Maintenance reserve

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The maintenance reserve (also maintenance reserve , repair fund , reserve or renewal fund ) is a reserve for the long-term maintenance of the market value of condominiums in accordance with the Condominium Act (WEG). There are various methods for calculating the funds to be regularly transferred to the provision - one of the best-known is Peters' formula .

Germany

According to Section 21 (5) No. 4 WEG, the maintenance provision is the prescribed accumulation of an appropriate amount of money through regular transfers , from which the necessary repairs and maintenance , repairs , if necessary also modernizing maintenance, are financed on the common property in the future.

term

The Condominium Act speaks of maintenance provisions. These are expenses for repairs to the common property, the occurrence of which is fundamentally certain, but the specific amount and due date are uncertain . This term does not contradict the legal term of the provision as it is used in accounting and tax law . From a commercial point of view, the maintenance provision is not a reserve , because the reserved funds are earmarked as expenses for future repairs and are therefore not to be regarded as equity . In legal practice, the term maintenance reserve has obviously prevailed, which is also used by the Federal Court of Justice and the Federal Fiscal Court in more recent decisions (as far as can be seen, consistently).

meaning

The accumulation of an adequate maintenance reserve is part of a proper administration, which every apartment owner can demand and, if necessary, even enforce in court. The administration of the maintenance reserve is usually the responsibility of the administrator. A withdrawal from the maintenance reserve is only permitted for repair and maintenance measures on the common property. Their use for running costs is only permitted in the event of short-term liquidity bottlenecks. The maintenance reserve is part of the administrative assets ( Section 10 (7) sentence 3 WEG) and is not paid out when the apartment is sold. The amount of the monthly contributions to the maintenance reserve is to be determined in the business plan and decided by a majority in the apartment owners ' meeting.

It is raised proportionally by all co-owners. The distribution key is based on the co-ownership share , unless otherwise agreed in the community order (imprecisely also called declaration of division). The size of the individual apartments in square meters is often used as the distribution key.

An estimate of the total expected maintenance costs for the common property can be made, for example, using Peters' formula . The formula is only suitable for older systems. According to a rough rule of thumb from the BVI - Bundesfachverband der Immobilienverwalter eV, an annual allocation to the maintenance reserve of 0.8 to 1.0% of the purchase price from the time the building is completed is appropriate for new systems. Other sources, however, list significantly lower maintenance reserves, e.g. B. depending on the age of the property between € 7.10 and € 11.50 per square meter per year.

The manager continues to § 27 para. 5 WAY obliged the Community funds, including the maintenance reserve, separately from his own assets to hold. This is particularly important if the administrator files for bankruptcy so that these funds do not flow into the bankruptcy estate but remain with the homeowners' association. Furthermore, according to the prevailing view in legal literature, the administrator has for several years been obliged to keep the funds of the community only in bank accounts that are made out in the name of the homeowners association.

literature

International

Austria

The reserve (also repair fund ) according to § 31 WEG is property of the apartment owners' association and not a proportional co-ownership .

purpose

An appropriate reserve ( § 28 Paragraph 1 Z. 2 WEG) is to be formed for the entire property and to be paid proportionally by all co-owners. The administrator is obliged and authorized to prescribe and collect the reserve ( Section 28 (1) (2) WEG) and to invest it in a separate bank account with interest.

The reserve is used to save financial resources for necessary expenses for the property (relative purpose). These expenses relate to maintenance or improvement work that does not recur annually.

Liability Fund

The reserve forms the most important liability fund for the creditors of the homeowners association ( Section 18 (3) WEG).

Literature Austria

Liechtenstein

The renovation fund under Liechtenstein law is within the condominium association (art. 170a et seq. SR), where one exists, the major part of the administrative assets. The regulations on the Liechtenstein condominium owner association (Art. 170a ff SR) and the renewal fund (Art. 170l f. SR) stem largely from Swiss law (Art. 712a ff. ZGB) and, with the exception of liability, the statements on Swiss Right with regard to the renewal fund can also be transferred to the renewal fund under Liechtenstein law.

purpose

The renewal fund is administered, filled and used according to the will of the condominium owners' association (as a rule, it is administered by the administrator in the sense of Art. 170s SR). There are no regulations on minimum assets and the renewal fund can be dissolved again at any time under the conditions stipulated there if this has been agreed in the act of justification, the basic regulations or regulations. In principle, third parties have no right to obtain information about the existence, financial situation, etc. of the renewal fund. The land register only insofar as every significant change, for example the existence or dissolution, if this already appears in the land register, must be entered or changed.

