BGH ruling: Compulsory resolution by condominium owners in the case of structural changes confirmed

The Federal Court of Justice (BGH) has ruled that, under the new German Condominium Act (Wohnungseigentumsgesetz), condominium owners must, if necessary, obtain a resolution granting permission for a structural change not provided for in the community rules by way of an action to replace the resolution before the construction work is started.

The matter: The disputants live in a condominium owners' association with two semi-detached houses. The semi-detached house is located on a plot of land owned jointly. The relationship between the condominium owners is determined by law: Each condominium owner has a special right of use to the garden in front of the respective half of the house. The owners are jointly responsible and liable to pay for repairs and maintenance. 

The defendant party wants to build a swimming pool on its own garden half against the will of the other party. When construction began, the neighbors filed an action for an injunction. The dispute went through the lower courts and ended up at the BGH - also because the action had still been brought under the old law. 

The BGH ruled: The defendants are entitled to a special right of use to half of the property. However, this special right of use does not entitle them to fundamental alterations which, like the construction of a swimming pool, go beyond the usual use. It is up to the condominium owner who is willing to build to bring about a resolution to grant permission, if necessary by way of an action to replace the resolution (Section 44 (1) sentence 2 WEG), before the construction work is started. (UBGH, 17.03.2023,V ZR 140/22).

The ruling is also interesting with regard to solar installations. According to Section 20 (2) WEG, condominium owners can demand reasonable structural changes that serve the use by people with disabilities, the charging of electrically powered vehicles, burglary protection and the connection to a telecommunications network with a very high capacity, but not the installation of a balcony solar system.

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