Apartment owners should better refrain from tackling personal construction projects on their own without a joint decision with the neighbors. According to the new law, a so-called obligation to make decisions before structural changes to the common property has been in force for a good two years – and the courts cannot turn a blind eye here, as the Federal Court of Justice (BGH) made clear in a first judgment on Friday. The legislator wanted to eliminate a source of frequent disputes, said the presiding judge Bettina Brückner. "That's why you can't just start building."
The Karlsruhe judges decided in a case from Bremen that a pool, for which the pit has already been excavated, may not be continued because of the lack of a decision. The neighbors in the semi-detached house form a two-person community of owners, the garden belongs to the community property. One side had begun without any agreement to build a pool in their garden half – the neighbor took legal action against it. Since there is no decision, their action for an injunction was also successful in the last instance.
The reformed Condominium Act also stipulates that individual owners are entitled to be permitted to carry out certain projects by resolution. Nevertheless, this decision must always be formally obtained in advance, as is now clear from the BGH ruling. (Az. V ZR 140/22)
Lawyer: So far, everyone has done what they want
The lawyer of the neighbors with the pool recently stated that the 2020 reformed condominium law on which the lawsuit is based does not do justice to the situation in a two-person community. In the semi-detached house, everyone has done what he wanted. In addition, no one else would be affected by the pool.
According to the Condominium Act, structural changes to the common property should only be possible if everyone has voted on it beforehand. At the same time, individual owners have the right to be authorised to carry out certain projects by decision.
This applies to construction measures that are particularly supported by politics – for example, if a garage is to get charging stations for electric cars. And also for structural changes "that do not affect any apartment owner in a legally relevant manner".