Substitute authorisation for new construction in the garden
Apartment owners build a B&B without a formal VvE resolution
Two apartment owners in Purmerend build a B&B on the site of old garage boxes in their garden. The owners' association (VvE) — with only three members — objects and seeks removal. The court of appeal upholds the order of the subdistrict court and grants the substitute authorisation.
The plot was divided into three apartment rights in 2014. The deed of division contained an addition to Section 25 of the 2006 Model Regulations: the private sections may be operated as a guesthouse or room-rental business. The owners discussed their B&B plans in the association's meetings from 2021 onwards. Initially, the other members raised only practical reservations about parking and privacy.
Only in June 2023 — after the garage boxes had already been demolished, the concrete poured and the walls erected — did the chair of the association formally turn against the construction. The association demanded removal and announced a penalty. The owners then applied to the subdistrict court for a substitute authorisation.
Court of appeal: construction on a private section requires no amendment of the deed of division
The association argued that the garage boxes had deliberately been kept outside the division and that the construction disturbs the fractional shares and maintenance obligations. The court of appeal rejects this. For the question of what is private and what is common, only the objective interpretation of the division documents counts. The garden is marked on the drawing with a thick line — that is private. The garage boxes stood in that garden and were not separately designated as common. Third parties may infer from this that everything within that line belongs to the private section.
Because the construction takes place within the existing private section, no shift in property rights occurs. The deed of division does not need to be amended. Section 17 of the Model Regulations — concerning common parts — relates to "the building involved in the division", not to a new outbuilding in the garden. The association therefore does not acquire any additional maintenance obligations.
The operation as a B&B likewise requires no separate consent. The addition to Section 25 permits operation as a guesthouse or room-rental business on "private sections" — without limitation to the dwelling. Finally, the association also had no reasonable ground for refusal: displeasure about the absence of a formal resolution is insufficient, all the more so because the other members had been aware for years and objected only late.
What does this mean for apartment owners who want to carry out building work?
This judgment confirms that new construction on the private section is possible by way of a substitute authorisation as long as no shift in property rights occurs. The objective interpretation of the division documents is decisive — not what the parties dividing the property intended or discussed at the time. Apartment owners who wish to build an outbuilding would do well to verify that their building plans fall within the private section as drawn.
The court of appeal also makes clear that a formal association resolution is not always required to take the route of Section 5:121 DCC. In a small association where the voting ratios are fixed, the owner may go directly to the court. More on association disputes and apartment law can be found on the Real Estate & Construction page. See also the earlier publication on audit-committee defects in association resolutions.
Frequently asked questions
When is an amendment of the deed of division required for building work?
An amendment is required if the building work leads to a shift in property rights — for example, if common ground becomes private, or if the boundaries between apartment rights shift. Construction within the existing private section requires no amendment, even if the appearance of the complex changes.
Can an association member apply for a substitute authorisation without a formal meeting resolution?
Yes, where it is established that a formal request to the meeting would be pointless. In a small association where the voting ratios are fixed and the other members have already spoken out against the plan, the owner need not await a meeting resolution (cf. Supreme Court, 25 June 1993, ECLI:NL:HR:1993:ZC1022).
May an apartment owner operate a B&B without the association's consent?
That depends on the deed of division and the applicable model regulations. In this case the deed expressly permitted operation as a guesthouse or room-rental business on all private sections. Without such a provision, the meeting's consent is generally required under Section 25 of the 2006 Model Regulations.
ECLI:NL:GHAMS:2026:774, Amsterdam Court of Appeal, 17 March 2026
Cited case law
Supreme Court: ECLI:NL:HR:1993:ZC1022
Courts of Appeal: ECLI:NL:GHAMS:2026:774