with the insulation, of course taking into account its desired shape, size of gaps, etc.

In the event that the community agreed in the past to transfer funds from the loggia area to the repair fund, loggia owners can be argued to a certain extent by, for example, reducing the levy to the repair fund due to the reduction of the loggia area. In any case, these cases are always problematic from the point of view of agreement. Agreement is often unattainable. Often, any modification of the facade is blocked, or is carried out with compromises that devalue it to a large extent.

The second example from the beginning of the article, where it flows through the terrace to another apartment below it, needs to be approached differently. It is difficult to imagine that in the event of such an accident, the entire terrace, including all layers, will be declared the property of the owner of the apartment to which it belongs, and therefore that he is responsible for the leakage. Two neighbors cannot be expected to agree on who will have the repair done and especially which of the two will finance it.

The solution is to look at the terrace as a roof, which it actually is. According to the Act on Apartment Ownership, the roof is a common part. All co-owners participate in its repair, regardless of whether they have an apartment under the roof. If the terrace fulfills the function of a roof and therefore contains in its composition layers that fulfill an insulating function, especially a waterproofing layer, these layers must be considered as a common part. Repairs of accidents or other unsatisfactory conditions are then handled by the community of owners, not the owner himself. The costs of repairs are shared among all owners according to applicable regulations.

The situation is a little different if the owner of the terrace decides to replace, for example, only the paving for aesthetic reasons. The tiling does not fulfill, and even from its technical nature cannot fulfill, an insulating function. In addition, according to the owner's statement, floor coverings are listed as part of the unit. In such a case, the costs of replacing the pavement should be borne by the owner of the apartment, including the necessary costs for e.g. the renewal of the waterproofing screed, which is placed under the pavement, or under the glue, usually found.

Conclusion

Although the common parts of the house are described in the laws and in the declaration of the owner, and their handling should be defined in the articles of association of the owners, it is advisable to check all the facts in advance when buying an apartment. Be sure to verify the definition of the unit and common areas in the owner's declaration, and then verify the agreement between the description of the unit in this declaration and the purchase agreement. It is already fairly well known among the public that it is advisable to have the condition of the apartment and the entire house assessed by an expert before buying a property. From the point of view of the relationship between the purchased unit and the whole house, it is advisable to find out the condition of the facade, balconies, loggias and terraces as well as the roof, what investments are planned, etc. community committee, how the construction of balconies, loggias and terraces is viewed, because the provisions of legal regulations can be interpreted differently by each community. It is definitely recommended to study the articles of association, where it is described how and by what majority decisions are made on investments and the management of common parts.

Citation of the entire provisions

Full citation (1)

NV No. 366/2013 Coll.

