LAWSUIT FOR COURT APPOINTMENT OF A BUILDING MANAGER IN AN APARTMENT BUILDING – INABILITY OF CO-OWNERS TO AGREE ON A JOINTLY SELECTED PERSON – EXPIRY OF THE PREVIOUS MANAGER’S TERM AND ACCUMULATION OF PROBLEMS IN THE APARTMENT BUILDING – DUTIES OF THE MANAGER DURING THEIR TERM – LEGAL CONSEQUENCES. – In view of the inability to elect a manager, the above apartment building cannot be administered, nor can all those necessary actions be carried out which are provided for in the building’s regulations, and consequently, the issues arising from time to time in the apartment building, relating to the maintenance of the commonly owned and shared areas and the apportionment of charges and expenses among the co-owners, cannot be resolved by agreement of the co-owners – It was proven that an important reason exists and that there is a need for the Court to appoint a manager of the apartment building, who shall be unpaid and shall exercise these duties in accordance with the provisions of the existing regulations and the law – The lawsuit is upheld – (Article 4 of Law 3741/1929, Article 790 of the Civil Code (AK)).
THE SINGLE-MEMBER COURT OF APPEALS OF PIRAEUS
3rd Section
Composed of Judge Evangelia Pantazi, Appellate Judge, who was designated by the President of the Three-Member Council of Direction of the Court of Appeals of Piraeus, and Clerk K.S.
Sat in public session in its courtroom on ………, to adjudicate the case between:
APPELLANTS: 1) …….. 2) ……. and 3) ………. who were represented by their attorney-in-fact, lawyer Ioannis Trapakoglou (by declaration under Article 242 para. 2 of the Code of Civil Procedure (KPolD)).
APPELLEES: 1) …….., 2) ……… 3) ……….4) ……….., 5) ……….., 6) …………, 7) …………8) ………..and 10) ……….., all of whom were represented by their attorney-in-fact, lawyer Asimina Koulourioti (by declaration under Article 242 para. 2 of the KPolD).
The appellees filed before the Single-Member Court of First Instance of Piraeus the lawsuit dated 4 January 2022 (GAK/EAK ………/2022), upon which judgment no. 3547/2022 of the said Court was issued, which upheld the lawsuit.
This judgment was challenged before the present Court by the defendants, now appellants, by their appeal dated 27 December 2022 (GAK/EAK FIRST INSTANCE ……./2022 – GAK/EAK APPEAL ……../2023), the hearing date for which was set as referred to at the beginning of the present judgment.
The case was called in turn from the relevant docket and was heard.
The attorneys-in-fact of the parties, who appeared by declaration before the present Court, set out their views in the written briefs which they submitted in advance.
HAVING STUDIED THE CASE FILE
AND HAVING DELIBERATED IN ACCORDANCE WITH THE LAW
Brought for hearing before this Court is the appeal of the defendants, now appellants, dated 27 December 2022 (filing no. ………./2022), which is directed against the final judgment no. 3547/2022 of the Single-Member Court of First Instance of Piraeus, which was issued with both parties present, under the special procedure for property (lease) disputes provided for in Article 614 para. 1 of the KPolD. The above appeal has been lodged in due form and within the prescribed time-limit (Articles 495 paras 1, 2, 499, 511, 513 para. 1 b, 516 para. 1, 517 and 518 para. 2 of the KPolD), and is properly brought for adjudication before this Court (Article 19 of the KPolD), while the filing fee required for its lodging has been deposited, pursuant to Article 495 para. 3 of the KPolD. Therefore, the appeal must be admitted formally and examined further, under the same procedure, as to the admissibility and merits of its grounds (Article 533 para. 1 of the KPolD).
