BGH ruling: In which cases may the WEG community conduct lawsuits due to defects?

The Federal Court of Justice (BGH) also had to examine whether the community of condominium owners was authorised to conduct the lawsuit at all in a case concerning contaminated sites on a property in Munich. This was because the Condominium Act changed during the many years of litigation.

In 2020, the Condominium Act (WEG) was reformed. Among other things, the right to take legal action was newly regulated, i.e. the question of when the community and when individual condominium owners can enforce rights in court. However, the legal dispute in Munich over the contaminated sites began even before the reform.

Under the previous legal situation, the community was clearly allowed to take over the action. After the reform, this was no longer so clear, and the BGH in Karlsruhe first had to clarify this question as well. The court decided (BGH, 11.11.2022, V ZR 213/21): The rights of flat buyers to have defects in the common property remedied can be enforced by the community in court even after the WEG reform. If the owners do not wish to sue individually, they can instruct the community to sue, as under the old law.

The case in question concerned a condominium complex in Munich on the site of a former gravel pit. The real estate company that had sold the flats originally planned to add an underground car park to the complex and had the soil of the property examined for this purpose. Pollutants left over from the previous use were found in the soil, which are toxic, environmentally hazardous and carcinogenic. Although this was mentioned in the purchase contracts for the flats, the soil was not remediated. The community filed a complaint against this. It demanded the recognition of the contaminated sites as a defect or their removal.

The court did not make a final decision on the merits of the case, but referred the case back to the lower court because further investigations of the soil are first necessary for the purposes of hazard research.

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