Unit Owners’ Associations (HOAs) contact us from time to time with a similar question. Does a notary public have to certify every change to the statutes? The situation was not clear for some time after the new Civil Code came into force. But now everything has been clear for a couple of years.
Can such a formality be avoided when, on the other hand, the new Civil Code requires modifications to the statutes? The High Courts have finally unified their interpretation. A notary is not needed in most HOAs, and the HOA will save considerable expenses.
The Civil Code itself has been a source of confusion. It has indeed introduced the obligation to have a notarial record of changes to the articles of association of the JVU since 2014. However, the question arose as to whether this obligation would also apply to older SVJs, which were used to a less strict regulation. However, these were completely omitted by the new Civil Code, so the law did not give a clear answer. The classic joke that two lawyers make three legal opinions could have come into play. No one was sure, so out of caution it was recommended to make notarial entries even for older JVUs, although this was very burdensome. The cost to the association was often in the tens of thousands of crowns.
That is why some SVJs did not use notaries and risked failure of registration. The courts have taken different positions on this issue. Some accepted the change, others did not. For example, in Prague or Ostrava, the courts rejected such statutes and the SVJ had to repeat the whole process. This is deadly for the nerves of the officers of such a JVU when a meeting is being prepared for a long time.
Even the High Court in Olomouc supported such a view and rejected the distinction between SVJs before and after 2014. It insisted on a notarial record for all of them.
However, the Prague High Court came to a different conclusion and accepted the arguments of the older SVJs. Subsequently, the judges of the two High Courts met in a working session and finally agreed to be consistent and at the same time accommodating to the older SVJs. This decision seems to be coming to fruition and there are no more cases of rejection of the statutes.
Therefore, the prevailing opinion was that the participation of a notary is only necessary for SVJs already established under the NCC, i.e. after 1 January 2014. Others do not need to invite a notary, unless they have such an obligation beyond the then law directly in their statutes.
This is a welcome relief for the vast majority of SVJs, which is reasonable and commendable.
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Tip: Don’t underestimate the statutes of your unit owners’ association (HOA) or housing association. It is the governing rules or even the constitution of your condominium. In addition to the mandatory elements, it is always a good idea to include a few practical provisions for specific situations that may arise in the building.
We will review your HOA or housing cooperative bylaws or we will write them up for you from scratch. We will always ensure that they comply with current legislation. Our bylaws are always tailored to the needs of the residents of the building. We can also set up your HOA or housing association on a turnkey basis. We will arrange everything quickly, flawlessly and at pre-determined prices. You can pay only after the service has been provided.
The Statutes do not constitute an immutable dogma. If the need arises to change them (for example, the length of the term of office or the voting method, etc.), they must again be approved by a majority of the unit owners. However, the previous bylaws may specify a higher number of votes for approval of amendments. In such a case, however, there is a risk that certain unit owners will block the amendments on purpose
A written form is sufficient to amend the bylaws, and only the assembly is competent to amend the bylaws. If a circumstance that is a mandatory part of the statutes changes, it is obligatory to amend the statutes (e.g. the registered office of the JVU). Similarly, if the statutes are in conflict with the law as a result of an update of the Civil Code (or another law), the statutes would be in conflict with the law. However, the change may also be purely voluntary, e.g. adding rights and obligations of the members of the HOA.
Tip: The bylaws of the unit owners’ association are the basic document in an apartment building. It is worth at least looking at them when you buy or rent a new apartment and if you are at the birth of new statutes or their changes, then you should make sure that they contain all the elements provided by law. Which ones are? We have covered this in a separate article.
Dostupný advokát team of online lawyers will solve it for you.
We will review your HOA or housing cooperative bylaws or we will write them up for you from scratch. We will always ensure that they comply with current legislation. Our bylaws are always tailored to the needs of the residents of the building. We can also set up your HOA or housing association on a turnkey basis. We will arrange everything quickly, flawlessly and at pre-determined prices. You can pay only after the service has been provided.
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