Legal costs incurred in an action for a resolution by a homeowners' association must also be borne proportionately by the victorious plaintiffs. This was decided by the Federal Court of Justice (BGH) (V ZR 139/23). The ruling is based on the reformed German Condominium Act of December 2020, which stipulates that all members of a community must share in the administrative costs, including the legal costs arising from resolution proceedings.
In this case, three condominium owners from Rostock successfully brought an action against a community resolution. The local court ordered the condominium owners' association to bear the costs of the proceedings. The costs of around 800 euros per condominium unit were then allocated to all eight condominium units via a special apportionment, including the successful plaintiffs. They challenged this with an action for annulment.
Without success. The BGH confirmed that the legal costs are part of the usual administrative costs and must therefore be distributed fairly. According to the BGH, however, "it cannot be denied that this cost consequence - especially in small communities - can deter potential plaintiffs from bringing an action". However, there is no unintended regulatory gap. This only exists if a legislator has inadvertently failed to regulate a situation.
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