Compulsory resolution for structural changes:
"Just build on it", does not work!
In its ruling of 17.03.2023 (file number IV ZR 140/22), the Federal Court of Justice (BGH) decided that a prior approval resolution is essential for structural changes to the common property in accordance with Section 20 Condominium Act (WEG). Anyone who does not reach an agreement with the owners’ association in advance may not (continue to) build. According to the German Condominium Modernization Act (WEMoG), which came into force on 01.12.2021, structural changes are now regulated in Section 20 WEG and no longer in Section 22 WEG.
1. Facts of the case (simplified)
The parties form a community of condominium owners (GdWE). The complex consists of two semi-detached houses. In the half of the garden used by them, the defendants intended to build a swimming pool against the will of the plaintiff. After the start of construction, the plaintiff first obtained a construction stop by way of an interim injunction. Her action for an injunction filed in November 2020 was successful before the Bremen Local Court. The Bremen Regional Court dismissed the appeal, if only because a permitting resolution pursuant to section 20 (1) WEG was lacking. The plaintiff filed an appeal against this decision, which it based in particular on a claim for permission pursuant to Section 20 (3) WEG.
2. Decision of the BGH
The BGH confirmed the decision of the Bremen Regional Court. The plaintiff is entitled to injunctive relief pursuant to Section 1004 (1) sentence 2 BGB in conjunction with Section 20 WEG, since a permission resolution according to Section 20 (1) WEG is missing.
According to the BGH, the construction of a swimming pool is a structural change within the meaning of Section 20 (1) WEG, which requires a permission resolution of the GdWE. Since the requirement of a permit by resolution was not waived either in the – supplemented – community rules or impliedly, a permit resolution of the condominium owners willing to build had to be obtained at the latest before the start of construction. The BGH considers the fact that the legislator decided in favor of a compulsory resolution in accordance with Section 20 (1) WEG new version to be decisive for its decision. Before the WEMoG came into force on 01.12.2020, it was disputed whether such structural changes required a resolution. According to the BGH, the new regulation in the WEMoG is now intended to ensure that the condominium owners are informed promptly about all structural changes to the common property and that the condominium owner willing to build gains an advantage through a legally binding resolution and as a result of the legal certainty it creates. In addition, the resolution also has a binding effect vis-à-vis special successors. The BGH further explains that in the event of a refusal of permission, i.e. in the event of a negative resolution, the necessary permission must be obtained in court by way of an action to replace the resolution pursuant to Section 44 (1) sentence 2 WEG, and this must be done before the start of construction.
In particular, the BGH did not see any claim of the defendant under Section 20 (3) WEG in conjunction with Section 242 German Civil Code (good faith) opposing the injunctive relief. Admittedly Section 20 (3) WEG gives a building-willing apartment owner in principle a right to change the community property. However, even if a structural change to the common property does not affect any condominium owner in a legally relevant manner, a legitimizing resolution in accordance with Section 20 (1) WEG is required beforehand. A cease-and-desist claim of the other condominium owners, which has been exercised by the GdWE since 1.12.2020 (Section 9a (2) WEG), cannot be countered by the condominium owner willing to build by invoking good faith that he is entitled to a claim for permission, in particular if he begins construction against the declared will of the other condominium owners, because the violation of the obligation to adopt a resolution and the preconception requirement would then remain without consequences. The BGH sees due to the new version of the Section 20 (1) WEG the obligation with the building-willing to raise a resolution replacement complaint. In contrast, the other condominium owners are not to be forced into the role of having to work towards the filing of an action by the GdWE. However, the BGH didn’t have to decide on this question, whether a fully completed structural alteration, which can be claimed under Section 20 (3) WEG, must be dismantled.
It is therefore urgently advisable for condominium owners who are willing to build to obtain a permit before making any structural changes to the common property. In the event of an unauthorized start of construction, the party willing to build may incur considerable costs as a result of the construction stop, in particular in the event of an injunction or a judgment enforced omission, not least due to the fact that the contractor may claim consequential damages (lost profit) against the builder. The time involved should not be disregarded either.
Although it is possible to obtain a permit resolution in writing by way of circular procedure pursuant to Section 23 (3) sentence 1 WEG without holding an owners’ meeting, this procedure isn’t very promising, since without a so-called lowering resolution pursuant to Section 23 (3) sentence 2 WEG, an unanimous decision is always required in this case.