Federal Court of Justice
Communication of the press office
Renovation duties in one in
Condominium and part ownership split old building
Judgment from the 4th of May, 2018 - V of ZR 203/17
Today the Federal Court of Justice has decided on a lawsuit in which condominiums and part ownership argue about whether humidity damages must be redeveloped in the area of the common property.
The parties form a flat and part ownership community. The building established in 1890 was split in 1986 in twelve flats and three part ownership units. The plaintiffs are the owners of three part ownership units who are in the basement of the building; they become in the division explanation as "a store" or" Office" called and currently as a natural welfare practise, artist's agency and communication agency used. Because the walls of these units show moisture penetrations, the condominium community caught up in 2010 a certificate of an engineer's office and in 2011 a certificate of an architect. Both certificates proved the same damage causes, namely a missing outside-sided base sealing, a missing horizontal barrier and in the masonry stored salts. In the owner's meeting from the 31st of March, 2015 2a made application of the plaintiffs for removal of the humidity damages was rejected to TOP. Also the other application to TOP 2B after which the repair should occur through bringing into play of a horizontal barrier in the masonry as well as application of a vertical barrier on the earth-touched outer walls found no majority. To TOP 2and the following the condominiums decided by the majority to catch up another expert's certificate.
Present process course:
Against the called decisions to TOP 2a, 2B and 2and the following the plaintiffs with the action for nullification turn. At the same time they have applied to condemn the defendants, to agree to the decision applications to TOP 2a and 2B or to carry out a judicial decision compensation. The district court has rejected the complaint in the essentials. On the appeal of the plaintiffs the district court has granted to her. With the check admitted by the district court the defendants want to reach that the complaint is turned down all together.
The decision of the Federal Court of Justice:
V, among the rest, responsible for the condominium right. Civil senate of the Federal Court of Justice has accepted a renovation duty of the condominiums and has rejected the check, therefore.
To TOP 2a applied basis decision about the renovation of the humidity damages had to be substituted with the court because the plaintiffs are entitled to the renovation of the communal property. The common property, in any case, in such an architectural state must be basically that the special property can be used for the purpose intended in the division explanation. If the communal property shows serious architectural defects which affect the use suitable to purpose of flat or part ownership units considerably or even exclude, an immediate repair is necessary compelling, and single condominiums can require the renovation according to §21 paragraph 4 Condominium Act. It is about such defects here; the inner walls and outer walls of the part ownership units are soaked massively. The cause lies in a missing sealing of the building and with it in the communal property; hence, the renovation (just as, for example, with defects of the roof) is a job of all condominiums. Because the part ownership units may be used after the division explanation as an office or store, they just as flats must be suitable basically in addition how to serve day room for people. Massive moisture penetrations must not accept the plaintiffs, therefore, namely also not if noxious mould should not (still have appeared. Against the view of the check the renovation claim is not excluded by the fact that it concerns basement units in an old building.
The renovation is also to be expected of the defendants. If the preservation of the building substance is endangered, must be redeveloped anyway. If the building substance is not endangered, the renovation can be avoided at most by a change of the division explanation, while the purpose of utilisation of the affected units is changed, here possibly by a change from that point of view that the part ownership units serve (only) as a cellar. Whether moisture penetrations of a part ownership unity serving as a cellar had to be accepted under circumstances, and whether disproportionate costs of the repair can lead to the fact that the remaining condominiums can require an adaptation of the purpose intended in the division explanation according to §10 paragraph 2 sentence 3 Condominium Act, the senate has left open. Since apart from the fact that such an adaptation claim is not an object of the procedure, it concerned an extremely serious intervention in the property right of the affected owners who could not use her units any more - how before – than to store or office. Therefore, such an adaptation of the division explanation can be considered only as ultima ratio in special cases and against compensatory payments. From such an exceptional case cannot be gone out here. After the statements of the district court the humidity can be repaired. Though from the plaintiffs with 300,000€ of figured renovation costs are high for himself taken. However, it is not evident that they stand completely except relation to the attainable use for the building substance generally and three units of the plaintiffs in particular. A "sacrificial border" for single condominiums is not to be recognised after the administration of justice of the Federal Court of Justice anyway.
The judicial decision compensation also had to occur in view of the decision application to TOP 2B. On the basis of an expert's certificate the district court assumes legal-perfectly from the fact that at the decisive time of the last verbal negotiations only the renovation procedure intended in the decision application of proper management corresponded; the closer details are left to an expert renovation planning.
Finally, has also rightly been granted the decision actions for nullification. To the condominiums were given because already at the time of the owner's meeting two private certificates which had named the damage cause correspondently and had indicated renovation possibilities. The conclusion of the district court, it has not corresponded to proper management to reject the renovation applications (TOP 2a and 2b) and, instead, the Einholung of an other certificate to decide legal mistake does not reveal (TOP 2f). In any case, it contradicted proper management to delay the necessary renovation with the contested decisions further.
AG Hamburg – judgment from the 7th of December, 2015 – 11 C 22/15
LG Hamburg – judgment from the 28th of June, 2017 – 318 p. 9/16
The decisive regulations are:
§21 CONDOMINIUM ACT:
Paragraph 4: "Of Every condominiums a management can ask which corresponds to the arrangements and decisions and, as far as those do not exist, to the interest of the totality of the condominiums at reasonable discretion."
Paragraph 5: "To a proper one, the interest of the totality of the condominiums suitable management belongs in particular:
2. the proper maintenance and repair of the common property (…)
Karlsruhe, 4th of May, 2018
Press office of the Federal Court of Justice