In their lawsuit dated 4 January 2022 (filing no. …………/21 January 2022) before the Single-Member Court of First Instance of Piraeus, the plaintiffs, now appellees, narrated that they and the defendants are owners, possessors and holders of the horizontal properties referred to in the apartment building located in the Municipality of Piraeus, at the intersection of …………… and ………… streets, which is subject to Law 3741/1929. That, in the duly registered regulations governing the relations among the co-owners and the administration and management of the said apartment building, it is provided that the manager is elected by the general meeting of the co-owners, in accordance with its more specific procedural provisions, and may be an owner or a third party non-owner residing in the building. That, since 2012, when the term of the first defendant expired, the said apartment building has had no manager, while the latter ceased thereafter to attend to the maintenance of the commonly owned and shared areas of the building and to the apportionment of charges and expenses among the co-owners.
That, despite their efforts to find a mutually acceptable solution to the management problem, since then it has not been possible to achieve the appointment of a new manager, because the defendants, who represent 510/1000 of the general votes and 514/1000 of the special votes, refuse at general meetings to consent to any proposal of the minority for the appointment of a manager, so that, without their consent, no decision on appointment can be taken. That, due to this, complete abandonment of the apartment building has ensued, with the accumulation of serious problems in its operation.
In view of the above, they sought by their lawsuit the appointment of a manager by the Court. Specifically, they requested the appointment as manager of the father of the first plaintiff, ………………….., a clergyman, who, although not himself an owner, resides about ten days each month in his son’s apartment and is able to perform these duties competently. In the alternative, they sought the entrustment of the management of the said apartment building to a company specialising in the management of common-area expenses, for as long as no duly elected manager exists, in order to perform every act of administration and management of the co-ownership. The first-instance Court, by the contested judgment, after dismissing the alternative basis of the lawsuit as inadmissible, upheld its principal basis, appointing the person proposed by the plaintiffs, ………………, a clergyman, as manager of the apartment building without remuneration. Against this judgment and, specifically, the part of it by which the principal basis of the lawsuit was upheld, the appellants complain, on grounds relating to erroneous interpretation and application of the law and incorrect assessment of the evidence. They request the contested judgment to be set aside and, accordingly, their lawsuit to be dismissed.
Pursuant to Article 4 paras 1 and 2 of Law 3741/1929 on storey ownership, the co-owners are permitted, by a special agreement, in which the common consent of all is necessary, to confer upon a defined majority — which may vary in accordance with the seriousness of the decisions to be taken — the right to take, in the common interest, any decision relating to the maintenance, improvement and use of the common parts of the joint property.
The co-owners may, in the absence of regulations, designate by unanimous vote a manager and grant them the most extensive management rights, including those for carrying out maintenance works, apportioning expenses and charges, as well as appearing in their own name in court, either as defendant or as plaintiff. From these provisions it follows that the co-owners, even by the regulations of the apartment building (which are drawn up by common consent), may either directly appoint a manager, granting them the above powers and in particular the right to sue and be sued in respect of disputes that may arise from the management of the apartment building, with third parties or with co-owners, or entrust such appointment and the granting of the said powers to a defined majority of the co-owners. Moreover, from the same provisions it follows that the extent of the powers of the manager, as the agent of the owners, is determined by the act of their appointment and/or by the regulations (see Areios Pagos 532/2019, Areios Pagos 1557/1981 NOMOS).
The aforesaid Law 3741/1929 did not provide for the case of inability of the co-owners to appoint a manager. In such case, which is treated identically with that in which the issue of the appointment of a manager is not regulated in the existing regulations, the rights and obligations of the co-owners are governed by Article 790 of the Civil Code (AK), on the basis of which a manager may be appointed by the court. The power of the manager, defined in the judgment by the need for the operation of the storey ownership, includes every act of administration and management of the common parts of the apartment building tending to their use in the interest of the co-owners (see Athens Court of Appeals (EfAth) 5095/2011, EfAth 3236/2004, EfAth 580/2004, NOMOS).