Common parts of immovable property § 4 Common parts of immovable property may be, in addition to the land on which the house is built, also land functionally related to the operation and management of the house and the use of the units, on which there are mainly paved areas, front gardens, parking areas, yards or on which small buildings are located, in particular a waste water treatment plant, a septic tank , substation, house boiler room and other buildings that are necessary to ensure the operation and management of the house. Common parts of the house § 5(1) Common parts of the house, as parts essential for maintaining the house including its main structures and its shape and appearance, as well as for preservation of the apartment of another owner of the unit, and equipment also used by another owner of the unit to use the apartment according to § 1160 paragraph 2 of the Civil Code, are in particular a) horizontal and vertical load-bearing structures including the foundations of the house, perimeter walls of the house, b) the roof including fillings of outlet openings, insulation , lightning rods, footbridges, rain gutters and downpipes, outdoor or indoor, c) chimney as a building structure in its entire construction length, including lining purchased together with the chimney, apart from additionally installed chimney liners purchased with the consent of the person responsible for the management of the house by individual unit owners, to to which the heat appliances of these owners are connected and which form one technological unit as the flue gas path of the heat appliance, d) rafters, stairs, entrances and entrance doors to the house, facades, staircases, corridors, fillings of building openings of the main vertical structure (windows including shutters), e) display case (showcase) to the extent that it is located in the plane of the perimeter wall of the house, including the external glass and blinds of the display window, which is always in the exclusive use of the owner of the unit, except for the parts of the display window entering from the inner surface of the perimeter wall into the interior space of the room, f) balconies, loggias, terraces, atriums, even if they are accessible only from the apartment, doors from balconies, loggias and terraces; these common parts, if they are only accessible from the apartment, are always in the exclusive use of the owner of the relevant unit, g) house boiler rooms, exchange (transfer) station rooms, including all technical equipment and components, if they are not owned by another person, h) elevators in common areas, including evacuation and fire elevators, car elevators and car platforms, external fire escapes, i) floors, almond rooms, laundries, drying rooms, carriage rooms, wheelhouses, cellar cubicles and rooms located in the common parts of the building that are not defined as an apartment or part of the apartment, j) swimming pools, further areas in which parking spaces are located, if they are not included in the unit. (2) Common parts of the house are always the perimeter walls spatially delimiting the apartment even if they are non-load-bearing vertical structures, further all load-bearing vertical structures inside the apartment, such as in particular walls, columns and pillars, always with the exception of surface treatments, such as interior plastering, paintings and any wall coverings, wallpaper, wooden or other paneling, coffered ceilings and similar interior wall or ceiling coverings, and also the construction of built-in cupboards in the walls. (3) Floors are common parts of the house, with the exception of floor coverings in the apartment and everything that is connected with laying or settling and with the function of the relevant type of floor coverings, together with possible footfall noise insulation and thermal insulation, are if it is part of the floor covering and does not interfere with the common parts of the house. § 6 The common parts of the house are further a) connections from the main line or from the main line for the supply of energy, water, for the removal of waste water, if they are not owned by the suppliers, the domestic waste water pipe up to the outlet (equipment) for connecting waste water pipes from the apartment, house pipes for draining rainwater, b) electricity distributions up to the apartment circuit breaker behind the electricity meter, c) gas distributions up to the shut-off for the apartment, d) hot and cold water distributions, including risers , whether it is the main vertical distributions, or branches from them to proportional meters for the apartment, or to the closures for the apartment, if meters for individual apartments, including these meters or closures, are not installed; this does not apply to distribution systems inside the apartment, including water taps, e) in the case of central heating, the entire heat distribution system, including distribution systems in the apartment, radiators and other heating elements, including thermostatic valves and equipment used to account for heating costs; distribution parts located in the apartment, radiators and thermostatic valves are for the exclusive use of the owner of the unit as common parts, f) fire protection equipment, emergency lighting including backup sources, lighting of common parts, g) all air conditioning equipment up to the connection to the apartment, if it was purchased as common; this does not apply to air conditioning equipment if the unit owner procures it; similarly, this applies to all types of ventilation, h) distribution and reception systems for television signals and data networks up to connection to the apartment,i) telephone wiring, house bell, interior equipment and artistic decoration of the common parts of the house, entrance barriers, gates, gates and other accessories of the house, which are absolutely necessary for the operation of the house and for the use of the units and, from the point of view of their nature, are intended for this purpose.

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Full quote (2)

