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Monday, March 27, 2023

Real Estate: Pool in the neighboring garden? Dispute between owners before the BGH

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Some want to change something in the system, others are against it – construction projects often cause disputes in owner associations. New rules have been in force for a good two years. Now the first cases reach the final instance.

The pool is already under construction, but the neighbor stands in the way: A dispute between the owners of two semi-detached houses in Bremen occupied the Federal Court of Justice (BGH) on Friday (9:00 a.m.). The respective gardens belong to the community property. Nevertheless, one side has started on its own to build a swimming pool on its half of the property. The neighbor was not asked – now she is complaining.

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The case is interesting because a fundamentally reformed home ownership law has been in force since December 2020. One of the new features is the so-called obligation to make a decision: Structural changes to the common property should only be possible if all owners have previously agreed to it.

At the same time, the individual owners of certain projects have the right to be allowed to carry them out by resolution. This applies to construction measures that politicians want to promote in particular – for example, if an underground car park is to have charging stations for electric cars. And also for structural changes “which do not affect any apartment owner in a legally relevant way,” as the explanatory memorandum states.

Pool construction failed before the district court

The neighbors with the pool think that nobody will be disturbed here. The insistence on a decision is therefore “mere formality”.

The district court of Bremen, on the other hand, recently let the pool construction fail because of this. Without a resolution, there is no obligation to tolerate, according to the verdict – “an apartment owner could otherwise violate the obligation to make a resolution and the pre-emption requirement without consequences”. The highest civil judges in Karlsruhe now have the last word. Whether there will be a verdict on the day of the trial remains to be seen.

The consumer protection association for residential property hopes that the Federal Court of Justice will expressly confirm the “compulsory decision”. For the peace in the community of owners, it makes more sense if those who want to build their co-owners poured the clear wine from the outset, said legal officer Michael Nack. It shouldn’t be the case that others are presented with a fait accompli and then haggled over subsequent approval.

Julia Wagner, head of civil law at the Haus & Grund Germany owners’ association, also says: “If the BGH were to agree with the owners with the pool, that would completely undermine the decision-making authority of the community.” In addition, the litigation risk would be shifted to the community. Because it is actually the task of the owner who wants to build, to obtain a resolution in the assembly and, if this does not succeed, to sue.

Source: Stern

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