What does relief mean in property law
Condominium Act: These rules apply to owners
Apartment owners must adhere to the provisions of the Apartment Ownership Act. This was comprehensively reformed in 2020. An overview of the rights and obligations of homeowners.
Rules apply everywhere - this also applies to apartment buildings in which the apartments have different owners. The Condominium Act (WEG) regulates which these are. This was comprehensively revised with the “Law for the Promotion and Modernization of the Apartment Ownership Act and for the Amendment of Costs and Land Register Regulations” (in short: Apartment Modernization Act) 2020. The new regulations are on 1st December 2020 entered into force.
WEG reform 2020: the most important changes at a glance
- Apartment owners usually receive one Entitlement to installation a charging option for an electric vehicle, the barrier-free expansion and conversion, measures of burglary protection and the installation of a fiber optic connection.
- Decision-making about structural changes to the residential complex is simplified.
- The organization of the Administration becomes more efficient.
- The Administrative advisory board is as a control body vis-à-vis the administrator strengthened.
- Homeowners meetings are also sent by Online participation allowed.
- The new reform applies from 1st December 2020
What is the Condominium Act?
The Condominium Act regulates what the name suggests: the rights and obligations of homeowners. If an apartment building not only has one owner who rents out the individual apartments, but each apartment has its own owner, an owner association exists as an association of all owners.
In order to ensure that the community of owners works well and that disputes are largely avoided, there are regulations in the Condominium Act. In addition to the establishment of partial ownership, this also regulates the later management of the community of owners as well as general questions about the coexistence of the owners.
Declaration of division: the justification of home ownership
The legal requirement for a community of owners is a declaration of division, with which a property is divided into individual units. A homeowner cannot sell individual apartments without a declaration of division. This is regulated in Paragraphs 2 to 9 of the WEG.
In the declaration of division, a distinction is made between different forms of ownership. These are the most important terms:
Joint ownership is understood to mean all parts that are not directly assigned to an owner, i.e. that belong jointly to all owners of the apartment owners' association in accordance with their co-ownership share. So on the one hand the property, but also, for example, the stairwell or a communal laundry room in the basement.
Separate property is the area that belongs to an owner individually, i.e. his condominium including the other areas assigned to the apartment, such as a cellar compartment. With the 2020 WEG reform, areas such as parking spaces or terraces are now included (Section 3 (1) sentence 2 WEG-new).
Condominium ownership is separate ownership in connection with the co-ownership share in the common property to which it belongs.
Partial ownership refers to premises that are not used for residential purposes. This can be, for example, a shop in a residential and commercial building.
Rights and duties of the apartment owners
In paragraphs 10 to 19 of the Condominium Act, the legislature deals with the rights and obligations of individual owners.
One of the most important rights of an apartment owner is that, as long as it does not speak against the law or the rights of other owners, he can do whatever he wants with his private property. This means that an owner may live in his apartment himself, rent it out or use it in any other way (Section 13 WEG). However, the use of private property can also be regulated differently by the community of owners (Section 15 WEG). For example, the type of commercial use could be restricted. For example, no discotheque can move into a property with lawyers' offices. Every owner must then adhere to this agreement.
However, this also results in one of the most important obligations of the apartment owner: He must maintain the private property (§ 14 WEG). Incidentally, this also includes the fact that he only uses the common property in the manner that is customary and that none of the other owners incurs any disadvantage from it.
If an apartment owner repeatedly violates the rules of the apartment owners association despite warnings, his property can be withdrawn (Section 17 (2) WEG-new).
Important regulations for the management of owner associations
But clear rules on ownership are not enough. In order for a community of owners to function well in the long term, it needs a good one Property management.
Every community of owners needs one accordingly Administrator. This can be one of the owners, but usually it is a professional service provider, i.e. a commercial administrator.
An important question in the 2020 legal reform was whether a certificate of competence for commercial administrators will be compulsory. The Association of Real Estate Managers in Germany has been calling for this for a very long time. However, there will be no compulsory proof of competence under trade law in the future either. What is new, however, is that every apartment owner is free to request the appointment of a certified administrator for proper management (Section 19 (2) No. 6 WEG-new).
