Condominium

Condominium or condominium means verbüchertes (ie in the Land Registry registered) property on a floor in a house that no Superädifikat (Austria) is. In Germany and Austria floor is mostly s property written while in Liechtenstein and Switzerland the spelling condominiums (no "s") is common.

Condominiums according to currently applicable law exist in Switzerland and the Principality of Liechtenstein. A distinction must be made between condominium ownership under the old law according to the respective earlier law that existed in Germany, Austria, Switzerland and the Principality of Liechtenstein.

Condominium ownership and apartment ownership are in practice a compromise between sole ownership (e.g. own home ) and collective ownership and can accordingly contain the advantages and also the problems of both forms of ownership. In contrast to Hellenistic and Germanic law , Roman law did not recognize condominium ownership. A similar effect as with condominium was for legal traffic in Roman law z. B. made possible by the establishment of a heritable building right and only later by exceptional provisions.

The floor owner, like the apartment owner, has to develop a sense of community because, unlike the tenant, his special rights mean that he is more strongly bound to the property (right) and can adapt flexibly to the surroundings and changed conditions. The principles of neighboring law are also applicable to condominiums.

Austria Germany

Real shared condominium ownership can no longer be re-established in Austria today. Any existing condominium is still valid. Instead, co-ownership of a property can be established according to ideal quotas. In the case of apartment ownership, a co-owner has the sole right to use an apartment.

In Germany , too, there was condominium ownership in the period before the BGB came into force in 1900. This has remained in place ( Art. 182 EGBGB ), but new condominium ownership can no longer be established.

Instead, there is now residential property in Germany and Austria .

Principality of Liechtenstein - Switzerland

The term condominium is used in Liechtenstein and Switzerland . It has its origin in Art 170 SR or Art 712a ff ZGB .

According to Liechtenstein property law (SR) and the Swiss Civil Code, condominium ownership is the share of co-ownership in a property, which gives the co-owner the special right to use certain parts of a building exclusively and to expand the interior. The condominium owner is free to manage, use and structure his own rooms, but must not make it difficult for other condominium owners to exercise the same rights and in no way damage the communal components, systems and facilities or impair their function and external appearance (Art 170a SR; Art 712a ZGB).

Condominiums in the sense of Swiss and Liechtenstein property law are not actually shared condominiums in the actual sense of the word. Rather , condominium ownership within the meaning of Swiss and Liechtenstein property law is “qualified” co-ownership , which is much closer to the legal institutions “residential property” in Austria and Germany than real shared condominium ownership in Germanic or Hellenistic law. It would therefore be correct to designate condominiums as “qualified co-ownership” within the meaning of Swiss and Liechtenstein property law.

Community of owners

Germany

With the decision of the Federal Court of Justice of June 2, 2005, a partial legal capacity of the homeowners association was recognized in Germany, while abandoning previous case law . Before that, in Germany, a homeowners association was not considered legally or party-capable in case law. The practice had already had apartment owners' associations conclude contracts independently and in their own name for years. Since July 2007, the community of owners, according to § 10 6 WEG Para. Some legal capacity , and a party to .

Austria

In Austria, the homeowners' association is expressly a legal person with (partial) legal capacity in accordance with Section 2 (5) in conjunction with Section 18 (1) WEG 2002, who can acquire rights and commitments in matters relating to the administration of the property, as well as sue and be sued. The homeowners association is represented by the manager or, if one is not appointed, by the majority of the homeowners. However, an enforcement title issued against the community of owners can only be enforced against the existing reserve (§ 31 WEG 2002) or against the payments made or owed by the apartment owners for expenses (§ 32 WEG 2002) (§ 18 para. 4 WEG 2002).

Switzerland

The Swiss Federal Supreme Court is of the legal opinion that the condominium owners' association is partially legally competent in that it has “certain corporate features” and “in the area of joint administration a limited capacity and capacity to act with corresponding litigation and enforcement ability”. The Swiss condominium owner association is a legally mandated “legal community of property law” which exists to protect the interests of condominium owners, but according to prevailing doctrine and case law in Switzerland not a legal person. In Switzerland, on the occasion of the introduction of the legal institution of condominium ownership, the legal capacity of the condominium community was expressly excluded.

Liechtenstein

In Liechtenstein, as in Switzerland, on the occasion of the reception of the provisions on condominium ownership, a reservation was not made regarding the possibility of qualifying the community of condominiums as a legal person with partial legal capacity . The structure of the condominium owners' association in Liechtenstein clearly shows the corporate structure and the fundamental recognition of partial legal capacity. For Liechtenstein, as in Germany and Austria, it can therefore be assumed that the condominium community represents a legal person in this context and that this legal person has partial legal capacity, which enables them to acquire rights and undertake obligations independently (see Art 170l SR ).

According to Art 933 PGR , the provisions of the "simple legal communities" regulated there are also subsidiary to some co-ownership and condominium communities with certain ideal quotas (Art 933 para. 1 first case PGR) and all other communities (Art 933 para. 3 PGR) to be used (but not for the collective hand - Art 933 para. 2 PGR, the personal communities, such as community of heirs and the community of property etc. - Art 933 para. 1 second and third case PGR).

