In a ruling dated March 17, 2023, the Federal Court of Justice decided that a resolution of the apartment owners must be obtained before carrying out structural changes to common property (Case No.: V ZR 140/22).
In this case, the owners of one half of a semi-detached house had begun construction of a swimming pool on their half of the property. The owner of the neighboring half of the property successfully sued to stop the construction. According to the declaration of division, the garden area was indeed assigned to the owner wishing to build as a special right of use. However, a later amendment to the declaration stipulated that they alone were responsible and liable for repairs and maintenance in this area. Special rights of use, however, only grant an exclusive right of use; the areas themselves remain part of the common property.
According to Section 20 Paragraph 1 of the German Condominium Act (WEG), measures affecting common property that go beyond mere maintenance (structural alterations) must be authorized by a resolution of the condominium owners. While this requirement can be waived, it then necessitates a corresponding provision in the condominium association's rules and regulations.
The Federal Court of Justice (BGH) has now clarified that the mere allocation of a special right of use does not automatically authorize fundamental alterations to the respective special use area. If the boundary to maintenance measures is crossed – such as with the construction of a swimming pool – a resolution is required unless the declaration of division provides otherwise.
The relatively new regulation in Section 20 of the German Condominium Act (WEG) is clear in this respect: Any structural alteration to the common property intended by an individual condominium owner requires a legally valid resolution authorizing the alteration, even if no other condominium owner is affected in a legally relevant way. This ensures that all condominium owners are informed about all structural alterations to the common property. In case of dispute, such a resolution must be obtained before the construction work is carried out by means of an action to substitute the resolution (Section 44 Paragraph 1 Sentence 2 WEG). If this is disregarded, the other condominium owners have a right to an injunction.
Practical tip:
Since the Condominium Act (WEG) reform came into effect at the end of 2020, it has been possible to extend individual ownership to garden areas. In the case of semi-detached houses, where maximum legal independence is generally desired, this offers a good opportunity to remove terraces and garden areas from the common property and thus also from the requirement of a resolution. If, on the other hand, the apartment owners wish to reserve the right to redistribute ownership later and maintain the allocation of mere special usage rights, it is advisable to include a provision in the declaration of division that permits construction work even without a prior resolution by the owners' association.
If you have any questions regarding this legal ruling, please contact us. Lawyer and notary Simone Krziwanek, Mr. Attorney and Notary Dr. Robert Scherzer as well as Mr. Attorney and Notary Oliver Merleker gladly available.