An owner of an apartment in a homeowners' association (WEG) sues the owners of the apartment directly below her (AZ V ZR 295/16). The complaint has the content that the defendant owners sublet their apartment to changing tenants and, according to the interpretation of the plaintiff, the use of the apartment is thereby misappropriated. This is because the tenants are so-called "medical tourists" who are undergoing treatment at a nearby clinic. The plaintiff demands the omission of the use of the apartment as a boarding house.
Another reason for the complaint is that odor and noise nuisances emanate from the subtenants, which, according to the plaintiff, have an impact on her special property. The odor emissions are caused by the use of essential oils and incense, which enter the other apartments through the air conditioning and room air systems and open windows. Likewise, a high noise level emanates from the apartment - for example, by running the television. The Regional Court (LG) and the Higher Regional Court (OLG) of Munich rejected the claim. According to the ruling, the plaintiff did not have standing to sue on either point. The demand for the omission of noise and odor emissions by the subtenants cannot be demanded or asserted either by the individual owner or by the owners' association.
This is only possible if the nuisance affects parts of the common property. Only the owner of the defendant apartment could assert claims for injunctive relief, since it is her special property. With regard to the action for injunctive relief concerning subletting and the use of the apartment as a boarding house, the action on appeal has a chance of success. This is because the Federal Court of Justice (BGH) has partially rejected the judgment of the Higher Regional Court and referred the case back to that court. This is because a resolution of the WEG passed by majority vote prohibits the use of the apartments as a boarding house and thus the direct use or subletting to "medical and hospital tourists".
Source: OLG/BGH
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