In the declaration of partition of a residential complex consisting of four houses and an underground car park, the responsibilities for the management and maintenance of the residential buildings are stipulated under § 3 "Separation of the apartment buildings and the underground car park". The complex consists of houses A to D, of which house C is an old building, whereas houses A, B, D and the underground car park were newly built. The declaration of partition stipulates that the individual houses are separated from each other in terms of administration and maintenance in such a way that they are to be treated as real divided properties. Only the areas of the property that have not been built over and are not allocated as special use areas are managed by all owners and part owners.
Due to moisture damage in house C, which occurred after renovation work, it was decided at the owners' meeting of house C to commission an expert to diagnose the masonry and prepare a renovation concept. The costs of a maximum of 18,000 euros are to be borne by the maintenance reserves of the owners of House C. One of the owners of the affected house C filed an action for annulment against the resolution adopted (AZ V ZR 199/19). She is of the opinion that all owners of the residential complex (houses A-D) must bear the costs, as these relate to the rectification of initial construction defects.
Thus, the plaintiff refers to the paragraph stipulated in the declaration of division, according to which the costs for subsequent repair measures are to be borne by all five management units. The Local Court and Regional Court uphold the action and justify the decision by stating that the costs for the initial defect-free construction must be borne jointly in accordance with Section 16 (2) of the German Condominium Act (WEG). The Federal Court of Justice (BGH) overturns the rulings and rejects the owner's claim. This is because residential buildings in a condominium complex that are economically separated from each other and are considered real divided properties are subject to building law provisions. The legal matters and the separation of responsibilities into individual parties is only effective if each sub-community is economically responsible for itself. This also applies to "subsequent maintenance measures" resulting from initial errors.
Source: BGH
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