A new legal for the « immeubles en copropriété » (1st part)
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On November 2012, the Law Reform Commission made a report and proposed a new regime for the law of co-ownership. It is proposed that the current Articles 664 to 664-96 of our Civil Code be repealed and replaced by new Articles 664 to 664-90.
This article makes a brief analysis of both the existing Articles 664 to 664-96 of the Civil Code and the proposals made by the Law Reform Commission.
A: The origin of the existing Articles 664 to 664-96 of the Civil Code
The existing Articles 664 to 664-96 of the Civil Code was incorporated in our law during the year 1978 by Act 37/ 78. It was a copy-paste exercise based on the French law of the 10th July 1965 « et son décret d’application du 17 mars 1967 ».
B: The main criticisms against the current Articles 664 to 664 -96
The existing law was adopted without prior consultations with the practitioners, viz, the syndics, lawyers etc. It was also adopted without taking into account the local customs. For instance, one can find words like « les coffres, gaines et têtes de cheminées, loggias, etc. » embodied within almost all « règlements de copropriété ».
Our present Articles 664 to 664-96 were enac-ted during a period when there were only a handful number of «immeuble collectifs». But, during the last two decades, many « immeubles collectifs », commercial complexes, « morcellements» have grown like mushrooms all over Mauritius.
The present Articles 664 to 664-96 have remained statics during the last 3 decades. On the other hand, there has been new development in the in « secteur immobilier ». For instance, there has been the creation of the Investment Real Scheme (IRS) and the Real Estate Scheme (RES). In practice, the management of the IRS and RES is done through the legal mechanism of the current Articles 664 to 664-96 of the Civil Code and the « règlement de copropriété » or by the « cahiers des charges » which are themselves based on the current Article 664 to 664-96.
A new concept like « condominium »is presently being coined.
The current Article 664 to 664-96 of the Civil Code is characterized by an excessive « formalisme ». For instance, before major decisions are taken by the general assembly of co-owners, the here under mentioned issues must first be thrashed out;
- Who must convene the general assembly,
- The delay to convene the generally assembly,
- The ways in which the assembly must be convened,
- The items on the agenda,
- The drafting of resolutions, if any, The issue of the « quote parts » of each co-owner,
- The « Président de séance »,
- The scrutateurs.
Very often, the real issue for which the general assembly has been convened cannot be debated upon in as much as too much energy and time are wasted due to the excessive « formalisme ».
The excessive « formalisme » encourages futile disputes which are very often detrimental to the proper functioning of the « copropriété ».
vi. Another criticism against our current law is that the same law applies to the « immeublescollectifs » considered to form part of the social housing (for instance, the majority of the housing units built by the National Housing Co. Ltd, i.e., the Malaysian I, Malaysian II, the Very Low Cost and the Core housing projects). The same law applies to the luxurious security gated IRS and RES villas. The same law applies to the small « copropriété » as well as to the large « copropriété »
The main objectives the of proposed new regime for « copropriété »
The main objectives of the proposed new regime for « copropriété » are, inter alia,
- To reduce the excessive « formalism » to its minimum,
- To assist the « copropriété »in difficulties,
- To create a set of peculiar rules which will be applicable to small « copropriété » as well as to the « copropriété» which forms part of the social housing.