From the assessment of the sworn deposition of the witness for the prosecution of the case and the unsworn examination of the second appellant-defendant, who is a party, in the courtroom of the first-instance Court, which are contained in the minutes of its public session bearing the same number as the contested judgment, as well as of all the documents which the parties invoke and lawfully produce, either to be taken into account as autonomous means of evidence or to serve as judicial presumptions, the following facts have been established:
The parties are owners of horizontal properties of the apartment building located in Piraeus, on building block no. …….., at the intersection of …………. street, since renamed to …………., and ………… street. Specifically, the appellees are owners of the following horizontal properties: 1) the first owns 100% of horizontal property B-1 (an apartment) with KAEK …….., 2) the second and third each own 50% in undivided shares of horizontal property B-2 (an apartment) with KAEK ……., 3) the fourth, fifth and sixth own 3/8, 2/8 and 2/8 respectively of horizontal property C-1 (an apartment) with KAEK ………, 4) the seventh owns 100% of horizontal property D-1 (an apartment) with KAEK ……………. 5) the seventh owns 100% of horizontal property D-1 (an apartment) with KAEK …………., 5) the eighth owns the bare ownership and the ninth the usufruct of horizontal property D-2 (an apartment) with KAEK ………… and 6) the tenth owns 100% of horizontal property E-2 (an apartment) with KAEK ………… The appellants, on the other hand, are owners: a) the first thereof owns 100% of horizontal properties (apartments) A1, A2, ST1, ST2, with KAEK ………, ……., ……………, ………. respectively, as well as horizontal properties I-C, Y-C (a shop and a storage room), with KAEK ……….., ……….. respectively, b) the second thereof owns the following horizontal properties (apartments): G2 100%, Z-1 50% and E-1 75% in undivided shares, with KAEK ………… ………, ………… respectively, the horizontal properties (shop and storage room) I-B, Y-B 100%, with KAEK …………, …………. as well as horizontal property Roof Terrace – one, 50% in undivided shares, with KAEK ……….. c) The third thereof owns the following horizontal properties (apartments): Z-1 50% and E-1 25% in undivided shares, with KAEK …………, ……….., respectively, as well as horizontal property Roof Terrace – one, 50% in undivided shares, with KAEK ………… The said apartment building has been made subject to the provisions of Law 3741/1929 by virtue of deed no. ………/27 February 1978, the deed of establishment of horizontal ownership and regulations of the apartment building executed by the Athens notary ………., which was duly registered in volume … and number …. of the Land Registry Office of Piraeus, as amended by duly registered notarial deeds nos. ../79, …/79 and …/80 of the same notary.
In the above regulations and, specifically, in Article 43 thereof, the matters relating to the election of the manager are regulated; the manager is unpaid, is elected for a one-year term by the ordinary or extraordinary general meeting and may be an owner or a third party non-owner residing in the apartment building. The manager elected by the general meeting is granted the rights specified in the regulations. Moreover, from the combined application of Articles 38 and 41 of the said regulations, it follows that the general meeting validly convenes and decides by simple majority of the votes present, unless the law or the regulations require an exceptional majority. The general meeting has a quorum if 75% of the votes are present and represented. If a quorum is not reached at the first session, a repeat meeting is convened, in which it suffices for 60% of the votes to be present and represented in order for it to decide validly. If a quorum is not reached at the repeat session, the meeting convenes for a third session, which validly takes decisions whatever the number of those present.
The above also applies to the election of the manager of the building, since no specific majority was established in the regulations for the relevant general meeting. On 31 December 2012, the term of the first appellant as manager expired, whereupon the latter, in view of intense friction among the co-owners and the accumulation of significant debts of the apartment building, ceased to attend to its proper operation. The apartment building has not had a duly elected manager since then; there has been no care or cleaning of its common areas and, as a result, it has fallen into a deplorable condition. Specifically, the supply of common-area electricity has been cut off, with the consequence that the common stairwell and other common areas of the building are not supplied with electricity but, above all, the operation of the common-area lift has ceased, even though elderly persons reside on the floors of the building who are either unable or have great difficulty in climbing from the stairwell to their dwellings. Furthermore, due to serious deterioration, there is a need to repair or replace the entrance door of the building and to repair the drainage.
