A tenant of a part-ownership unit operates an ice cream parlor on the first floor of a residential condominium. In the declaration of partition, the rented unit is designated as a "store". Both in the premises and in front of the ice cream parlor there is a lot of public traffic, tables and chairs invite visitors to stay. The members of the condominium owners' association (WEG) feel disturbed by the background noise of the gastronomic operation and initiate an action for injunction (AZ V ZR 271/18) against the tenant.
The Federal Court of Justice (BGH) confirms the injunctive relief of the WEG members pursuant to Section 1004 (1) of the German Civil Code (BGB) and upholds the action. According to the BGH, the sales aspect of a "store" is in the foreground, whereas in the case of an "ice cream parlor" the customer of a "store" becomes a guest. In addition, the noise generated in the ice cream parlor is significantly higher than in a "store". Accordingly, the court sees the operation of an ice cream parlor as a misappropriation of the special property.
The BGH justifies the fact that the WEG community was allowed to direct the action directly against the tenant and does not have to take action against the owner with the fact that the owner may only hand over to the tenant the rights that he himself has. If the resolution to use the special property as a "store" is entered in the land register, the agreement between the condominium owners becomes the content of the special property and restricts the owner's possibilities of use. Thus, the use of the special property may neither be used by the owner nor by the tenant contrary to the intended purpose.
Source: BGH
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