ALIENATION OF AN APARTMENT IN AOWNERSHIP BY FLOOR AT THE REQUEST OF THE MEMBERS OF THE APARTMENT OWNERS COMMUNITY

Abstract

The obligation of aapartment owner to sell his apartment against his will, under the conditions prescribed by law, which results in the termination of membership in the apartment owners community owners, represents the most rigid restriction on the authority to dispose of the apartment. This restriction on disposal, which goes as far as its abolition, represents a sanction for the most serious forms of neglect of the obligations of the apartment owner, including his reckless behavior, which results in the impossibility or intolerability of coexistence in the apartment ownerscommunity. The authorization of apartment owners to demand the forced sale of an apartment , as a last resort, should be applied exceptionally, when other civil and public law means and the authorizations of owners by floor cannot eliminate the problems that lead to the impossibility of the functioning of the apartments owners communityand when it is justified for apartment owners to exclude from that community who, by neglecting his obligations or abusing his rights, endangers or makes housing unbearable for other owners by floor. In fact, the essence of this sanction should not be reflected in its application, but in the possibility of application, i.e. in its preventive effect in terms of respecting basic obligations towards other apartments ownersbyand towards the housing community. This sanction is provided for in the laws of Slovenia and Croatia, as well as in the laws of Germany, Austria, Italy, some states of the USA... It is interesting that in the quasi-legal system in Kosovo and Metohija, this institute is also provided for, and in a very imprecise manner, which allows for its inappropriately broad application, without an explicitly provided for court procedure in which the existence and justification of the reasons would be determined. This institute is not provided for in the legal system of Serbia. We are of the opinion that it should be provided for de lege ferenda, with the legal specification of the mandatory conditions under which the owner by floor can be forced to sell the apartment in ownership by floor and with a mandatory court procedure for determining the fulfillment of these conditions and the exercise of this right of the members of theapartment owners community.