BGH decision on structural changes in WEG

Today I would like to present to you an interesting decision by the Federal Court of Justice on structural alterations to a COA. The decision was issued on July 19, 2024 (default judgment) and has the case number V ZR 226/23.

The guiding principles are as follows:

a) Since December 1, 2020, the condominium owners have been able to decide on a structural change even if the right to use the common property intended for this purpose is to be permanently granted only to the condominium owner willing to build (continuation of Senate, judgment of February 9, 2024 - V ZR 244/22, NJW 2024, 1030 para. 14).

b) The authority to pass a resolution to permit a structural change also exists if the resolution leads to the fact that the use of the common property provided for in an agreement is in fact no longer possible.

c) The condominium owners do not have the authority to determine by resolution the compensation payments that the condominium owners who are permitted to make a structural change are to make to the other condominium owners.

The BGH thus confirms that the resolution on structural changes (possible under simplified conditions since December 2020) can also lead to a "de facto special right of use". This is to be welcomed for reasons of legal certainty, as otherwise many desired structural changes would be economically pointless. Guiding principle c) can of course lead to some communities exercising restraint when permitting structural alterations; and the (understandable) desire to compensate for the creation of the de facto special right of use through payment led to the overall nullity of the resolution in this case due to a lack of decision-making competence. In practice, it may be necessary to think about other ways (agreements under the law of obligations outside the WEG are certainly possible or, if necessary, a resolution subject to a condition precedent).

For us notaries, it is primarily important to clearly define and specify the areas of special rights of use in the community regulations during the initial division, as well as the requirements and limits of such powers.