Federal Court of Justice, 24 January 2014, Ref.: V ZR 48/13
Pursuant to Section 22 (1) WEG, structural changes and expenses that go beyond the proper maintenance or repair of the common property can be resolved or demanded if every condominium owner whose rights are impaired by the measures beyond the extent specified in Section 14 No. 1 agrees.
Pursuant to Section 22 (1) sentence 2 WEG, this consent is only not required if the rights of a condominium owner are not impaired in the manner described in sentence 1.
In the above-mentioned case, the Federal Court of Justice had to decide whether the resolution of a homeowners' association to install mobile phone base stations was legally valid, even though one member of the homeowners' association had voted against the resolution.
Facts
The parties to the legal dispute form a homeowners' association consisting of a 22-storey tower block. There are two mobile phone base stations on the flat roof of this complex, one of which is operated by F. GmbH. In November 2010, a majority of the condominium owners' meeting decided to extend the contract with F. GmbH and to allow the company to erect additional antennas on the roof of the lift building. One owner, the plaintiff, filed an action for annulment as she owns an attic flat and protested against the resolution.
Decisions of the lower courts
Both the district court and the regional court ruled in favour of the plaintiff. They ruled that the installation of the mobile phone system constituted a structural change that would have required the consent of all condominium owners in accordance with Section 22 para. 1 in conjunction with Section 14 no. 1 WEG (German Condominium Act). § Section 14 No. 1 of the German Condominium Act (WEG). As this consent was not obtained, the resolution of the owners' meeting was invalid. The defendant's appeal was also dismissed.
Decision of the Federal Court of Justice
The Federal Court of Justice (BGH) dismissed the defendant's appeal and confirmed the judgements of the lower courts. The BGH argued that there is a scientific dispute about the potential dangers of mobile phone base stations. These uncertainties could lead to the rental or sales value of condominiums being impaired. A reasonable condominium owner would not have to accept such an impairment without consent. The consent of all owners is therefore required in accordance with § 22 Para. 1 in conjunction with § 14 No. 1 WEG. § Section 14 no. 1 WEG was required.
Differentiation from § 906 BGB
The defendants invoked Section 906 (1) sentence 2 of the German Civil Code (BGB), according to which certain effects such as radiation immissions are immaterial in the relationship between neighbouring property owners if limit values are complied with. However, the BGH clarified that this standard does not apply to disputes between flat owners. Rather, a high degree of consideration is required in a homeowners' association. The provision of Section 906 BGB does not serve as a yardstick for the question of whether structural alterations may be made to the common property without consent.
The decision thus strengthens the rights of individual flat owners to have a say in structural changes and to protect the value of their property from potential impairment.
Source: Federal Court of Justice
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 provide advice and representation in tenancy law.