As POMIDA states in its letter, the need to facilitate citizens’ real transactions, especially in view of the establishment of “tax-free” parental benefits and the need to complete the training and operation of of the National Land Registry, in view of the general application of the “Building Identity” from 1.1.2022, necessitate the immediate and urgent legislation, with an addition to the Ministry of Interior bill filed in the Parliament, the possibility of solving the following serious problems that concern a large number of owners of horizontal of properties in our country’s apartment buildings and hinder real transactions, parental benefits and donations and the completion of the National Land Registry:
- Right to unilaterally amend the establishment of a property horizon when, in accordance with Law 4495/2017, it is proven that there is a difference in the surface, in favor or against a neighboring horizontal property. requires its amendment.
- Solving the problem of invalid parking spaces with millimeters in the piling of apartment buildings.
- Possibility of unilaterally abolishing the right to “rise” in existing buildings.
The full text of the letter is as follows:
To the Minister of Finance Mr. Christos Staikouras
To the Minister of Environment and Energy Mr. Kostas Skrekas
To the Minister of Justice Mr. Costas Tsiaras
To the Deputy Minister of Finance Mr. Apostolos Vesyropoulos
To the Deputy Minister of Environment Mr. Nikos Tagaras
To the Deputy Minister of Lands, Mr. Theodoros Livani
Here Athens, October 12, 2021
TOPIC: Resolving problems of horizontal property owners that impede real transactions, parental benefits and Land registry.
Dear Mr. Ministers
The need to facilitate citizens’ real transactions, especially in view of the establishment of “tax-free” parental benefits and the need to complete training and operation of the National Land Registry, in view of the general application of the “Building Identity” from 1.1.2022, necessitate the immediate and urgent legislation, with an addition to the Ministry of Interior bill filed in the Parliament, the possibility of solving the following serious problems that concern a large number of owners of horizontal properties in our country’s apartment buildings and hinder real transactions, parental benefits and donations and the completion of the National Land Registry:
- The right to unilaterally amend the constitution of a horizontal property when, during the settlement with Law 4495/2017, a difference is found in the area, in favor of or against a neighboring horizontal property, from the approved plans of the building permit, but without affecting shared and jointly owned areas of the building.
With par. 5 of article 98 of law 4495 /2017, as amended by Law 4759/2020, remedied the insurmountable problem faced by tens of thousands of owners of horizontal properties throughout Greece, whose apartments had some difference in their surface in relation to the approved urban plans, in favor of or in weight of the common areas of the apartment buildings, something which – until the adoption of the aforementioned beneficial regulations – required a modification of the composition of horizontal property, which requires the consent of all co-owners of the building, which is completely impossible in the vast majority of cases.
However – and despite the above regulations – there are a lot of cases where the difference in the surface of the horizontal property that is to be subject to the provisions of Law 4495/2017, has not resulted in favor or to the detriment of the common areas of the apartment building, but for or to the detriment of one or more adjoining horizontal properties. These cases are not covered by the above regulations, with the result that it is not possible to unilaterally amend the constitution, but requires a unanimous amendment of all the co-owners, although in fact, the problem that has arisen concerns only the owners of the affected horizons properties.
Indeed, in most of these cases – which have almost always resulted from the construction of the apartment building – the plans attached to the establishment of horizontal ownership reflect the actual situation, but there are deviations in relation to the plans approved by the town planner. It is obvious that all these cases are less problematic than those in which common areas of the building have been occupied and affect much less or not at all the relations of the co-owners with each other, as well as the form of the building.
WE PROPOSAL to add a new paragraph to article 98 of Law 4495/2017 stipulating that: “In the case of differentiation of the outline of independent properties from the approved plans of the building permit in favor of or to the detriment of a neighboring horizontal property, as long as shared and jointly owned areas of the building are not affected, the owners of the independent properties affected by this differentiation, have the right to proceed with a notarial deed amending the deed establishing the horizontal property, in order to integrate the subject to the provisions of this space in their horizontal ownership or to exclude it from it, without the cooperation of all the co-owners, whose consent is presumed. If the differentiation has been implemented during the construction of the building, the owner of independent property who has a legal interest can unilaterally carry out the above notarial deed of modification.”
- The deviation of the dimensions of the horizontal property up to 2% in total from the floor plan of the relevant deed of incorporation, does not require its amendment.
During the drawing up of notarial acts of real estate transfer, the phenomenon of deviations in the dimensions of horizontal properties from the measurement recorded in the establishment of horizontal properties, in relation to a later measurement, is observed. The specific deviations are usually small (less than 2% of the dimensions indicated on the plan of the proposal) and are due either to not measuring the walls or to the measurement methodology.
