Non-existent resolutions and negative resolutions of a homeowner association

Abstract

The issue of non-existent and negative resolutions of bodies of legal persons or entities referred to in Article 331 § 1 of the Civil Code causes a great deal of controversy in legal scholars’ writings and jurisprudence. Their essence will be discussed in this article. The basic problem is to determine whether a member of a homeowner association is entitled to bring an action to establish the non-existence of a resolution, and whether both positive resolutions and negative resolutions that produce legal effects may be subject to judicial review. The answer should be affirmative. It offers the possibility of exercising supervision over the functioning of a homeowner association. A contrary motion deprives members of a homeowner association of any legal protection and distorts the essence of such a community. One has to have regard for the fact that the purpose of an action to repeal a resolution adopted by owners of premises is to nullify the legal effects resulting therefrom and, thus, to eliminate the legal relationship that arose as a result of adopting the resolution. Therefore, a specific legal effect must occur to be able to speak of a negative resolution.

Keywords

• homeowner association
• non-existent resolution
• negative resolution
• absolute majority
• relative majority
• judicial review