On the basis of the condominium ownership law reformed in 2020, the Federal Court of Justice (BGH) has issued guidelines in two proceedings on how condominium owners can decide on a cost allocation that deviates from an agreement in the community rules.
The case: The co-owner of a residential complex, which includes an underground car park with 15 parking spaces, filed a lawsuit. The community regulations from 1971 assign the use of the parking spaces exclusively to certain residential units and stipulate that the costs for the maintenance of the garage hall are to be borne exclusively by these residential units. The plaintiff has no special right of use to a parking space. In April 2022, the condominium owners decided to have the roof of the garage renovated and to allocate the costs to all condominium owners in proportion to their co-ownership shares.
The decision (BGH, 14.02.2025, V ZR 236/23, V ZR 128/23): The agreed distribution of costs according to co-ownership shares means that condominium owners without a parking space must also pay for the renovation of the underground car park roof. The required resolution authorisation is also present if the group of cost debtors is changed by charging condominium owners with costs for the first time. The contested resolutions are lawful. The authority to pass resolutions to change the applicable distribution key is derived from section 16 para. 2 sentence 2 WEG. Unlike in the past, section 16 (2) sentence 2 WEG now (also) provides authorisation to change the distribution key for the allocation to the reserve. Under the old law, a change to the cost allocation was only possible in individual cases.
Section 16 (2) sentence 2 WEG no longer contains such a restriction. The resolved change to the cost allocation is also a deviating allocation for certain types of costs within the meaning of section 16 (2) sentence 2 WEG. How the phrase "certain types of costs" is to be understood has been disputed to date. The BGH has now ruled that this wording merely emphasises the general requirement of certainty that applies to resolutions and does not establish any further requirements.
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