In these cases, the horizontal properties in question are effectively put “out of business” as in order to correct their actual area, a modification of the constitution is required with the cooperation of all the co-owners. This phenomenon is pronounced in the older apartment buildings with a number of horizontal properties where the amendment of the constitution with the cooperation of all is impossible.
WE PROPOSAL to add a new paragraph to the article 98 of Law 4495/2017 stipulating that: “Deviation of horizontal property dimensions up to 2% in total from the floor plan of the deed establishing horizontal properties is not taken into account for the measurement of horizontal property and no modification of the relevant act of incorporation.”.
- Possibility of unilateral abolition of the right to “rise” in existing apartment buildings.
In multi-apartment buildings which, by constructing them in the previous decades, the builder or plot owner usually kept as a special horizontal property a percentage of co-ownership on the plot, in order to assign it to future floors (right to rise), with the right to unilaterally redistribute the percentages of co-ownership of this right to the plot ( plot). In the vast majority of these cases, the building factors were exhausted from the beginning or were reduced later, with the result that there is no longer any possibility of expanding the building in height. However, the above-mentioned percentage of co-ownership, while in reality it is worthless and of no real use, is taxed to ENFIA and other capital taxes as an independent asset because it is still characterized as part of a plot of land with an exhausted building factor.
“Therefore, in order to avoid the relative unfair tax burden as well as the bureaucratic formalities entailed by the registration of their rights, most of the owners of such co-ownership percentages have not declared them in the National Land Registry, with as a result, they appear today as an “unknown owner”, while after the finalization of the first registrations they will go to the Greek State, which will thus become a co-owner of the “right to rise” in thousands of apartment buildings throughout the country! This will create real chaos both for the co-owners of apartment blocks, since the State will have to participate and vote (!) in their General Meetings, and for the State, which will be called upon to manage all these meaningless property “rights”.
WE RECOMMEND that a new paragraph be added to article 98 of Law 4495/2017 stipulating that: “The owner of horizontal ownership of the right to rise is entitled to abolish it completely by transferring the corresponding percentage of the undivided co-ownership of the parcel of land to another property of his or to the owner of another horizontal ownership of the same building, by unilaterally amending the deed establishing horizontal ownership, without requiring the consent of the other uninvolved co-owners of the building.”
- Solving the problem of invalid parking spaces with millimeters in the block of apartment buildings.
With the decision numbered 23/2000 of the Plenary of the Supreme Court, many thousands of parking spaces that had been set up as independent horizontal properties in the open space of a gated apartment building were deemed invalid, even these had been set up before the entry into force of Law 960/1979 and 1221/1981! However, the jurisprudence finally vindicated all those who had paid for and obtained such invalid parking spaces in the parking lot, with the help of article 182 of the Civil Code, according to which an invalid deed can be converted into another valid one, with the conditions of this article, judging that the invalid establishment and transfer of the parking space as an independent horizontal property, may be valid as a valid grant of the right to exclusive use of this space.
The result of the judicial annulment of these parking spaces was that (even if it was converted into a right of exclusive use), the percentage of undivided co-ownership on the plot that corresponded to thousands of invalid parking spaces. This problem is of less practical importance in the case that the user of the parking space also had another horizontal property of main use within the same apartment building, but it is much more acute when the user has no other horizontal property within the same apartment building and consequently is not entitled to nor does he have the right to exclusive use of this parking space. The legal issue in question becomes even more serious under the status of an operating Land Office, given that the co-ownership percentage corresponding to the invalid parking spaces should be included in the receiver of the unallocated co-ownership percentage and registered as “unknown owner” as a result after the finalization of the first registrations to fall to the Greek State!
WE PROPOSALto add a new paragraph to article 98 of Law 4495/2017, stipulating that:“In cases where invalid parking spaces are established as independent horizontal properties in the entrances of apartment buildings, these are considered as a right of exclusive use and the percentage of their undivided co-ownership automatically increases the percentage of co-ownership of the main use horizontal property of that owner in which defacto correspond. The owner of the main use space in this apartment building is entitled to make a unilateral modification of his horizontal property, incorporating the thousandths of the parking space into his property and making the space an annex for the exclusive use of its respective owner. If the owner of such a space does not own a main use space, he is entitled to transfer this space as an annex for exclusive use to any owner of a main use space in the same building. The relevant correction in the cadastral sheets can be carried out by the manifest error procedure.”
The President
Stratos I. Paradias
Lawyer A.P.-President UIPI
The Secretary General
Anastasios G. Vappas
Lawyer A.P. -y.D.N.
