In a condominium owners' association (WEG), it was decided by majority resolution at the owners' meeting on June 7, 2018 to have the maintenance of the outdoor facilities carried out by a specific company. Two condominium owners filed an action for annulment against this resolution at the beginning of July. However, this was rejected in the final instance (AZ V ZR 71/20). This is because the plaintiff owners transferred their apartment in 2011 to their daughter, who was listed as the owner in the land register.
The parents and first-time owners retained usufruct of the apartment, which in principle entitles them to file an action to contest the resolution. However, the action must be brought by the condominium owner within the court-appointed time limit for bringing an action pursuant to Section 46 (1) sentence 2 subsection 1 of the German Condominium Act (WEG). Even if an owner, in this case the daughter, can in principle authorize a usufructuary to file an action for avoidance, the authorization to file an action must be submitted to the court within the period of one month after the resolution.
In this case, the plaintiffs (parents of the daughter) did not notify the court until September 2018 that they had transferred their property to the daughter in 2001. Along with the notice, they also submitted a power of attorney, post-dated to May 24, 2001, authorizing them to assert their rights in the proceeding in their own name as litigants. Since the usufructuaries were not condominium owners when the action was filed and there was no authorization within the time limit for filing an action, the action for avoidance is unfounded. The plaintiffs missed the time limit for filing an action pursuant to § 46 (1) sentence 2 BGB. The examination of grounds for invalidity pursuant to § 23 (4) sentence 1 WEG also provided no grounds for challenging the resolution.
Source: BGH
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