In addition to the civil-law norms of the SR and the FL-ABGB , corporate law norms of the PGR are to be applied to some co-owner associations and the condominium association, whereas only the norms of property law (SR) and FL-ABGB apply to others .

Recent developments

The system of condominium ownership and co-ownership for residential purposes is currently found to be inadequate in Switzerland and in many other countries, and there have been considerations for a number of decades to create “small home ownership”. This could e.g. B. in the context of building law ("spatial law" - Art 779m - 779r ZGB) or in the context of condominium ownership ("spatial property" - Art 712a ff ZGB). Other systems of property-like tenancy rights are also known and have been or are being investigated (e.g. structures to promote home ownership in the community in Australia, home finance models in the USA such as housing partnerships, etc.).

Today's tenants with less financial strength are to be put in a position to acquire property permanently or temporarily. Various systems have been thought through to achieve this. B. a mixing of tenancy law with property law or the mixing of floor and co-ownership rules would result.

literature

Gerald Kohl: Condominium. History, theory and practice of the material building division with special consideration of legal facts from Austria . Duncker & Humblot, Berlin 2007, ISBN 978-3-428-12294-3 , (Writings on the history of European law and constitution, 55).

Gabriele Freudling: Genuine condominium property under old law in Bavaria , magazine of the Savigny Foundation for Legal History , German Department, Vol. 116, Vienna-Cologne-Weimar 1999, p. 384 ff.

Antonius Opilio , Working Commentary on Liechtenstein Property Law , Volume I, Art 170 ff, EDITION EUROPA Verlag, 2009, ISBN 978-3-901924-23-1 .

Individual evidence

↑ It is therefore not unjustifiably popular in the vernacular that “half a house is half a hell” can be
↑ In Austria, real shared condominium ownership is no longer permitted for justification since the enactment of the law of March 30, 1879 on the division of buildings according to material shares (RGBl. 50/1879) (§ 1). The scope of the law was extended by Art. XVI, RGBl. 77/1897 also on Tyrol and with RGBl. 44/1900 also extended to Vorarlberg .
↑ In the case of so-called qualified co-ownership, condominium ownership under Liechtenstein and Swiss law, in addition to the simple (ordinary) co-ownership that the condominium owners have over the entire property, there are special rights (no separate ownership or sole ownership of the floor). These special rights with real effect entitle the respective co-owner who has these special rights, in principle, to exclude any other co-owner and also third parties from the representation, use, use and use of the co-property, insofar as this is covered by the special right, and to exclude the rooms assigned to him internally free to design and redesign.
↑ BGE 125 II 348, 350f.
↑ See “Message from the Federal Council to the Federal Assembly on the draft of a federal law amending the fourth part of the civil code (co-ownership and condominium ownership) of December 7, 1962”, BBl 1962 II 1461 ff, 1492.
↑ See e.g. B. David Dürr "Small Apartment Ownership, A New Proposal for Property Scattering", Housing Series of the Federal Housing Office, Volume 68, 1999.
↑ See preliminary draft of a partial revision of the Swiss Civil Code (real estate and land register law), March 2004, VE 2004 report. Art. 779m ff VE-ZGB.
↑ This mixing of the principles of property law has, however, also met with criticism in Switzerland. The creation of spatial law itself is not seen as expedient either (see the opinion of the Association of Swiss Land Register Administrators of October 6, 2006 on the partial revision of the Civil Code).

[1] It is therefore not unjustifiably popular in the vernacular that “half a house is half a hell” can be

[2] In Austria, real shared condominium ownership is no longer permitted for justification since the enactment of the law of March 30, 1879 on the division of buildings according to material shares (RGBl. 50/1879) (§ 1). The scope of the law was extended by Art. XVI, RGBl. 77/1897 also on Tyrol and with RGBl. 44/1900 also extended to Vorarlberg .

[3] In the case of so-called qualified co-ownership, condominium ownership under Liechtenstein and Swiss law, in addition to the simple (ordinary) co-ownership that the condominium owners have over the entire property, there are special rights (no separate ownership or sole ownership of the floor). These special rights with real effect entitle the respective co-owner who has these special rights, in principle, to exclude any other co-owner and also third parties from the representation, use, use and use of the co-property, insofar as this is covered by the special right, and to exclude the rooms assigned to him internally free to design and redesign.

[4] BGE 125 II 348, 350f.

[5] See “Message from the Federal Council to the Federal Assembly on the draft of a federal law amending the fourth part of the civil code (co-ownership and condominium ownership) of December 7, 1962”, BBl 1962 II 1461 ff, 1492.

[6] See e.g. B. David Dürr "Small Apartment Ownership, A New Proposal for Property Scattering", Housing Series of the Federal Housing Office, Volume 68, 1999.

[7] See preliminary draft of a partial revision of the Swiss Civil Code (real estate and land register law), March 2004, VE 2004 report. Art. 779m ff VE-ZGB.

[8] This mixing of the principles of property law has, however, also met with criticism in Switzerland. The creation of spatial law itself is not seen as expedient either (see the opinion of the Association of Swiss Land Register Administrators of October 6, 2006 on the partial revision of the Civil Code).