Problems and solutions for consent in the sale of residential property in a forced sale pursuant to Section 12 WEG
Introduction
The forced sale of residential property is regularly pursued not only by the financing banks, but also by other creditors, especially if the debtor has no other assets or income. However, if the declaration of partition makes unrestricted use of the restriction on sale under Section 12 WEG (obligation to obtain the consent of other condominium owners or a third party to the sale of condominium property), this presents the person entitled to consent with problems that are almost impossible to solve and, above all, unnecessary.
Problems with forced sale
The problems that Section 12 WEG already entails in the case of a regular sale become even more apparent in the context of a forced sale. Consent pursuant to Section 12 WEG must be given when the bid is accepted (Section 90 (1) ZVG). Consent can be declared to the enforcement court in writing or on record. If one considers the special features of forced sale proceedings, it becomes clear that, due to the “involuntary” sale of the residential property, it is simply not possible for the seller to provide information: the person of the (prospective) purchaser is known at the earliest when the highest bidder is announced (Section 73 (2) sentence 1 ZVG). The decision by which the bid is accepted must be announced at the auction date or at a date to be determined immediately, Section 87 (1) ZVG. The date of pronouncement should not be set beyond one week, Section 87 (2) sentence 1 ZVG. As a result, the person who has to give his/her consent usually only has one week to submit it to the enforcement court. As a rule, however, a comprehensive review of the highest bidder, which is announced by the court in accordance with Section 73 (2) sentence 1 ZVG and recorded in the minutes of the auction, cannot be carried out in this short time, namely to determine whether there is good cause for refusal in accordance with Section 12 (2) WEG. The review as to whether there are grounds for refusal against the highest bidder practically comes to nothing. Due to this short period, it is likely to be difficult to check the creditworthiness of the buyer (= the highest bidder). The obligation to grant consent in combination with the merely superficial examination of the highest bidder by the person entitled to consent therefore often leads to liability on the part of the person entitled to consent – often the administrator. The person entitled to consent must grant consent despite any grounds for refusal that he could not have foreseen (without careful examination).
Proposed solutions
As a result, it is therefore recommended that the obligation to obtain consent for the sale of residential property – at least in the event that the residential property is forcibly sold – be waived in the declaration of division or that this obligation (as a restriction on sale) be waived by majority resolution pursuant to Section 12 (4) sentence 1 WEG, unless the restriction on sale pursuant to Section 12 WEG is already permissibly waived in the community rules. The prevailing opinion in the literature quite rightly states that the only meaningful purpose of Section 12 WEG in practice is to inform the administrator of a change of members in the community. To this end, it would of course suffice – de lege ferenda – to send the administrator a notification of entry in the land register (and to amend Section 55 GBO accordingly). If the declaration of partition contains a duty of consent and if this has not been revoked by resolution, the party entitled to consent must in any case apply for the award of the bid to be suspended at the auction. This will give the latter at least one week to determine and examine any grounds for refusal regarding the purchaser before the award is made at the subsequent announcement date.