Construction projects often cause disputes in owner associations. New rules have been in force for a good two years. Now the first cases reach the final instance.
In the future, apartment owners should probably refrain from tackling building projects on their own without first obtaining the approval of the community. According to the new legal situation, a so-called compulsory decision has been in force for a good two years – and the Federal Court of Justice (BGH) sees no room for exceptions, as became apparent in a hearing on Friday.
The case from Bremen is about a semi-detached house, i.e. just a two-person community. The garden belongs to the community property. One side started building a pool in its half without consultation. The neighbor is against it and is suing for an injunction.
A fundamentally reformed residential property law has been in force since December 2020. An important innovation is that structural changes to the common property should only be possible if everyone has agreed on it beforehand.
At the same time, the individual owners of certain projects have the right to be allowed to carry them out by resolution. This applies to construction measures that politicians want to promote in particular – for example, if an underground car park is to have charging stations for electric cars. And also for structural changes “which do not affect any apartment owner in a legally relevant way,” as the explanatory memorandum states.
The neighbors with the pool think that nobody will be disturbed here. The insistence on a decision is therefore “mere formality”.
No obligation to tolerate without a decision
The district court of Bremen, on the other hand, recently let the pool construction fail because of this. Without a resolution, there is no obligation to tolerate, according to the verdict – “an apartment owner could otherwise violate the obligation to make a resolution and the pre-emption requirement without consequences”.
The top civil judges in Karlsruhe take a similar view after initial consultations. The legislature deliberately opted for the obligation to make decisions, said Chairwoman Bettina Brückner. In previous cases under the old law, which was not so clear on this point, the Senate had considered a dismantling to be disproportionate. But here the pit has only just been dug.
“Is it really formalism?” Brückner asked. Or isn’t it perhaps up to the builder to go to court to have that clarified? This checks whether there is a right to a permitting decision and then grants the permit.
Everyone did what they wanted
The lawyer for the neighbors with the pool, Siegfried Mennemeyer, said that this did not do justice to the situation in a community of two. So far everyone has done what they wanted in the semi-detached house. There has never been a shareholders’ meeting.
Brückner announced that her Senate would discuss the case again. After all, it is about setting the course for the new law. The verdict is to be announced on March 17th.
If the judges stick to their line, owner associations should be satisfied. Michael Nack from the consumer protection association Wohnen im property said that it would make more sense for peace in the community if those who wanted to build their co-owners came clean from the start. It shouldn’t be the case that the others are presented with a fait accompli and then haggle over subsequent approval.
Julia Wagner from the Haus & Grund Germany owners’ association also thinks: “If the BGH were to agree with the owners with the pool, that would completely undermine the community’s decision-making authority.” In addition, the litigation risk would be shifted to the community. (dpa)