VvE Contesting Decisions | Legal Aid

Questioner

This concerns a petition to annul a decision taken at an (additional) AGM of an Owners' Association. The subdistrict court judge stated in his order: “It has been established that the applicants were present at the additional members’ meeting on [date] or were represented there. This means that they were informed of the decision taken at that meeting or were able to be informed of it. The applicants therefore did not request the annulment of this decision in a timely manner. The applicants’ request for annulment of the decision cannot therefore be admitted. The subdistrict court will therefore not assess the decision against the statutory or statutory provisions that regulate the making of decisions, reasonableness and fairness and the regulations.” We, the applicants, state that an owner represented by proxy – an owner who is therefore not physically present at an AGM – only becomes aware of a decision taken at the AGM when he or she sees the minutes of the AGM and that the stated term (one month after the day on which the applicant became aware of the decision) only commences on the day on which the applicant physically has the minutes in his or her possession. Who is right?

Lawyer

The position of the subdistrict court judge is correct. There is no difference, not even in decision-making, between an owner who is present in person or an owner who is represented by proxy. The proxy is expected to report to the principal as soon as possible; the fact that this apparently did not happen immediately cannot be used as an argument in the annulment procedure.

Questioner

Thank you for your quick reply. So an authorized representative would have a reporting obligation? That is remarkable, because the minutes are intended for a report of an AGM. Moreover, something completely different is stated here: “Request for annulment of decision A decision taken during the meeting is not immediately final. If an owner believes that a decision is in conflict with legal or statutory provisions that regulate the creation of decisions, if the decision would be in conflict with the internal regulations or with reasonableness and fairness, an owner can submit a request to the subdistrict court to annul a decision. This must be done within 30 days after the owner has received the minutes. Only when this period has expired and no one has submitted such a request, the decision is final. The decision is then binding on all members.” https://www.woonplus.nl/vve-beheer/alles-over-een-vve/besluitvorm-1/ Who is right?

Lawyer

See Article 5:130 paragraph 2 of the Dutch Civil Code: 'The request for annulment must be made within one month after the day on which the applicant became aware or could have become aware of the decision'. The problem lies in the last words 'or has been able to take note'. These words were added to clarify the term, if the sending (or receiving) of the minutes were decisive, then legal uncertainty would arise because they are not always sent quickly. Unfortunately for you, the position of the subdistrict court judge is correct, the proxy took note at the AGM, this knowledge is attributed to you. The fact that the proxy did not inform you is not relevant in this case.

Questioner

Thank you for your quick reply. Strange, that difference in interpretation between on the one hand the judge and the Legal Aid Shop and on the other hand Woonplus and the applicants. The term is clear in both cases (AGM or receipt of the minutes); so that cannot be the problem. In our case, the possible voidability of the decision only became apparent from the minutes, which showed that more voters were counted in favour of the decision than the number of members present or represented at the AGM. Apparently the board has dragged out the handling of our objections long enough.

Lawyer

The board is accountable to its members, so you can hold the board accountable for this at the next meeting.

Questioner

We have also tried to address the board at a subsequent meeting. Our objections were not dealt with by the board and we were referred to court by the board.

Lawyer

Please contact me directly tomorrow

Lawyer

I agree with André