Is an association of co-owners a consumer or not?

1. The 75% non-professional affectation criterion

To be considered a consumer, 75% or more of the shares in the common parts must be allocated to plots that cannot have a professional destination according to the co-ownership statutes.

The starting point for assessing the "consumer" criterion is therefore the basic deed and the plots laid down in this deed.

2. Consequences for the ACO as a consumer

ACOs deemed to be consumers may rely on the doctrine of unfair terms in consumer contracts.

The list of terms and conditions that are in any case unfair (and therefore null and void) in a contract between an ACO as a consumer and a company can be found in the CEL. 

For example, a company may not "restrict the consumer's right to terminate the contract where, in the context of a contractual warranty obligation, the company fails to honor its commitment to repair or replace the good or to do so within a reasonable time."

This provides an important additional protection for ACOs who are considered consumers, for instance when entering into a maintenance contract for lifts or for the provision of fire extinguishers, or contracts for repair works on the communal roof.

In addition, suppliers to an ACO – consumer shall be obliged to provide a free supporting document to the ACO if no invoice or estimate was provided to the ACO. This supporting document must then in fact contain the same information that can be found on an invoice.

3. What about the ACO to be considered an undertaking?

Also in the other cases, when the ACO is to be considered an undertaking, the CEL provides for a list of prohibited unfair clauses applicable to undertakings.

Thus, when an ACO enters into an agreement with an undertaking, and when more than 25% of the shares in the common parts are allocated to plots that can have a professional affectation according to the co-ownership statutes, the ACO can invoke the doctrine of unfair terms applicable to undertakings.

The conditions for invoking the list of unfair clauses have been clarified since the recent amendment to the CEL.

Specifically, it will be important for both the company contracting with the ACO (e.g. a contractor) and the ACO itself to check whether or not the ACO can benefit from consumer protection. Indeed, this will have an impact on the validity of a number of clauses in the contract.

4. Application of the distinguishing criterion

The criterion for finding out whether or not an ACO can invoke consumer protection is whether or not a plot can be used for a professional purpose as stated in the co-ownership statutes.

For example, a residential plot where a use as a liberal profession is allowed, even if there is purely residential use, will also count to meet the more than 25% rule given that a professional use is possible.

The decisive factor is therefore whether this plot can be used for a professional purpose or not.

5. Jurisdiction of the court for disputes with ACOs

Previously, ACOs were always considered to be undertakings within the meaning of the CEL. This was recently confirmed by the Constitutional Court.

As a result, the commercial court had, in principle, exclusive jurisdiction to hear disputes between, for example, a contractor and an ACO.

The legislator did not consider this to be correct, as ACOs do not de facto trade like other undertakings do, they should not be subject to the strict rules to such other undertakings. For example, an ACO as an undertaking may have to be obliged to answer/protest invoices and letters within a reasonable time, otherwise these invoices and letters are deemed to be accepted, thus preventing the ACO in question to benefit from the doctrine of unfair clauses for consumers under the CEL.

With the law amending the CEL, the undesirable consequences of an ACO acting as an undertaking will be eliminated and ACOs will be able to be considered as consumers under the CEL in certain cases.
If an ACO - consumer were to act as a plaintiff against an undertaking (for example, to dispute an invoice from a contractor or to demand the performance of certain works), the ACO will in principle be given the choice of taking the case to the commercial court, or to the court of first instance

If the ACO is an undertaking, the commercial court will have exclusive jurisdiction for disputes with other undertakings.

Consequently, before taking an ACO to court, and in order to determine which court has jurisdiction, it is extremely important to ascertain in advance the capacity of the ACO.

6. Conclusion

This amendment to the CEL will enter into force on March 31, 2024.

From this date, ACOs will be able to benefit from the consumer protection provided for in the CEL under certain conditions.

From now on, it will be important for both ACOs and their co-contractors to determine (in advance) whether an ACO is an undertaking or a consumer. At Seeds of Law we can help you make this assessment.

Would you like to know more about your rights or your obligations pursuant to this change in law? Then please contact our specialists at +32 (0)2 747 40 07 or info@seeds.law.