Residential property matter: party liable for the costs of an emergency measure; liability of a sub-community for the costs of repairing the screed and underfloor heating after water damage

Facts

In a condominium owners' association, water damage occurred in the plaintiffs' flat, which was caused by the leakage of dirty water due to a defect in the lifting system in 2009. The plaintiffs discovered moisture damage that led to mould growth. Despite several expert opinions and insurance reports, the community of owners refused to carry out the necessary renovation measures, in particular the replacement of the screed and the heating loops, at the community's expense. The plaintiffs then demanded in court that the costs of the refurbishment should be borne by the community and that the delay in the measures should be recognised as default.

Decision of the Düsseldorf Local Court

The Düsseldorf Local Court largely upheld the owners' claim. It found that the screed belonged to the common property and that the owners' association was therefore liable for the repairs. As the owners' association had rejected renovation at the owners' meeting on 22 January 2014, it was in default from this point onwards. The court declared that the repair of the screed was part of the community's obligations and that it had to bear the costs.

Appeal before the Düsseldorf Regional Court

The defendants appealed, arguing that the screed and the heating loops were the plaintiffs' separate property and that the community was therefore not obliged to bear the costs. The Düsseldorf Regional Court partially overturned the judgement and ruled that the plaintiffs' application for a declaratory judgement was unfounded. However, it was confirmed that the defendants 7, 8 and 9 (special owners in the affected building) had been in default since 22 January 2014, as they had refused the renovation in breach of duty.

Common and special property

A central point of contention was the question of whether the screed and the heating loops were community property or separate property. According to the court, the screed is part of the common property as it fulfils an important function for impact sound insulation and is therefore necessary for the entire building. The heating loops that were affected by the renovation would also either have to be replaced as part of the common property or the community of owners would be obliged to compensate for the damage to the heating loops in the separate property on the basis of a sacrifice claim.

Default of the defendant

The Regional Court found that the defendants 7, 8 and 9 had been in default since the owners' meeting in January 2014, as they had breached their duty to cooperate in the proper management of the property. They should have passed the resolution on the renovation of the screed, particularly in view of the mould infestation and the health risks caused by the water damage. By refusing to carry out the refurbishment and refusing to assume the costs, they were responsible for the delay.

Conclusion

The judgement of the Düsseldorf Regional Court shows that the homeowners' association must pay for the repair costs in the event of damage affecting the common property. In this case, the screed was considered to be part of the common property, which is why the homeowners' association was obliged to repair it. At the same time, the breach of duty of the affected condominium owners was emphasised, who had fallen into arrears by refusing to carry out the renovation.