Community order
The community order (GemO) regulates the rights and obligations of the apartment owners among each other in the German residential property law. It is an autonomously set basic order of the community , which is usually established when the owner of a home is established.
The community order is made as an agreement on the relationship between the apartment owners to the content of private property ( Section 5, Paragraph 4, Clause 1 in conjunction with Section 10, Paragraph 2, Clause 2 and Paragraph 3 of the Condominium Act , WEG). As a result, these rules are firmly linked to home ownership and also apply to every legal successor ( reification ).
The GemO makes it possible for the homeowner association to have its own law replace the flexible provisions of the WEG.
Term (synonyms, delimitation, other conceptions)
The term community order does not appear in the Condominium Act. However, it is used both in practice and by the legal specialist literature. The terms agreement, co-ownership system, statute or statute are also used synonymously for community order (GemO). In some cases, a broad term GemO is used which, in addition to the agreement, also includes the decisions of the apartment owners, any court decisions and the legal provisions. In practice, however, the narrower term GemO used here has established itself.
Apartment owners (and in some cases also administrators) often speak of the declaration of division when referring to the community order, because the GemO is usually included in the deed with the declaration of division. Nevertheless, there is a clear difference in content: the declaration of division establishes the ownership of the apartment, the community structure defines the relationship between the apartment owners.
Creation of the community order
In most cases, the community order is determined by the property owner when submitting the declaration of division ( Section 8 (1) WEG), with which the residential property is "justified" (legally created). (The fact that an individual “concludes an agreement” here, which is purely conceptual not possible, does not change their legal qualification.) But the apartment owners can also establish community regulations at a later point in time. However, all apartment owners must agree to this in a notarized form.
The establishment of a community order is not mandatory. If there is no agreement of the apartment owners with such content, their legal relationship is based solely on the statutory provisions.
Interests of those involved
At the time of the split, the dividing owner usually neither knows the future owners nor their ideas about “togetherness”. Nor does he regularly intend to be part of the community for longer than is necessary for the sale of the condominiums. Because of these prerequisites, it is understandable that many community systems are more of a hindrance than a benefit to the later owners.
Typically, condominium buyers pay far more attention to all sorts of other aspects of home buying than to the GemO (if they are even aware of its existence). This neglect of the legal basis of the condominium, in turn, is what saves the sharing owner having to take special care in drawing up a GemO.
For the apartment owners, the possibly existing inadequacy of a GemO usually only becomes clear when there are already conflicts of interest between them.
The "cemented" GemO
If the GemO does not contain an opening clause , the attempt by homeowners to change a GemO that has been identified as inadequate or even obstructive can be a difficult undertaking. Not only must all (!) Apartment owners agree to the text of the change (or a complete new version), this fact must also be recorded with the notarized signature of each and submitted to the land registry for registration with a corresponding application and approval . In addition, the “real beneficiaries” from all housing land registers involved - typically the banks with mortgages or land charges - must give their approval (also in a notarized form).
Because - even with a very large majority in the sense of the planned change - there are usually individual owners who have something to complain about (or who in fact delay or refuse to authenticate their signature), there is often talk of cementing the GemO once it has been registered.
Interpretation of GemO
In contrast to an agreement under the law of obligations, the interpretation of which may have to take into account the will of the parties ( § 133 , § 157 BGB ), the ( reified ) GemO entered in the land register must initially be interpreted strictly according to its wording.
Possibilities for shaping the law through the community order
The WEG contains a large number of provisions on the coexistence of apartment owners. A portion of these provisions is compliant or dispensable , another part is unyielding or public policy . The mandatory (dispositive) provisions of the WEG can be changed with appropriate regulations in the community order. For example, the WEG stipulates in Section 25 (2) WEG that every owner has one vote in the apartment owners' meeting (head-voting principle). Even co-owners who own several apartments have only one vote in the statutory case. That would e.g. B. lead to the fact that the property developer can already be overruled in the homeowners meeting after the sale of a few apartments, although he still owns most of the apartments in the complex. Not least for this reason, it has long been customary to regulate voting rights differently via the community order, e.g. B. one vote per apartment (object voting principle) or one vote per thousandth of co-ownership.
In most cases, little use is made of the possibility of setting own rights for the respective homeowners association .
Example from the case law of the Federal Court of Justice
The Federal Court of Justice (BGH) ruled on January 15, 2010 that renting a condominium (not partial ownership ) to holiday guests who change on a daily or weekly basis is to be regarded as an apartment use and is therefore permissible. In 2007 the Court of Appeal answered this question in the opposite way. In such a vacation home use, the holiday guests live next door to the permanent residents (owners or their tenants). In some cases, this leads to disturbances in house peace, especially in large cities, to which “adventure-oriented” holiday guests are drawn.
The majority of a community of owners, if they consider the use of a vacation home to be disruptive, according to this judgment of the Federal Court of Justice, has no opportunity to defend themselves against the use of a condominium as a vacation home by owner resolution. Only on the way of an "agreement of the owners", e.g. B. a corresponding regulation in the GemO, this use is to be prevented.
Of course, it will hardly be possible to change the GemO if the holiday home is already being used, because the owner who operates this rental will usually not agree. If, however, a new GemO is being formulated today for a newly emerging homeowners association, it might be appropriate to take the judgment into account.
literature
- Bärmann: Condominium Act. Commentary , 11th edition, Munich 2010, ISBN 978-3-406-60576-5
- Jennißen (Ed.): Apartment Ownership Act , Cologne 2008, ISBN 978-3-504-45062-5
- Seuß, Hanns: The condominium , 11th edition, Munich 2000, ISBN 3-423-05096-9
Individual evidence
- ↑ a b c Klein in Bärmann, WEG § 10 Rn. 83.
- ↑ Klein in Bärmann, WEG § 10 Rn. 68.
- ↑ Klein in Bärmann, WEG § 10 Rn. 129 f.
- ↑ a b BGH judgment of January 15, 2010. Az. V ZR 72/09, full text
- ↑ Az. 24 W 276/06 . Superior Court. May 31, 2007. Retrieved April 19, 2019.