In smaller systems with fewer than nine separate property rights and one owner as a manager, the right to the appointment of a certified manager does not exist for every owner. This requires at least a third of the apartment owners (by head) to assert the claim.
A certified administrator is allowed to be someone who has proven through an examination in front of a chamber of industry and commerce that he has the necessary legal, commercial and technical knowledge (Section 26a (1) WEG-new). Entitlement to such an appointment exists for the first time two years after the reformed law came into force. This should ensure sufficient time to develop and introduce a suitable certification process.
All those administrators who were already appointed before the reform are considered certified administrators for a further three and a half years - even without an examination. The deadline is to give those administrators the opportunity and time to complete the exam.
Important: The training obligation for administrators remains unaffected by these new regulations.
According to the Condominium Act, the manager may be appointed for a maximum of five years. If a community of owners is newly established, for a maximum of three years. After that, the community has to decide whether the previous property manager has done a good job. Maren Herbst from the Association of Real Estate Managers Germany e.V. (VDIV) explains: "Owners should take enough time to choose the manager and not just pay attention to the price."
Due to the corona pandemic, owner meetings are often not possible. Therefore, it was decided by the legislator that the last appointed administrator remains in office for the time being in order to rule out an unmanaged situation. In addition, it was ordered that the most recently adopted business plan would continue to apply until a new business plan was adopted.
If owners are looking for an administrator, they should pay attention to certain quality criteria. So he should be able to prove his qualifications: How long has he been an administrator? Does he have an apprenticeship, for example as a real estate agent? "In addition, administrators should be able to show property damage liability insurance and business or professional liability insurance," explains Herbst.
WEG reform gives administrators more powers
In the course of the 2020 legal reform, the legislature has given the administrator of a condominium community more powers. He can now decide on measures on his own responsibility without the owner having to pass a resolution. However, only if these are of minor importance and do not lead to any significant obligations for the community (Section 27 (1) No. 1 WEG-new).
The size of the system should also be a measure of the importance of a measure. Because the larger the system, the more decisions the administrator can and must make about measures. This includes, for example, minor repairs or the conclusion of supply and service contracts to a limited extent.
The legislature also gives the community of owners the opportunity to define the manager's powers in more detail. So you can decide which measures he is allowed to take and in which form on his own responsibility (Section 27 (2) WEG-new).
The administrator not only has more powers internally, but also in external relationships with the entry into force of the reform a power of representation for the community (Section 9 (1) WEG-new). As a result, the administrator will in future have the option of concluding a loan agreement or a property purchase agreement as decided by the community. The Community can keep this decision in general or focus specifically on a specific case. An example could be a piece of land that the community buys to create parking spaces.
Administrators can be removed more easily
The administrator gets more powers, but it is better not to use them negatively. Because the legislature makes it easier for the community of owners to dismiss the administrator at the same time. There no longer needs to be an important reason for this in the future. According to Paragraph 29, Paragraph 2, owners can remove the administrator at any time. The management contract ends no later than six months after the dismissal.
The owners' meeting
In addition to the manager, the owners' meeting is an important instrument for managing a system. It must be convened once a year by the administrator. In advance, the advisory boards, which are elected from among the owners, check whether the manager has worked properly: they check the business plan and also check whether the accounts are mathematically and factually correct.
With the reform of the WEG, the regulations relating to the administrative advisory board will also be adjusted. In future, the owners will be able to decide how many advisory boards there should be. There is no need to specify three members of the Advisory Board. The monitoring of the administrator is now also regulated by law (Section 29 (2) WEG-new).
So that in the future more owners are willing to take on the voluntary task of an advisory board, the legislator has limited liability to intent and gross negligence (Section 29 (3) WEG-new).
Thereafter, the administrator invites you to the meeting at least three weeks before the date (Section 24 (4) No. 2 WEG-new). In the invitation, the apartment owners will also find the individual items on the agenda that are to be voted on.