The management and investment of the renewal fund must be carried out with the care of a prudent businessman. All ordinary and extraordinary income from the Renewal Fund's assets must benefit the Renewal Fund. The investment itself must be carried out with as little risk as possible and a burden on the renewal fund beyond its effective value is not permitted.

Further asset components can be, for example, ownership of movable property for cleaning the property or claims against third parties for contractual or non-contractual liability (for example Art. 61 SR or Section 1319 ABGB ). The other assets are also directly attributable to the legal entity "Condominium Association" and are therefore not withdrawn from the creditors of the Condominium Association and, like the renewal fund, are not insolvent.

Resolutions on the establishment, the existence and the dissolution of the renewal fund and the acquisition and sale of further assets as well as claims against third parties etc. are to be made with a simple majority, unless otherwise stipulated in the act of foundation, the basic regulations or regulations.

Liability Fund

The renewal fund belongs directly to the legal entity "Condominium Association" and, in contrast to the Swiss legal situation, does not form a special fund in Liechtenstein. The property of the condominium community is therefore not withdrawn from the creditors of the condominium community and is not bankrupt. Claims can be asserted directly against the condominium community. The condominium owner has an obligation to make additional contributions if the assets are insufficient. The execution of the creditors of the condominium community can only be carried out against the existing assets of the condominium community, but not in the co-ownership or condominium shares. A creditor of the condominium association can, in the name of the condominium association according to Art. 170i Para. 2 and 3 SR, request the entry of a joint lien on the condominium's shares on the contribution claims, if one does not already exist.

Literature Liechtenstein

Switzerland

The renovation fund is under the condominium association (art. 712a et seq. CC), where one exists, the major part of the administrative assets.

purpose

The renewal fund is administered, filled and used according to the will of the condominium owners' association (as a rule, it is administered by the administrator in accordance with Art. 712s ZGB).

The management and investment of the renewal fund must be carried out with the care of a prudent businessman. All ordinary and extraordinary income from the Renewal Fund's assets must benefit the Renewal Fund. The investment of the assets of the renewal fund itself must be carried out with the lowest possible risk. Charging the renewal fund beyond its effective value is not permitted.

There are no regulations on minimum assets in the fund and the renewal fund can, if this has been agreed in the justification act or in a regulation, be dissolved again at any time under the conditions specified there.

As a matter of principle, third parties have no right to obtain information about the existence of the fund, the financial situation and the like of the renewal fund.

Resolutions on the establishment, the existence and the dissolution of the renewal fund and the acquisition and sale of further assets as well as claims against third parties etc. are to be made with a simple majority of the condominium owners, unless otherwise stipulated in the act of establishment or in regulations.

Liability Fund

The renewal fund is a special fund, since the condominium community is expressly not a legal entity in Switzerland . The property is therefore withdrawn from the creditors of the condominium community and is bankruptcy-proof.

According to Art. 712l Para. 1 ZGB, the condominium association acquires the assets resulting from its administrative activities.

Individual evidence

  1. ^ Wolf-Rüdiger Bub, apartment property from A - Z , 1991, p. 518
  2. ↑ Maintenance reserve: appropriateness of the savings / amount of the reserve on haufe.de ; Retrieved August 22, 2020.
  3. ↑ Werner Merle, in: Johannes Bärmann / Eckhart Pick / Werner Merle (eds.), Condominium Act - Commentary , 2010, § 27 Rn. 212.
  4. ↑ Condominium Act 2002 , ÖBGBl. I No. 70/2002.
  5. ↑ This paragraph was taken from: Antonius Opilio , Working Commentary on Liechtenstein Property Law , Volume I, Art. 170l, Rz 5 ff, EDITION EUROPA Verlag.
  6. ↑ This paragraph was taken from: Antonius Opilio, Working Commentary on Liechtenstein Property Law , Volume I, Art. 170l, Rz 5 ff, EDITION EUROPA Verlag.
  7. ↑ According to Art. 712l Para. 2 ZGB, the condominium association can, however, sue and operate as well as complain and operate under its name.