In addition to the above, this situation poses risks for the residents and for third parties visiting the apartment building, as regards their safety, especially during the night hours. The first appellee, a resident of …., a clergyman and Protosyngellos of the Holy Metropolis of …., acquired horizontal property B-1 by virtue of deed no. …/30 July 2021 of Athens notary …….., which was duly registered. From then on, efforts were made on his initiative to find a mutually acceptable solution. Specifically, on 22 September 2021 a general meeting of the co-owners was convened with the election of a manager and the settlement of older debts on the agenda. Despite the existence of a quorum, due to the long-standing poor relations and mistrust among the co-owners, no decision could be taken on the appointment of a manager, particularly in view of the negative position of the appellants, who hold the majority of the votes, given that they represent 510 of the 839 general votes. Specifically, the first appellee proposed the appointment as manager of his father, …………., a clergyman and General Archieratical Commissioner of the Holy Metropolis of …….., since, due to his administrative experience, he has every guarantee of being able to perform the duties of manager; he resides for ten (10) days each month in the apartment building and, additionally, due to his standing, he could secure the smooth operation of the apartment building and the avoidance of friction among the co-owners.
In the alternative, he proposed entrusting management to a company managing common-area expenses. However, the appellants voted down both the principal and the alternative proposals of the minority, while not putting forward any other person to be elected as manager. In view of the inability to elect a manager, the above apartment building cannot be administered, nor can all those necessary actions be carried out which are provided for in the building’s regulations and in Article 4 para. 2 of Law 3741/1929. Consequently, the issues arising from time to time in the apartment building, relating to the maintenance of the commonly owned and shared areas and the apportionment of charges and expenses among the co-owners, cannot be resolved by agreement of the co-owners.
Furthermore, the issue of the main entrance door of the apartment building remains pending; due to its age, it has suffered damage and must be repaired or replaced; in addition, repair of the apartment building’s drainage is also necessary. On the basis of the above facts, it has been proven that an important reason exists and that there is a need, pursuant to Article 790 of the AK, for the Court to appoint a manager of the apartment building, who shall be unpaid and shall exercise such duties in accordance with the provisions of the existing regulations and the law. In view of the strained relations between the parties, it is judged that the most suitable manner of serving the interest of all the co-owners is the appointment as manager of a third party who will achieve the smooth operation of the apartment building. A suitable person for this position is judged to be the aforementioned …………, a clergyman, proposed by the appellees, who provides assurances that he will diligently exercise his duties as set out in Articles 44 et seq. of the regulations of the apartment building and in the law and, in addition, will see to the repair or replacement of the main entrance door and the repair of the common-area drainage.
As proven, the said person serves as a clergyman in ….., however, he uses as a secondary residence the apartment of his son …………… (the first appellee) in the said apartment building, where he resides for around ten (10) days each month, a period of time sufficient for the discharge of his duties as manager. It is further noted that the said ……….., by virtue of the temporary restraining order dated 26 January 2023 of the President of the Single-Member Court of First Instance of Piraeus, issued in the context of interim measures proceedings, was appointed temporary manager of the said apartment building and has since exercised these duties competently and successfully.
The contrary contentions of the appellants, that the appointment of the person proposed by the appellees is contrary to the provisions of the regulations, are to be dismissed primarily as legally unfounded, since, as set out above, in every case of inability to appoint a manager on the basis of the regulations, Article 790 of the AK applies and the Court may appoint as manager any person it considers most suitable for serving the interests of all the co-owners — whether a co-owner or a third party — without any other restriction, even contrary to the provisions of the existing regulations. The first-instance Court, which accepted the same, did not err. The contrary submissions of the appellants are therefore judged unfounded on the merits and must be dismissed, as must the present appeal in its entirety.
Finally, it must be ordered that the filing fee deposited for the lodging of the appeal be paid into the public treasury (Article 495 para. 3 of the KPolD) and the appellants must be ordered, due to their loss, to pay the court costs of their opposing parties for the present level of jurisdiction (Articles 176, 183 of the KPolD), as more specifically set out in the operative part.
FOR THESE REASONS
JUDGES the case with both parties present.
ACCEPTS the appeal as to its formal part and
DISMISSES the appeal as to its substantive part.
