Scope of Land Supervisor’s Powers
A judgment by the Supreme Court recently established the scope of instructions the Land Supervisor is authorized to issue in regard to the common property of a condominium defined as a “complex building.”
In the case at hand, the appellants and the respondents are owners of units in a condominium made up of two structures, with each structure consisting of a yard and a fence between them. Each structure holds four units and each of those units has a separate entrance without a common stairwell.
The owners of two units located in the same structure approached the Supervisor of Condominiums, claiming that two units located in the second structure created in the yard a continuous access path from the street to that structure and, for such purposes, destroyed part of the fence that separated the two structures, all without the other owners’ consent.
The respondents asked the Supervisor to exercise her powers and hold that the building must be run as a complex building, whereby the apartments hold no authority to create an access path. For their part, the appellants argued that this was a single condominium, with the entire yard area constituting common property that all unit owners may use.
The Supervisor found in favor of the appeal and held that the building is a complex building that was run as such and should continue to be run as such. The Supervisor noted that following a visit she conducted at the location, it seemed there was never an access path, in light of the fence clearly separating the two structures. The Supervisor dismissed the appellants’ claim that section 59 of the law grants her power to regulate the manner in which expenses are distributed in regard to common property alone. The Supervisor further held that this section explicitly stipulates that once a condominium has been designated a complex building, the separation shall apply both in terms of the duty to participate in expenses and in terms of its management and maintenance. Therefore, it must be ordered that the common property areas close to each structure shall be attached to them. Further, it was decided that the management of the common property and the duty to participate in its maintenance expenses shall apply to the unit owners in each of the structures independently and in accordance with the portions attached to them.
An appeal of the decision was dismissed by the District Court, hence the appellants’ application for leave to appeal to the Supreme Court.
The Supreme Court dismissed the appeal and held that section 59 distinguishes between two categories of complex buildings: an “attached” complex building, where the common property in each part of the building is attached to the units in that part alone, and a “non-attached” complex building, where only the management and maintenance components of the common property are independent. As a result, the unit owners in the condominium hold the authority to establish a complex building of either category, but the Supervisor is authorized to order the constitution of a “non-attached” complex building.
- Maintenance Expenses: The Supreme Court ruled that in terms of the duty to participate in maintenance and management expenses of the separated common property, the outcome is similar for both categories. In other words, the duty to participate shall apply only to unit owners of the same structure or wing of the complex building. This is the narrowest meaning of exercising the Supervisor’s power under section 59.
- Existence of Separate Representations: An “attached” complex building and a non-attached complex building are identical in terms of holding independent general assemblies for unit owners of the same structure or wing of the complex building, as well as the establishment of separate representations for the owners of such units. This is possible in two scenarios: in the case of an “attached” complex building, a provision regarding the existence of separate representations must be set in the building’s regulation with the consent of all unit owners, whereas in the case of a “non-attached” complex building, a provision may also be established by order of the Supervisor.
- Use of the Common Property: In an “attached” complex building, since sections of the common property are “removed” from it, then the right of some residents to make use of those sections is removed anyway.
The issue is if within the alternative of a “non-attached” complex building, the establishment of which may be ordered by the Supervisor as well, the right of unit owners of a certain wing to make use of the common property of another wing is revoked. In this matter, the Supreme Court clarified that in many cases the provisions as to the separation of management and maintenance would also necessitate regulation as to the separation of use of common property in accordance with the separation of different wings. In effect, limiting the use of separated common property is not an “automatic” by-product of the Supervisor’s decision to separate management and maintenance.
The Supreme Court held that the Supervisor’s authority under section 59 is limited to the granting of orders in terms of a “non-attached” complex building. This means the Supervisor has no authority to order the attachment of certain parts of the common property to particular units, but does have the power to order separate management and maintenance and the existence of separate representations. This decision may lead to a decision regarding the prevention of the unit owners’ use of the common property in another structure.
The Supreme Court further ruled that the Supervisor had established instructions as to the attachment of certain sections of the common property to the various structures in the complex building, but that the interpretation of section 59 does not permit this. However, the outcome the Supervisor reached should not be changed. The Supervisor is authorized to give orders as to the separation of the management in a complex building. Pursuant to this, the new representations of the separated wings of a complex building may make decisions, inter alia, in terms of limiting the separated common property. Under the circumstances of the case, the Supervisor’s decision may be seen as one that gives effect to the described will of the unit owners in the top structure.