Communities of homeowners can go to court in the event of defects even after a change in the law. The Federal Court of Justice (BGH) made this clear with a judgment announced on Friday in a case from Munich. From the point of view of the presiding judge of the fifth civil senate, Bettina Brückner, the clarification was “extremely important” for practice. Julia Wagner from the House Owners’ Association

The background to the question is that there was a paragraph in the Housing Ownership Act in the version valid until the end of November 2020, from which it was derived that owner associations can adopt and enforce defect rights from individual purchase or work contracts of the purchaser by resolution. In the case of a legal reform, however, this regulation of “communalization by resolution” was dropped without replacement. Experts have drawn different conclusions from this so far.

“If you took the law at its word, there would now only be two options,” said judge Brückner. The fact that only communities of owners are allowed to take action against defects in communal property does not make much sense, since it is a question of individually acquired rights. In turn, an apartment owner who independently pursues the elimination of defects is fundamentally acting in the interests of all other apartment owners. The BGH therefore rejected overly narrow views, emphasized Brückner. Basically, the previous, flexible practice will remain in place.

Homeowners are asking for land refurbishment

In the specific case, a real estate company had sold apartments in a building complex in Munich. When examining the soil on a gravel pit that had been filled in, it was noticed that the property was contaminated with benzo(a)pyrene. The substance is considered toxic, dangerous for the environment and carcinogenic. According to the information, there are children’s play areas in the courtyard.

The new apartment owners want the company to renovate the property. They also want the contaminated sites to be recognized as defects. In owners’ meetings in 2014 and 2015, they decided by a majority to assert the “claims of the community of apartment owners” in court. Then came the reform of the law.

Most recently, the Munich Higher Regional Court sentenced the company a year ago to clean up the contaminated sites – but only insofar as the value of 0.5 milligrams of benzo(a)pyrene per kilogram of soil is exceeded. The Federal Court of Justice has now partially overturned this judgment and referred the case back to a new hearing. So far, only test values ​​are known that do not yet justify the assumption of a material defect, explained Brückner. It needs a more detailed investigation.

After the reform of the Home Ownership Act, the Federal Court of Justice decided in 2021 what happened to proceedings that individual apartment owners had started before the change: They too may continue their processes – as long as the community of owners does not actively intervene and inform the respective court of this in writing.