In the future, apartment owners should probably refrain from tackling construction projects on their own without first obtaining the consent of the co-owners. According to the new legal situation, a so-called decision-making obligation has been in force for a good two years. The Federal Court of Justice (BGH) sees no scope for exceptions here, as became apparent on Friday in a hearing.
In the case from Bremen, it is about a semi-detached house, so only a two-person community. The garden belongs to the community property. One side has started to build a pool in its half without consultation. The neighbor is against it and sues for injunctive relief.
Since December 2020, a fundamentally reformed Condominium Act has been in force. An important innovation is that structural changes to the common property should only be possible if everyone has voted on it beforehand.
Is it just about formalities?
At the same time, for certain projects, individual owners are entitled to be authorised to carry out them by decision. This applies to construction measures that politicians would particularly like to promote – for example, if an underground car park is to get charging stations for electric cars. And also for structural changes, "by which no apartment owner is affected in a legally relevant manner," as it says in the explanatory memorandum. The neighbors with the pool think that no one will be affected here. The insistence on a decision was therefore "mere förmelei".
The district court of Bremen, on the other hand, had recently let the pool construction fail precisely because of this. Without a resolution, no obligation to tolerate, according to the judgment – "a condominium owner could otherwise violate the obligation to make a decision and the requirement of prior involvement without consequences".
The highest civil judges in Karlsruhe see it similarly after initial deliberations. The legislator had deliberately opted for the obligation to make decisions, said chairwoman Bettina Brückner. In earlier cases under the old law, which was not so clear on this point, the Senate had considered dismantling to be disproportionate. But here the pit has just been dug.
"Is it really formalism?" asked Brückner. Or is it not perhaps up to the builder to go to court to have this clarified? The latter examines whether there is entitlement to an authorising decision and then grants authorisation.
The lawyer of the neighbors with the pool, Siegfried Mennemeyer, said that this would not do justice to the situation in a two-person community. In the semi-detached house, everyone has done what he wanted. There has never been an owners' meeting.
Brückner announced that her Senate would discuss the case again. After all, it is about setting an important course for the new law. The verdict is scheduled for March 17.
Should the judges stick to their line, owners' associations should be satisfied. Michael Nack of the consumer protection association Wohnen im Eigentum said that for peace in the community, it makes more sense if builders pour their co-owners pure wine from the outset. It should not be the case that the others are presented with a fait accompli and then haggled over a subsequent approval.
Julia Wagner of the owners' association Haus & Grund Germany also says: "If the BGH were to agree with the owners with the pool, this would completely undermine the decision-making authority of the community." In addition, the litigation risk would be passed on to the community.