With the 2020 WEG reform, owners' meetings can be made more flexible. In particular, digitization is finding its way here. In future, the meeting may also be called by email (Section 24 (2) WEG-new). Until now, the written form was mandatory.
In addition, the legislature gives the option of enabling online participation in the owners' meeting by means of a resolution (Section 23 (1) WEG-new). A complete abolition of face-to-face meetings is, however, not possible.
The Berlin-Wedding district court has decided that it is currently generally permissible to hold the owners' meeting outdoors (Az .: 9 C 214/20). An owner had sued who saw it as a violation of the principle that the meeting was not open to the public.
The quorum of the owners' meeting is also simplified. Accordingly, the quorum will in future be independent of the number of owners or co-ownership shares present or represented. The main aim of this is to save costs because repeat meetings can be avoided. The previous paragraph 3 of Paragraph 25 WEG is deleted.
Following the apartment owners' meeting, the administrator must deliver the resolutions passed to all owners - including those who were not personally present. After the reform of the WEG came into force, the text form will also be sufficient for this, the mandatory written form has been abolished (Section 23 (3) WEG-new). The owners have four weeks to challenge the resolutions of the owners' meeting.
Major renovations: maintenance reserves and special allocation
If renovations are decided at the owners' meeting, they have to be paid for somehow. Ownership associations usually set up reserves for such cases. As a rule, each owner pays a fixed amount of money every month along with the house money. This money is accumulated in a WEG account. How high the reserves should be is not generally specified, but there are guidelines.
How high should the maintenance reserve be? Two calculation methods:
Maintenance reserve according to the calculation regulation
For newer buildings, up to 7.10 euros per square meter of living space is appropriate. For houses that are more than 22 years old, nine euros and for buildings that are more than 32 years old up to 11.50 euros. These values are specified in the Second Calculation Ordinance (Section 28). However, this regulation is only legally binding for social housing.
Calculate the maintenance reserve using Peters' formula
Another approach to an adequate maintenance reserve is Peters' formula. It states that 1.5 times the production costs must be saved within an assumed 80-year useful life of the building. It is assumed that 65 percent of the costs relate to communal property and 35 percent to individual property.
The production costs only include those costs that are incurred by the craftsmen, but not the costs for the property, ancillary purchase costs or the profit margin of a property developer. With an estimated production cost of 2,000 euros per square meter, the community of owners should therefore save around 24.50 euros per square meter of communal space annually.
More information on the maintenance reserve.
Special contribution if the reserve is insufficient
There are several reasons why it may be necessary for a community of owners to decide on a special contribution. For example:
- To finance major renovationssuch as installing a new heater.
- If Bottlenecks in terms of WEG's liquidity are present. For example, because the business plan is too tightly calculated or if an owner does not pay his house money.
- Around old liabilities the WAY to settle.
If a special levy is decided at the owners' meeting, the purpose, amount and cost allocation must be specified. In most cases, the special contribution to be paid for the individual owner is calculated according to the amount of his co-ownership. Deviating from this, another key can be agreed upon by the community of owners.
If a special contribution is so high that it could overburden some owners financially, a resolution can also stipulate that it is to be paid in installments.
Special contribution if a co-owner does not pay or only pays irregularly
It is problematic if an owner does not meet his obligations in the long term. An example: A WEG consists of five units with equal shares of co-ownership. Because one of the owners has not paid house money for a long time, 5,000 euros are missing in the WEG cash register. If it were now decided that each owner had to pay 1,000 euros, it would be foreseeable that the illiquid owner would not pay his share. It is then a good idea to decide on a special contribution of 1,250 euros.
If it is foreseeable that the defaulting owner will not meet his payment obligations in the future, an even higher amount should be chosen under certain circumstances. In this case, proper administration also includes the fact that the administrator has the claim against the defaulting owner titled, i.e. that a judicial dunning and enforcement procedure is carried out. The community can even initiate a foreclosure auction to get their money.
