Condominium – division of responsibilities regarding underfloor heating systems in condominiums
Condominium – division of responsibilities regarding underfloor heating systems in condominiums
Underfloor heating system condominium
In 1994, S.N. and G.J. acquired the condominium for a duplex apartment belonging to the Housing Association Knoppen (housing association).
Unlike the rest of the house, which is heated with elements, the maisonette has an underfloor heating system installed.
Part of the floor was previously undecorated attic.
In 1986, M.J., who already owned the condominium for an apartment in the house, was granted the attic.
She furnished the attic and merged it with her apartment.
In connection with the renovation, M.J. installed the underfloor heating plant that remained when S.N. and G.J. moved into the floor.
In 2014, underfloor heating was broken for a period.
A dispute arose as to whether S.N. and G.J. or the condominium association were responsible for repairing and maintaining the facility.
Maintainenance of condominium
According to the association’s statutes, tenant-owners are only responsible for maintenance inside the apartment.
Furthermore, it is stated that the limit of what is inside the apartment goes by the floor, however, it is not specified what should be counted as the floor.
S.N. and G.J. claim that the floor is a flat bottom surface in a room that excludes underlying waterproofing and underfloor heating.
Another factor they consider speaks in their favor is that the association is responsible for the maintenance of elements and other heating devices in the house.
Since underfloor heating is the only heat source in the maisonette, it should also be the responsibility of the association.
The tenant-owned association, for its part, is of the opinion that the limit of the floor should be the same as the area specified by the lease, which means that the floor heating is included.
In addition, it is argued that the maintenance responsibility for the underfloor heating cannot lie with the association because it was the former tenant-owned person who installed the system.
Housing Act
The District Court (TR) takes the Housing Act (BRL) Chapter 7, Section 4 as a starting point.
It stipulates that the association is responsible for the maintenance of the apartment and the house to the extent that the responsibility does not lie with the tenant-owners in accordance with Section 12 of the same chapter.
According to Section 12, the tenant-owned person is obliged to keep the apartment in good condition at his own expense, unless otherwise stated in statutes or other legal provisions.
Furthermore, the same paragraph states that tenant-owners are not responsible for repairs of sewers, heating, gas, electricity and water.
This leads the court to conclude that there is nothing in law that prevents the association from being responsible for all areas of the house except inside the apartments.
TR also notes that there is no definition of what should be counted as the apartment in BRL, but the question has instead been left to the association to regulate in the statutes according to the law’s preparatory work.
The association’s statutes
As mentioned earlier, the floor about the limit of the apartment is stated in the association’s statutes.
Since no further definition is given, TR goes further to determine how the word “floor” should be interpreted.
It is noted that the general definition of flooring is a lower bounding area in a building or room.
Since the court does not consider such a definition to be compatible with the association’s interpretation, it is considered that the underfloor heating device is the responsibility of the association.
The Court of Appeal (HovR) is based on the same grounds TR.
Since HovR interprets the grounds in principle in the same way, TR’s judgment is established.
Maintenance liability condominium
The Supreme Court (HD) initially sets out the same legal starting points in the BRL and the association’s statutes as the sub-courts have based.
Furthermore, HD notes that statutes for tenant-owned associations are generally based on standardized agreements instead of being designed for a specific situation.
The Court therefore departs from the usual principle of contractual interpretation to try to ascertain the common will of the parties and instead makes an interpretation on objective grounds.
Since the wording of the present case – that the limit of the apartment runs on the floor – leaves room for several interpretations, the court makes a purpose interpretation of the provision.
HD notes that the purpose of the division of maintenance responsibilities between association and tenant-owners is to keep property including apartments in good condition.
For the tenant-owner, this means that the necessary measures must be taken and paid for.
Therefore, the court considers that the obligation to be responsible for the apartment should be linked to the maintenance of internal surfaces required as a result of the use of the apartment.
What is then updated is mainly wear and tear on, for example, floors, walls and interiors.
HD’s conclusion is therefore that the tenant-owned tenant’s maintenance obligation only covers the surface layer of the floor.
Since the underfloor heating is under the floor covering, it does not belong to the apartment and is therefore the responsibility of the association.
HD therefore stipulates that the tenant-owned association must pay for the repair.