Do I really own my parking spot? On the use of common property in housing communities
In housing communities, the individual parts of common areas (e.g. parking spots, terraces or gardens) are intended for common use by all owners of premises. Often, to avoid problems with use of such areas, division and use of common areas is established at the stage of acquisition of housing units from the developer. This is known as quoad usum division. Can it be changed if circumstances change?
Use of common property
Pursuant to Art. 206 of the Polish Civil Code, each co-owner is entitled to jointly possess and use jointly owned property to the extent compatible with joint possession and use of the property by the other co-owners.
In case of ownership of premises, the equivalent of Art. 206 of Civil Code is Art. 12(1)–(2) of the Ownership of Premises Act, stating that the owner of premises has the right to use the common property in accordance with its purpose; the benefits and other income from the common property shall fall to the owners of premises in proportion to their shares, and in the same proportion they shall bear the expenses and burdens associated with the maintenance of common property.
The co-owners may provide for use of the common property differently than as prescribed by statute. The most commonly used division is the quoad usum division, i.e. a division of common property “as to use.”
The source of the division as to use may be:
- An agreement entered into by co-owners (the most common case)
- A court ruling
- An implicit method, when co-owners use the common property in an established, consensual manner.
A quoad usum agreement is an agreement entered into by co-owners of real estate to determine the division and use of the common property. As a result of such division, each co-owner receives for exclusive use a separate part of the common property, e.g. a parking spot in a garage.
Moreover, using the principle of freedom of contract set forth in Art. 3531 of the Civil Code, the co-owners may freely determine the method of use of the common property, so long as the substance and purpose of the agreement do not contradict the law or principles of social co-existence, or lead to circumvention of the law (Civil Code Art. 58).
Quoad usum agreement can be changed, but only in special circumstances
The case law recognises that a quoad usum division is not definitive, and when the circumstances change, it is possible to amend the agreement.
The Supreme Court of Poland resolution of 12 April 1973 (case no. III CZP 15/73) indicates that a quoad usum agreement is continuous in nature as it aims to stabilise the factual relations. Therefore, such an agreement may be amended only if new circumstances arise necessitating a different regulation of the use of the property by the co-owners. Only important reasons may lead to the possibility of regulating the use of the property differently. It is essential for the quoad usum division to take into account the interests of all owners.
The current case law of the Supreme Court indicates that this division can also be amended by a resolution of the housing community. Regarding the majority vote necessary to pass a resolution to amend the agreement, two separate positions exist. According to the first view, the quoad usum division may be changed when a majority of the co-owners agree to a change. According to the second view, a change of the quoad usum division requires all co-owners’ consent.
Can a parking spot be taken away from someone by a community resolution?
In one of its rulings (case no. III CSK 325/09), the Supreme Court considered the nature of a quoad usum agreement where a developer had built an apartment building and then separated and sold the individual units.
The common property included parking spots in an underground garage. Some of the agreements on the sale of units stipulated that their owners would be entitled to exclusive use of a parking spot, while in other cases, no such stipulation was made. The developer separated the last two units for its own benefit and asserted that it had the right to exclusive use of the remaining 27 parking spots, which were not assigned to individual units. Originally, the unit owners hoped that spaces would be created in a public parking lot, which was guaranteed to them by the developer, but no such parking was built. As a result, more than a dozen residential unit owners were not provided with parking spots.
Subsequently, as members of the housing community, the unit owners passed a resolution changing the use of the common property by granting all unit owners the right to use the parking spots previously used exclusively by the developer. The developer challenged the resolution in court.
In that case, the Supreme Court held: “If the owners of premises have specified in their agreements with the previous owner the method in which the parking lots are to be used, such a quoad usum division of a part of the common property may be changed at any time by a resolution of the majority of the unit owners. Certainly, such a resolution violates the subjective interest of the existing owner. However, this is not a violation that would justify quashing the resolution pursuant to Art. 25(1) of the Ownership of Premises Act.”
Therefore, it should be concluded that the quoad usum division of a part of common property may be changed by a resolution of the owners of premises, but the change should be dictated by important reasons and a significant change of circumstances, as in the cited judgment, where the court held that the use by the developer of 27 parking spots violated principles of fairness and equity, as several owners of premises had no place to park their cars.
Conclusion
Under a quoad usum agreement, the co-owners determine the use of common property. Very often, such agreements are concluded at the stage of acquiring the premises. Generally, it is understood that such division is permanent, and the acquirer also permanently acquires the right to use a particular parking spot upon acquisition of the premises.
But a quoad usum agreement is not permanent. The division of the use of common property established by the agreement may be changed by a resolution of the co-owners. However, such a change should be dictated only by a significant change of circumstances, and the quoad usum division must take into account the interests of all owners, as all co-owners are entitled to use the common property in accordance with its socio-economic purpose.
Karolina Dawidczyk, Sylwia Moreu-Żak, attorney-at-law, Real Estate practice, Wardyński & Partners
