Rooftop extensions in the Netherlands

01-09-2024
In the Netherlands, buildings can be divided into apartment rights through a notarial deed of division and its registration in the public registers of the Land Registry.¹ The deed of division includes at least a description of the parts of the building that are exclusively for the use of individual condominium owners and a description of the common areas within the building that are shared by all and the division regulations which regulate the rights and obligations of the condominium owners.² As a result, all condominium owners share ownership of the building (and therefore should make joint decisions thereabout) and each individual owner receives an exclusive right to use a specific private part of the building (unitary/monistic system).³ Each apartment right is a separate registered property that can be sold and transferred to a third party and can be subject to other legal actions (such as encumbrance with a right of mortgage). The community is governed by a legal entity referred to as the Association of Owners (Vereniging van Eigenaars).

Modification methods

There is no specific legislation regarding rooftop extensions in the Netherlands. Therefore, the general provisions of Title 9 of Book 5 of the Dutch Civil Code (“DCC”) concerning apartment rights apply. Since rooftop extensions will change the contours of the building, a modification of the deed of division is required according to the DCC. There are two methods by which modification can take place under Dutch law. In the first method, all condominium owners must be parties to the deed, thus requiring unanimity.⁴ In the second method, the Association of Owners is a party to the deed representing the owners of the building based on a decision with at least a four-fifths (80%) majority of the owners.⁵ However, the second method cannot be followed if so-called acts of disposition (beschikkingshandelingen) are involved. This includes decisions about intended (major) changes to (the construction of) the building, alienation, or a complete dissolution of the division into apartment rights. In both methods, consent from mortgage holders or other limited rights holders, if any, is also required.

Unanimous cooperation and consent of all owners

In view of the Dutch legislation there is uncertainty in the Netherlands whether the second method can be followed when realising a top-up. The question is whether rooftop extensions qualify as an act of disposition? On February 24, 2023, the Supreme Court (Hoge Raad) ruled that converting a common part of a building into a private part of a building (allocation to one of the condominium owners) is an act of disposition (and therefore is not a management act) meaning that the Association of Owners is not competent to represent the condominium owners based on a decision with at least a four-fifth (80%) majority of them, but rather the community of owners together, thus requiring unanimity.⁶ Despite differing opinions in the literature⁷, it appears that rooftop extensions in the Netherlands are only possible with unanimous cooperation and consent of all owners.