Just start building, the others won’t mind? Apartment owners shouldn’t let that happen – otherwise, in the worst case, they’ll have to undo everything. For a good two years, there has been a so-called compulsory decision before structural changes to community property. And the courts cannot turn a blind eye here, as the Federal Court of Justice (BGH) made clear in a first judgment on Friday.
In the case from Bremen, the owners of a semi-detached house had started building a pool in their part of the garden without any consultation. The neglected neighbor defended herself against this in court – and was successful with her injunctive relief in the last instance.
The background is a major reform of the Home Ownership Act, which was implemented on December 1, 2020. An important innovation is that structural changes to the common property should only be possible if everyone has agreed on it beforehand.
At the same time, the individual owners have the right to be granted permission for certain projects by resolution. This applies to construction measures that politicians want to promote in particular – for example, if an underground car park is to have charging stations for electric cars. And also for structural changes “which do not affect any apartment owner in a legally relevant way,” as the explanatory memorandum states.
Rather unusual case
The neighbors in the Bremen semi-detached house form a rather atypical community of owners, with only two parties. The garden belongs to the common property, even if each side uses only half of it.
As the presiding judge Bettina Brückner explained, the owners of terraced or semi-detached houses usually give each other more freedom through the community regulations. In the 1970s, however, it was only stipulated that the relationship between the owners was determined by law.
So the new law applies as in all other, larger homeowners’ associations – including the obligation to make decisions. The lawyer for the neighbors with the pool had argued during the hearing that this did not do justice to the situation at all: Up until now, everyone had done what they wanted and there had never been an owners’ meeting.
But the top civil judges see no scope for exceptions. Brückner said that before the reform there was a lot of argument about whether a resolution was needed or not. The legislator wanted to put an end to this – everyone should always be informed in advance.
Only possible with prior approval
Nothing can be done afterwards either: If the resolution is missing, the other owners can, according to the BGH, demand that construction work be stopped – regardless of whether there is any impairment for them at all. For Brückner, this is “not just a formality”: it is thought that the person who wants to build has to take care of the necessary decision for his project in advance. Also because it is often not so clear whether someone could be impaired or not. “That’s why you can’t just start building.”
If the others do not give the green light, even though the builder is entitled to permission, he has to go to court. This then examines the case – and, if it is in the right, gives it the necessary approval instead of the owners’ meeting.
According to the judges in Karlsruhe, what sounds cumbersome ultimately has advantages for everyone: Brückner said that it was clear once and for all that the structural change was permissible. Even if the owner changes later, there is no need to worry that the barrel will be opened again. (Ref. V ZR 140/22)
