Regional Court Cologne, 30.06.2011, Ref.: 29 S 246/10
The WEG law (Act on Condominium Ownership and Permanent Residential Property Rights) deals with the rights and obligations of members of a community of condominium owners or the establishment of condominium ownership within such a community.
Typical areas that are subject to regulation by the WEG are, for example:
- Rights and obligations of the property management company and its liability.
- Acquisition and sale of condominiums.
- Resolution of the community of owners
- Rights and obligations of the condominium owners among themselves and in relation to third parties.
In particular, disputes as to whether or not certain construction measures, maintenance or modernisation work on the common property must be carried out are repeatedly the subject of court decisions.
Maintenance and repair measures are adopted by majority resolution in accordance with section 21 (3), (4) and (5) no. 2 WEG.
Section 22 (1) WEG sets out the requirements for structural alterations to the common property in more detail.
Another measure provided for in the WEG is modernisation under tenancy law in accordance with Section 22 (2) WEG. According to this, structural measures that bring about an adaptation of the common property to the state of the art, an increase in the utility value, an improvement in general living conditions or a saving of water or energy without a specific need for repair work, can be decided with a so-called double qualified majority (resolution with at least 75% of all votes and more than 50% of the co-ownership shares), provided that the character of the residential complex is not changed or a condominium owner is not unfairly disadvantaged.
Section 22 (3) WEG, in turn, has regulated modernising repairs since the renewal of WEG law in 2007. Accordingly, if there is a need for repairs, the owners can decide by simple majority that a modernisation measure be carried out instead of restoring the previous condition if this makes economic sense.
The above-mentioned decision dealt with the question of whether a homeowners' association could be obliged by a disabled homeowner to create accessibility in the stairwell and garage by installing handrails etc. due to the homeowner's walking disability.
Introduction
In this case, elderly owners of a condominium owners' association (WEG) sued for the installation of handrails in the stairwell and garage in order to improve accessibility. The plaintiffs, the husband of whom is disabled, demanded a structural alteration, which was rejected at an owners' meeting.
Background to the lawsuit
The plaintiffs initially brought their action before the local court to contest the resolution of the owners' meeting in which their applications were rejected. In addition, they filed applications for an obligation to compel the other owners to carry out the construction measures at the expense of the community. However, the local court dismissed the action and argued that the plaintiffs were not entitled to the requested structural alterations in accordance with Section 22 (1) WEG.
Appeal and argumentation
In their appeal, the plaintiffs argued that their state of health required the installation of handrails on an intermediate landing and along a ramp. The defendants, on the other hand, argued that there was no recognisable need for a handrail on the stair landing. In addition, the ramp in the underground car park was only considered an escape route, not an accessible route, and was too narrow for the installation of a handrail. They pointed out that the principles of accessibility did not imply any obligation on the part of the community to bear the costs of the measures.
Decision of the Regional Court of Cologne
The Cologne Regional Court upheld the decision of the local court and dismissed the plaintiffs' claim. It found that there was no entitlement to consent to the installation of the handrail at the expense of the community. The installation of a handrail constituted a structural change to the common property and not a mere repair or modernisation. Furthermore, there was no obligation under public law for the community to install the handrail. Even in the context of accessibility, no claim to cost sharing by the other owners was recognised, as the construction measure was considered to be in the plaintiffs' own interest.
Source: Cologne Regional Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.
Lawyers in Cologne advise and represent clients in tenancy law.