Act No. 72/1994 Coll. – Act on the ownership of flats

§ 2 Definition of terms For the purposes of this Act) a building is a permanent structure connected to the ground by a solid foundation, which is spatially concentrated and externally closed by perimeter walls and roof structures with at least two spatially closed separate utility spaces , with the exception of halls By decision of the owner, a section with a separate entrance can also be considered a building, if it is separately marked with a descriptive number and is structurally and technically arranged in such a way that it can fulfill the basic function of the building independently. ,c) a non-residential space is a room or set of rooms which, according to the decision of the building authority, are intended for purposes other than housing; non-residential premises are not accessories of an apartment or accessories of a non-residential space or common parts of a house, d) a house with apartments and non-residential premises owned by a building that is co-owned according to this Act (hereinafter referred to as "the house"), e) an apartment under construction is a room or a set of rooms , designated in accordance with the building permit for housing, if it is under construction in a house that is at least at such a stage of construction that it is already closed on the outside by perimeter walls and a roof structure, f) a non-residential space under construction is a room or a set of rooms, designated in accordance with the building permit a permit for purposes other than housing, if it is under construction in a house that is at least at such a stage of construction that it is already closed on the outside by perimeter walls and a roof structure, g) common parts of the house, parts of the house intended for common use, especially foundations, roof, main vertical and horizontal structures, entrances, staircases, corridors, balconies, terraces, laundries, dryers, carriage houses, boiler rooms, chimneys, heat exchangers, heat distribution, hot and cold water distribution, sewage, gas, electricity, air conditioning, elevators, lightning rods, common antennas, even if they are located outside the house; furthermore, the common parts of the house are considered to be the accessories of the house (for example, small buildings) and the common equipment of the house (for example, the equipment of the shared laundry), h) a unit is an apartment or non-residential space or an apartment under construction or a non-residential space under construction as a defined part of the house according to this Act, i) floor by the area of ​​an apartment or an apartment under construction, the floor area of ​​all rooms, including rooms that are accessories of an apartment or an apartment under construction, j) by the floor area of ​​a non-residential space or a non-residential space under construction, the floor area of ​​all rooms of a non-residential space or a non-residential space under construction, including areas intended exclusively for use with non-residential space , possibly with non-residential space under construction; one half of this area includes the floor area of ​​internal corridors and other areas that are part of the intermediate space, k) built-up land means land built on by an apartment building, bounded by the perimeter of an apartment building.

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Act No. 72/1994 Coll. – Apartment Ownership Act

§ 4 Declaration of the building owner (1) The building owner, by means of his declaration (hereinafter referred to as the "declaration"), determines the spatially defined parts of the building which, under the conditions set by this Act and in accordance with the construction purpose, will become units [§ 2 letter h)] and common parts of the house [§ 2 letter G)]. The declaration must be in writing. The declaration is a mandatory attachment to the proposal for permission to deposit the ownership right in the real estate cadastre based on the contract for the transfer of the first unit in the building. (2) The declaration according to paragraph 1 must contain a) the designation of the building with data according to the real estate cadastre, the number of the unit including its name and location in the building, b) description of the units, their accessories, floor area and description of their equipment, c) determination of the common parts of the building that will be common to the owners of all units and determination of the common parts of the building that will be common to the owners of only some units, d) determination of the co-ownership shares of the unit owners in common parts of the building (§ 8 para. 2), e) designation of the land that is the subject of transfer of ownership or the subject of other rights according to § 21, data according to the real estate cadastre, f) rights and obligations regarding the building, its common parts and the right to the land , which will pass from the owner of the building to the owners of the units, g) rules for the contribution of co-owners of the house to expenses related to the management, maintenance and repairs of common parts of the house, or the house as a whole, h) rules for the management of common parts of the house, or the house as a whole, including designation of the person entrusted with the management of the house. (3) Floor plans of all floors, or their diagrams, specifying the location of the units and common parts of the house, with data on the floor areas of the units, are attached to the declaration.

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Literature

  1. Act No. 89/2012 Coll. Civil Code effective from 1 January 2014
  2. Regulation No. 366/2013 Coll. on the adjustment of certain matters related to housing co-ownership, effective from 1 January 2014
  3. Act No. 72/1994 Coll. which regulates some co-ownership relationships to buildings and some ownership relationships to apartments and non-residential premises and supplements some laws (Act on Ownership of Apartments) effective from 1.5.1994, repealed 1.1.2014
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English Synopsis
What are the common parts of residential buildings in the Czech Republic?

The definition of what is a common part of a residential building is essential especially when modifying the building structures and eliminating defects that affects both a common part and residential units. How common parts are defined affects who finances the modifications and reconstructions of such structures and parts. The definition of common parts is based on the new Civil Code (No. 89/2012 Coll.) and on the already abolished Act on Ownership of Housing (No. 72/1994 Coll.).


Date: 19.6.2017 Author: Ing. Petr Bohuslávek, editorship all articles by the authorReviewer: Mgr. Jan Eisenreich, svjpravnik.cz Have your say in the discussion! 3 posts, last 15.10.2021 05:06 printfacebooktwittere-mailhledat

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