Traunstein Local Court, 18/09/2015, Ref.: 319 C 1083/15
Among other things, residential property is protected by Section 1004 BGB. § Section 1004 BGB is a central basis for claims under civil law. It protects property and safeguards it against interference from third parties and can therefore justify a claim for removal and/or injunctive relief for the claimant.
Each individual condominium owner therefore has a right to injunctive relief if a condominium or partial condominium is used by a condominium owner or their tenant contrary to the intended purpose in accordance with the declaration of division or the community regulations.
The corresponding individual claim of the individual condominium owners can also be asserted by the community of condominium owners with partial legal capacity after the resolution has been passed.
In the case discussed here, several homeowners had joined forces to prevent the occupancy of a flat in the homeowners' association by several refugees by way of interim legal protection.
FactsApplicants in these preliminary injunction proceedings were various homeowners of a homeowners' association.
In the injunction proceedings, they objected to the transfer of a flat belonging to the homeowners' association to 11 asylum seekers. The flat was approx. 80 m² in size, consisting of two separate bedrooms on the upper floor of 12 m² and 18 m² respectively, a bathroom, open-plan living area with kitchen and guest WC on the ground floor.
The reason given by the flat owners was that the high occupancy rate with refugees would lead to the common areas of the condominium being used more heavily by smokers, for example, compared to normal residential use, and that people could possibly also relieve themselves outdoors in the common areas if the toilet was occupied.
Traunstein Local Court: The Traunstein Local Court has now dismissed the interim injunction. Although each condominium owner can assert claims under Sections 14, 15 WEG against the other condominium owners themselves, in particular the defence claim asserted here under Sections 1004, 1011 BGB, an owner resolution is not required for this. However, the asserted claim for injunctive relief pursuant to Sections 1004, 1011 BGB would not exist in the present case.
It is true that all flats were designated as such in the declaration of division, so that only residential use or such use is permitted there which, from a standardised point of view, would generally not disturb and impair more than a use as a dwelling corresponding to the intended purpose.
However, this does not rule out the possibility of letting a flat in this complex for permanent occupancy by asylum seekers. It is a matter of whether in the individual case impairments exist or are to be feared in the future due to certain facts that are more disruptive than in the case of a normal letting.
In the present case, the applicants have neither substantiated facts that such impairments already exist nor that they are to be feared in the future. It is merely surmised that the high occupancy rate would lead to increased use by smokers and to people defecating in communal areas.
However, such mere speculation would not establish any corresponding facts.
According to Sections 13 (1), 14 No. 1 WEG, a balance must be struck between the right of the flat owner to use their flat as they wish and the obligation to show consideration for the other flat owners. Only residential use that is still within the bounds of what is customary, taking into account the nature and size of the flats, is permitted. The guideline figure of a maximum of 2 single persons per single room could provide a certain indication of the occupancy density of a flat. The same applies to the provisions of public law on the question of when overcrowding and thus excessive use of a flat can be assumed.
With regard to occupancy by repatriates or refugees, the Bavarian Supreme Court stated in its decision of 9 February 1994 (NJW 1994, 1662 - beck-online) that the occupancy of a condominium by repatriates is permissible if a guideline value of 2 persons per room is adhered to and a living space of at least 10 m² is available for each person aged at least 6 years.
In the proceedings at issue, an approx. 80 m² flat, consisting of two separate bedrooms on the upper floor with 12 m² and 18 m² respectively, a bathroom, open-plan living area with kitchen and guest WC on the ground floor, is currently occupied by 11 asylum seekers, as credibly demonstrated. Such an occupancy exceeds the occupancy principles set out in the previously cited case law.
In the opinion of the court, however, these could no longer be used at present, as the current housing situation would no longer allow this. As a result, the administrative guideline of the government of Upper Bavaria, according to which at least 7 m² must be available for each asylum seeker when renting accommodation, does not currently apply.
In any case, this value is still complied with in the present case, as each asylum seeker has 7.27 m² at their disposal.
Nor has it been made credible that the current occupancy of 11 asylum seekers is not just a temporary situation. Furthermore, no credible grounds for an injunction had been provided. The urgency required for a decision was not recognisable.
Source: Traunstein Local Court
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