BGH judgement: WEG resolutions passed with power of attorney during the coronavirus pandemic are valid

The Federal Court of Justice (BGH) has ruled that resolutions passed by a homeowners' association during the coronavirus pandemic are not void because the homeowners were only able to participate in the owners' meeting by granting a power of attorney to the administrator. The question of whether this alone constitutes grounds for contesting a resolution remained open.

The plaintiffs are members of a condominium owners' association. During the coronavirus pandemic, their administrator issued a written invitation to the owners' meeting with a request to authorise her and issue voting instructions. 

Five of the twenty-four flat owners complied with this request. The plaintiffs did not grant any authorisation. After the meeting, the administrator announced that the condominium owners had been represented at the meeting held by her alone on the basis of the authorisations granted. At the same time, she sent a transcript of the resolutions passed.

The BGH only examined the grounds for nullity because the plaintiffs had missed the one-month deadline for bringing an action under section 45 sentence 1 WEG and came to the conclusion that the resolutions were "not null and void".

However, the convening and organisation of the owners' meeting did not comply with the provisions of the German Condominium Act. This is because a condominium owners' meeting generally requires a physical meeting of the condominium owners. 

A so-called representatives' meeting is only permissible if all condominium owners agree to it and authorise the administrator to attend and vote. According to Section 23 (4) WEG, however, a resolution is only void if it violates a statutory provision, compliance with which cannot be effectively waived. However, this does not include the formal requirements for convening and holding an owners' meeting. 

(Photo: © Jo Miletzki, BGH)