Voting in the WEG on structural measures and special levy
Every measure needs a certain number of votes in the homeowners association in order for it to be carried out. There are different types of votes and different majorities:
The three voting principles
This is the statutory voting principle (Section 25 (2) WEG). If the declaration of division or an agreement between the co-owners does not contain any regulations on the voting principle, the head principle applies. That means: every vote has the same weight. Apartment owner Müller only has one vote, even if he owns three units in the WEG. If several people share an owner-occupied home, for example a married couple who are half the co-owners of an apartment, they have one vote and can only exercise their voting rights together.
The voting power is usually based on the size of the co-ownership shares (MEA). These are specified as a fraction of all co-ownership shares in the declaration of division and recorded in the land register. For example, Mr. Müller's condominiums are recorded in the land register with 200 MEA each, so he has 600 voting shares in the total votes. For example, if an apartment has 400 MEA, it can also have 800 voting shares.
Another method to determine the majority ratios is the distribution according to objects. Each unit is entitled to one vote, so an owner with several units also has several votes here. In this case there would be three for Mr. Müller.
The different majorities
Applies to: Repairs, maintenance work, day-to-day administration, conclusion of an insurance contract, business plan, appointment of the administrator, formation and amount of the maintenance reserve.
As a rule, it is sufficient for decisions in the WEG if more yes-votes than no-votes are given. This vote takes place by votes in favor, votes against and abstentions. As a rule, it only depends on the votes cast, abstentions are not counted. In the community regulations, however, the owners can also make deviating regulations on this.
Applies to: certain resolutions, provided that the apartment owners' association has agreed accordingly.
There may be regulations in the community system that a qualified majority is required for certain resolutions. What this looks like depends on the agreement. For example, it can mean that at least half of all owners must agree, or a majority of three quarters of owners. It can also be regulated whether this refers to all owners entered in the land register or whether the votes of those present at the owners' meeting are sufficient.
Double qualified majority
Applies to: Measures to modernize communal property, for example if the roof is to be re-insulated in order to save energy; Decision on a special levy.
The WEG demands this majority for certain decision-making powers. This means that three quarters of all owners with voting rights entered in the land register must approve the motion for a resolution. In addition, these owners must represent more than half of all co-ownership shares. The coordination is mandatory according to the head principle.
Applies to: Structural changes that are neither modernization nor repair and affect the overall appearance of the property. This can be, for example, adding balconies or installing an elevator. In addition, this voting principle applies if the declaration of division is to be changed, for example if a new rule is to be included in the community order, which in turn is part of the declaration of division.
In certain cases, the WEG demands universal harmony. This means that all apartment owners who are in the land register must agree to the decision.
Attention: WEG reform makes structural changes easier
It should be easier to make structural changes to the residential complex: These should be included in the WEG reform at the end of 2020 simple majority can be decided, especially in the case of measures that lead to sustainable cost savings or bring the residential complex into a contemporary state (Section 20 (1) WEG-new).
In addition, should Owners more rights to get. You are therefore entitled to the following measures:
- Installation of a charging station for an electric vehicle
- Laying a fiber optic connection
- a barrier-free expansion and renovation
- Burglary protection measures
The prerequisite for this is that you bear the costs yourself. The owners' meeting can then usually no longer refuse such construction work, unless the residential complex would be fundamentally remodeled or an individual owner would be unfairly disadvantaged as a result.
In addition, the WEG can influence the type of implementation and, for example, decide that the community of owners organize the necessary steps to keep track of the structural condition of the residential complex.
What to do when there is a dispute: judgments and procedures
Wherever many people live together, differences of opinion always arise. In a WEG, a dispute between the residents can spoil the climate - or there is a dispute between the owners and the property manager. In any case, the question then arises: What should be done? In most cases, it makes sense to settle this dispute out of court. The Consumer Dispute Settlement Act (VSBG), which came into force some time ago and aims at out-of-court arbitration, is only applicable to WEG if a WEG wants to take action against a company. Disputes between owners or between the administrator and WEG are not covered by the VSBG. That is why many WEG disputes still end up in court.
