Nullification of a resolution
A resolution adopted by the Association of Owners or another body of the Association of Owners is subject to nullification if:
- it is adopted contrary to the principles of reasonableness and fairness (to be observed in respect of each other by the Association of Owners and the parties involved);
- it was not adopted in accordance with the requirements set in the deed of division, or
- it conflicts with the internal regulations (note that a resolution contrary to the deed of division or the law is void).
How to request nullification of a resolution adopted by the Association of Owners
A resolution can be nullified by a judgment of the subdistrict court of the district in which the building is situated. A request to this end must be made within one month after the day on which the person making the request took or could have taken note of the resolution. This can be, for example, after the meeting or after receiving the minutes. The period for submitting such request is therefore short and if it is exceeded, the request will be declared inadmissible. The voidability will have been established in this case. The period for bringing an appeal against the order of the subdistrict court is short as well: a period of one month after the date of the final decision also applies here. If an order for nullification is submitted to the subdistrict court, this court will be authorised to suspend enforcement of the order until a final decision will have been made on the request for nullification.
The petition for nullification of a resolution
A request for nullification of a resolution is made by submitting a petition to the court registry. This petition must at least state what resolution was adopted, when, and why it should be nullified. The court registry will summon the person making the request, all persons with voting rights, and the Association of Owners to appear at the hearing. The persons with voting rights (in their capacity of interested parties) and the Association of Owners (in its capacity of respondent) can file a defence.
This defence does not necessarily have to state that they do not agree with the request, but may also state that the resolution will indeed have to be nullified.
When will a resolution adopted by the Association of Owners be nullified
The assessment to be made by the subdistrict court will concern the question as to whether the Association of Owners, in view of all interests involved in the resolution, has been able to reach a decision in all reasonableness. If this is the case and there are no other reasons for nullification, the court will uphold the resolution. If this is not the case or if there are other reasons for nullification, the court will nullify the resolution. In many proceedings, therefore, it all comes down to providing such a picture of the facts and circumstances that the court will judge that – in view of those facts and circumstances – the Association of Owners has indeed not been able to reach a decision in all reasonableness. Many members of an Association of Owners therefore opt to have the petition drawn up by a lawyer specialising in Associations of Owners.