VvE law and outdated division deed - Free advice

Questioner

I own an apartment in a former service flat. There is a VvE (with mandatory membership) and a Service Association (former Cooperative with voluntary membership). The deed of incorporation states that 'the board of the cooperative association acts as a board'. This is determined in the deed of division of 22 November 1972 At the time, there was a linked membership between VvE and Coöperatie. In 1972, there was also a kitchen with kitchen staff who provided the meals. In the meantime, the kitchen has been closed down and dismantled. The judge (also on appeal) has now determined that there is no mandatory membership of the Dienstenvereniging (formerly cooperative) and which mandatory membership, according to the deed (incidentally), has never existed. Now there is a situation in which there are members of the VvE who cannot elect the board of the VvE (because they are not members of the Service Association). Is the deed, or at least article 20 (article 20: 'The association is managed by a board, as such the board of the cooperative association acts.') null and void? Can the VvE decide to implement a more modern deed of division, because this contains even more articles that are more in line with the current times? Is the board obliged to provide a solution?

Lawyer

The regulation of division is outdated and is based on the incorrect assumption of mandatory membership of the Service Association, which creates difficult to answer questions. It would therefore certainly be a good thing to change the regulation and thereby connect it to the current factual situation and the current legislation. As long as the regulations have not been amended, it must be examined how the old regulations should be applied in the current legislation. In my opinion, the current article of law that stipulates that the board must be appointed by the owners prevails over the text of the regulations (article 5:131 paragraph 2 BW), so the owners can (actually must) simply appoint the board jointly.

Lawyer

The provision that the board of the service association acts as the board of the VvE may be null and void, since the law stipulates that the board is appointed and dismissed by the meeting of owners, i.e. the members of the VvE. The board of the service association is not only appointed by the owners, but by all residents. It is wise to replace the old division regulations with the current version by means of an amendment to the deed. This will resolve a lot of issues that are not (properly) regulated in the old regulations. I am happy to assist the VvE with the amendment of the division deed. I specialize in VvE law. Please feel free to contact me without obligation and free of charge if you have any questions or require legal assistance.

Questioner

Is it an option to hold a meeting with 10 or more members and elect a board in this meeting? If so? Do we then have to change the data at the Chamber of Commerce? Is this possible without the board of the Service Association?