After the WEG reform, it is only possible for a community of owners to enforce common rights as a collective. Owners are therefore no longer allowed to enforce their claims alone. For a transitional period, the BGH announced in May 2021 that ongoing processes may be continued (BGH Az. V ZR 299/19). This has clarified a relevant legal question for many of those affected.
Sometimes it also happens that the owners' association decides on changes that a minority of the owners disagree with and that they challenge them in court, or one owner wants to get something through, but the majority of the owners are against it. There are also cases in which, for example, an owner acts against the rules for years, but this is tolerated by the community for a while, but no longer tolerated later. Numerous court rulings give advice on how to resolve such disputes.
Some supreme court judgments:
Declaration of division as a yardstick: restaurants may not be operated in shops
The Federal Court of Justice had to deal with such a case (Ref .: V ZR 275/16). The point here was that a restaurant was operated in a larger property complex with apartments, shops, practices and offices in one unit. This use was not provided for in the declaration of division, but was tolerated by the community for decades. At some point, however, the majority of the owners decided to no longer accept this improper use. At an owners' meeting, the majority of the WEG decided to take legal action against it.
The WEG's action to cease operating the restaurant was ultimately successful before the BGH. According to the judges, the intended purpose contained in the declaration of division is decisive for the permitted use. And this envisages a use as a shop, practice or office, but not as a restaurant. According to the BGH, the claim was not forfeited because of the long toleration.
Minority can prevail against majority
In some cases, owners who are in the minority can assert their interests against the will of the majority. In a case negotiated before the BGH, moisture damage occurred in the basement of an old house because the sealing was faulty (Az .: V ZR 203/17). In the basement there was a naturopathic practice, an artist agency and a communication agency. The owners of these units asked for renovation, the other owners of the apartments above the commercial space, which formed the majority of the residential property, refused to do so because of the high costs.
The case ended up in court and was ultimately decided in favor of the traders. The deficiencies in the common property have to be eliminated despite the high costs of around 300,000 euros. In the specific case, the “target condition” of the building according to the declaration of division, in which the building was described as “totally renovated”, is decisive.
Structural changes by an owner
If an owner makes structural changes to his private property that change the appearance of the building, the consent of all owners of the community is not always required, the BGH ruled (Az .: V ZR 49/16).
In the negotiated case, an owner owned a penthouse apartment with a roof garden. Because the roof, which was jointly owned, had to be renovated by the owners' association, a roof porch was removed, which was rebuilt by the penthouse owner after the roof renovation - albeit with a different appearance. Since the porch was also visible from the outside and, from the point of view of some owners, had adversely changed the appearance of the building, the WEG sued the owner to have the new roof porch removed.
While the district court of the WEG was still right, the BGH saw it differently and referred the dispute back to the lower court: The first thing that matters is whether the change is so significant that the overall visual impression of the building has changed significantly. Only if this is the case can the WEG do something about it. The penthouse owner then has to vote on it. However, a unanimous result is not necessary here, it is sufficient if more than three quarters of all apartment owners agree and they represent more than half of the co-ownership shares.
Rioting can have consequences for WEG owners
Gross misconduct can have consequences for owners. In a case ruled by the BGH, an apartment owner repeatedly insulted other owners and even committed physical injuries (Az .: V ZR 138/17). At some point, the WEG majority no longer wanted to accept these sustained disturbances of domestic peace and decided at an owners' meeting to deprive the troublemaker of property. A judicial property withdrawal procedure is possible according to § 18 of the Condominium Act.
Ultimately, the WEG majority won the case before the BGH. The troublemaker had to sell his apartment and move out. The judgment also affects - and the BGH had to decide - the troublemaker's wife, who was not guilty of anything.
In a comparable case, the hunted ex-owner wanted to cheat: After he was convicted to sell his apartment, he rented his ex-apartment from the new owner. Not like that, ruled the BGH: The new owner must ensure that the former owner and troublemaker moves out (Az .: V ZR 221/15).
