Doubt clause in model HOA regulations does not hold up

In practice, a doubt clause in the model regulations of a Homeowners' Association (VvE) often does not hold up. As soon as the interpretation of the deed of division is clear based on objective standards or existing case law, the General Meeting of Owners may no longer decide on its own whether a component is common or private. A decision relying solely on such a doubt clause may then be void. The lesson for entrepreneurs and property owners: do not rely blindly on a doubt provision in standard regulations, but have the deed of division itself carefully interpreted.

What is a doubt clause in the model regulations?

The deed of division establishes which parts of a building common and which private . This distinction is important, as it determines, among other things, who is responsible for maintenance and who bears the costs. In practice, however, a deed is not always completely clear.

Traditionally, the model regulations for an Association of Owners included a doubt clause . The rationale behind this is that if there is doubt as to whether something is common or private property, the general meeting may decide. Such a provision appears in both older model regulations and the 2017 model regulations. However, practice shows that such a clause offers far less certainty than many entrepreneurs believe.

A few concepts to keep sharp:

• Deed of division – the notarial deed that legally divides the building into apartment rights, with an accompanying division drawing.
• Common area – parts that belong to all owners jointly (such as load-bearing walls, the roof, or the stairwell).
• Private section – the part belonging to a single apartment right and over which that owner has exclusive control.
• Doubt clause – the provision that would allow the meeting to decide when it is unclear whether something is common or private.

Why does the doubt clause not hold up?

The core of the problem is that a doubt clause only works if actual doubt exists. As soon as the interpretation of the deed of division is clear through objective means or existing case law, there is no longer any legal doubt. And then there is no room for the meeting to make a decision itself.

In a published case, this concerned decking on balconies. The general meeting had decided, based on the doubt clause, that the decking was common property. The judge thought otherwise: previous case law showed that balconies (and the accompanying decking) had to be classified as the private area in this instance. According to the judge, there was therefore no question of doubt, meaning the doubt clause was not applicable. The general meeting simply did not have the authority to decide otherwise. Consequently, the decision to include a deviating provision regarding this in the house rules was void.

The objective interpretation of the deed of division

In a dispute concerning the interpretation of a deed of division, an objective standard. The judge does not look at what the parties claim to have intended in retrospect, but at what is discernible to third parties from the deed itself and the accompanying division drawing. In doing so, attention is paid to, among other things:

• the indications that can be derived from the deed of division and the division drawing itself;
• the intention of the person(s) who proceeded with the division, insofar as this is apparent from the deed;
• the legal consequences to which the various possible interpretations would lead.

It is important that only information that ascertainable by third parties , which in practice primarily means what is apparent from public registers. This approach is laid down in the 2017 Model Regulations in a provision that effectively summarizes the existing case law of the Supreme Court regarding the interpretation of deeds of division. Consequently, in many situations, the traditional role of the general meeting in cases of doubt has shifted to an objective, legal interpretation that is ultimately determined by the court.

What does this mean for the Homeowners Association?

For a Homeowners' Association and its members, there are a few concrete consequences:

• A meeting resolution offers no certainty if the interpretation of the deed has already been objectively established. The resolution may prove to be void.
• The deed of division is leading, not the board's own interpretation or a majority of the members.
• The common or private nature of a component determines who bears the maintenance and costs – an incorrect decision can therefore lead to financial disputes.
• Internal regulations may not deviate from what the deed of division and the rules of division already stipulate. If they do, that provision shall not stand.
• In cases of genuine uncertainty, it is wise to seek legal advice before the meeting makes a decision, rather than risking legal proceedings afterwards.

What to do if in doubt about common or private property?

Is a dispute rising within your Owners' Association regarding a roof terrace, a balcony, a storage unit, or a pipe? Then work step by step:

1. Start with the deed of division and the division plan. That is the starting point, not the internal regulations or a previous meeting resolution.
2. Test against objective standards. Consider what an outsider can deduce from the public documents, not what individual members thought of it at the time.
3. Check the case law. For common elements (such as balconies and decking), a pattern has often already emerged in rulings.
4. Only make a decision when there is genuine room for doubt. Otherwise, you risk a void decision and an unnecessary procedure.
5. In doubt? Have it reviewed. A quick legal check is usually much cheaper than a dispute afterwards.

Points to consider when working with model documents

This issue indirectly reveals a broader risk: the indiscriminate use of model agreements and model regulations is by no means always without danger. Many entrepreneurs place their trust in model documents downloaded from the internet, even though those documents do not always stand up to legal scrutiny and, moreover, quickly become outdated.

Therefore, take the following into account:

1. Keep templates up to date. Case law and legislation change; an outdated template may contain provisions that no longer hold up.
2. Tailor the template to your situation. Especially for business agreements, a standard document often proves insufficiently suited to practical application.
3. Have important documents checked. A quick review by a lawyer prevents you from facing surprises later on.

The main conclusion is that you should exercise caution when using model documents. Do you want certainty? Then submit your agreements and regulations to a qualified legal expert for review, or have your contracts custom-made . We would be happy to review your documents and adapt them to your specific situation.

Frequently asked questions about the doubt clause in a Homeowners' Association

What is a doubt clause in model regulations?

A doubt clause is a provision that appears to give the general meeting of a Homeowners' Association the authority to decide whether a component is common or private, if the deed of division is unclear on the matter. In practice, that clause only applies if there is actual doubt.

May the Owners' Meeting decide for itself whether something is common or private?

Only if the deed of division is genuinely unclear on this matter. If the interpretation has already been established according to objective standards or through existing case law, the meeting does not have that authority, and a deviating resolution may be void.

What does the explanatory provision in the 2017 Model Regulations entail?

The 2017 Model Regulations contain a provision that summarizes the line of reasoning in case law regarding the interpretation of deeds of division: in case of doubt, the most plausible interpretation is determined according to objective standards, based on what is evident to third parties from the deed and the division drawing. In practice, as a last resort, this is determined by the court.

Can a decision of the Owners' Association be void?

Yes. If the meeting adopts a resolution that conflicts with the objective interpretation of the deed of division – for example, by declaring something common property that is private property according to case law – then that resolution may be void.

Does the deed of division take precedence over the house rules?

Yes. The house rules may supplement the deed of division and the rules of division, but may not deviate from them. A provision in the house rules that conflicts with the deed shall not stand.

Who decides whether a balcony or roof terrace is communal or private?

This follows from the deed of division and the division drawing, interpreted according to objective standards. In the event of a dispute, the court ultimately decides; regarding elements such as balconies and decking, there is often already case law on this matter.

Who bears the maintenance and costs?

That depends on whether a part is common or private. Maintenance and costs of common areas are, in principle, the responsibility of the joint owners; private areas are for the individual owner concerned. That is precisely why a correct interpretation of the deed is so important.

Is a model set of regulations from the internet sufficient?

Not without further ado. A standard template is often not tailored to your situation and can become outdated. Therefore, have important documents reviewed and, where necessary, amended by a lawyer.

Need help with a HOA dispute or drafting your documents?

Are you unsure about the interpretation of a deed of division, a resolution of the Owners' Association, or another document regarding your property? Or would you like to have your agreements and regulations reviewed instead of relying on a standard template? Our legal experts are happy to assist you with practical and concrete advice and, where necessary, with legal assistance in the event of a dispute.

Simply schedule an appointment via our intake, and we will look at your situation together and discuss the next steps.