ORDERS the entry of the filing fee deposited for the lodging of the appeal into the public treasury.
ORDERS the appellants to pay the appellees’ court costs, which it sets for the present level of jurisdiction at five hundred (500) euros.
Adjudicated, decided and published in Piraeus in an extraordinary public session in its courtroom, on 31 July 2024, without the presence of the parties or their attorneys-in-fact.
THE JUDGE THE CLERK
- See also article Apartment Building – Disputes Among Co-owners
- See also article Apartment Building Without Regulations
- See also article Tenant Eviction
- See also article Professional and Commercial Lease
- See also article Property Purchase
- See also article Property Sale
FREQUENTLY ASKED QUESTIONS ABOUT COURT APPOINTMENT OF AN APARTMENT BUILDING MANAGER
1. When can the court appoint a manager for an apartment building?
When the co-owners are unable to elect a manager by the prescribed majorities, or when the regulations do not address the matter, Article 790 of the Civil Code (AK) applies in conjunction with Article 4 of Law 3741/1929. An important reason typically exists when the previous manager’s term has expired, the majority refuses every proposal without offering an alternative, the apartment building has been abandoned, common-area electricity has been cut off, the lift has ceased to operate or debts have accumulated. In such cases, the Single-Member Court of First Instance may appoint as manager even a third party who is not an owner, if it considers this best serves the interests of all the co-owners.
2. What can I do if the majority blocks every election?
The minority — even a single co-owner — may file a lawsuit for the appointment of a manager before the Single-Member Court of First Instance of the district where the property is located, under the special procedure for property disputes. Before filing, it is useful to have convened at least one general meeting with the election of a manager on the agenda and to have recorded in the minutes the inability to take a decision or the negative stance of the majority. In parallel, an application for interim measures may be filed seeking a temporary restraining order for the appointment of a temporary manager, in order to address urgent needs of the building until the final judgment is issued.
3. How long does the court process for appointing a manager take?
The lawsuit for appointment of a manager is heard under the special procedure for property disputes, which is relatively swift. From filing to the hearing, the interval is typically eight to fourteen months, depending on the workload of the Court of First Instance, and the judgment is generally issued a few months thereafter. If the situation in the building is urgent, the parallel application for interim measures may produce a temporary restraining order within a few days and a judgment within two to four months. If the opposing side appeals, adjudication before the Court of Appeals usually adds another one to two years.
4. What documents are needed for the lawsuit?
Essential are the plaintiff’s title deeds, the deed of establishment of horizontal ownership and the regulations of the apartment building, including any amendments, as well as their registration certificates. Useful are the minutes of general meetings reflecting the inability to elect a manager, the notices to the co-owners, evidence of the expiry of the previous manager’s term, and any material substantiating the poor condition of the building, such as photographs, electricity bills showing disconnection, and technical reports on the lift or drainage. Finally, identification details and proof of availability of the proposed manager are required.
5. What chances of success does such a lawsuit have?
Where the inability to elect a manager and the accumulation of problems in the apartment building are sufficiently substantiated, the chances are typically high, since case-law recognises that the court has broad discretion to appoint as manager even a third party non-owner, contrary even to the provisions of the regulations, where this serves the interests of all. Decisive is the proof that consensual efforts were made and failed, as well as the suitability of the proposed person. If, by contrast, the opposing side proposes an alternative suitable person, the court weighs the candidates comparatively and the outcome becomes more uncertain.
6. What is the role of the lawyer in a manager-appointment case?
The lawyer reviews the regulations and the majorities they prescribe, organises the procedure for convening a general meeting in order to establish the inability to elect a manager, drafts the lawsuit setting out the facts and the impending harm clearly, and decides strategically whether to combine it with interim measures for immediate coverage of the building’s needs. They represent the co-owner before the Single-Member Court of First Instance and, where required, before the Court of Appeals. At the same time, they substantiate the suitability of the proposed manager and rebut the objections of the opposing side. The firm’s experience in horizontal-ownership cases enables effective handling of such disputes.