Elevator only if all owners agree
Even if an apartment owner is unable to walk, he needs the unanimous consent of the community if he wants to have an elevator installed in the stairwell. This also applies if he pays the costs himself, ruled the BGH (Az .: V ZR 96/16). Because the installation of an elevator means a massive structural intervention. However, the BGH allowed the owner to install a stair lift or a ramp. The other owners have to put up with such minor changes.
The apartment door belongs to the community of owners
In a community of owners, the appearance of the apartment doors was a (majority) decided thing: They should be made of wood in the color “mahogany light” and contain a fixed size glass insert in “wire ornament white”. However, one owner had different tastes and went to court.
The Federal Court of Justice finally gave her a rejection (Az .: V ZR 212/12): The apartment door separates the private property from the communal property. Because it is spatially and functionally part of the community property, the entire door is jointly owned. It was not decided whether the apartment owner should at least design the inside of the door for herself, because there were no specifications from the WEG.
Tree felling is property damage to common property
In one case, the owner of an apartment in the two-family house decided to cut down the trees in the garden in order to expose the lake view for her upper apartment.
According to the Federal Court of Justice, trees or other plantings on the property are, however, joint property and whoever falls them commits property damage (AZ .: V ZR 185/15). Because with a not only temporary planting, trees become an essential part of the property. Should they be felled, the consent of all apartment owners would usually be required.
New facade color: the gaudier, the more complicated
There is still no ruling by the highest court on pink or neon green house facades. But if you follow the District Court of Munich I, every new coat of paint with a new color is a structural change (Az .: 36 S 1982/12). In other words, in order for it to be carried out, all owners who may be detrimental to it would have to agree. Whether the structural change is minor or even significant can only be roughly said. But the more extreme the color, the more likely it is that an owner can argue that the change is substantial and that it will have a detrimental effect.
However, even if all owners agree on the color, they must comply with laws and regulations. Among other things, the building code, according to which building projects in inner-city areas for which no development plan exists, must fit into the peculiarities of the surrounding area. The specifications for the external appearance of the building are usually regulated in the local development plan and / or in a municipal design statute.
Dispute over the satellite dish and antenna
A frequent irritant topic in the WEG is the installation of satellite dishes, as these are a thorn in the side of many co-owners. Whether the individual can prevail against the majority in this regard depends heavily on the individual case, as there is still no generalizable judgment on this.
A case before the BGH can help as a rough guide to weigh up interests: An apartment owner who came from Poland and wanted to receive regional television programs from her home country with the satellite antenna had sued (Ref .: V ZR 10/09). In doing so, she cited a particular interest in information due to her origin. The other WEG members were against it for aesthetic reasons.
Most recently, there was a judgment that was favorable to both sides: the owner had to remove the bowl that she had installed without the consent of the owners' meeting. However, reception should not be denied. However, since this is a structural change, the community has the right to have a say in where the satellite dish is installed. In the end, this was then installed on the roof, as the appearance of the house was less disturbed in the opinion of the co-owners.
Conclusion: avoid a dispute
It is best to inquire about whether the community of owners is a harmoniously functioning group or a dispute community before buying a condominium. The easiest way to find out is to look at the minutes of the owners' meeting over the past few years.
Furthermore, when buying a condominium, it is advisable to have the seller confirm in the purchase contract that he is not aware of any major disagreements in the community of owners.
Even if a buyer has not made this agreement, he can, depending on the individual case, hold the seller responsible for the fact that he has concealed problems in the community of owners. Various courts have already sentenced the seller to compensation in such cases. For example, the Düsseldorf Higher Regional Court: In the specific case, two conflicting groups of owners faced each other, who had overdone each other with over 100 WEG disputes. In this case, the plaintiff could even demand the cancellation of the purchase contract and the repayment of the purchase price (OLG Düsseldorf, Az .: 9 U 92/96).
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