Management contract

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A management contract regulates the legal relationship between the homeowners association and the WEG manager appointed by it . The individual apartment owners are not party to the contract .

General

The purpose of the management contract is to guarantee the parties appropriate legal and action security with regard to their mutual rights and obligations. A management contract does not come about solely through the appointment of the manager in the apartment owners' meeting , but must be concluded with the manager by the authorized or delegated owners. After a majority decision, the majority is entitled to conclude the contract in the name of the outvoted minority. It should be noted that according to the separation principle, both the appointment of the WEG administrator and the conclusion of the management contract represent an independent legal act . The appointment means that the administrator becomes a body of the home owners association. In contrast, the manager's contract is of a contractual nature and regulates, among other things, the duties and rights of the manager.

It should be ensured that the term of office of the manager and the term of the manager contract are congruent.

Legal issues

The management agreement is for pecuniary agency agreement within the meaning of § 675 BGB to understand.

The § 305 et seq. BGB contains the general rules on terms and conditions for all types of contracts . The contract term is set there for a maximum of two years. However, the management contract has a special position. The Federal Court of Justice (BGH) has decided that the provisions of Section 26, Paragraph 1 of the Condominium Act (WEG) apply to the conclusion of the management contract . Therefore, in deviation from the general rules in the BGB, the management contract can be concluded for five years. The BGH justified this extension of the contract period with the fact that the community of owners has a factual interest in a long-term, continuous management activity. In addition, the legal regulations according to §§ 305 ff. BGB only came into force after the WEG.

However, since July 1, 2007, due to the new regulation in Section 26 (1) sentence 2 WEG, the administrator may only be appointed for a maximum of three years when first appointed after the establishment of apartment ownership.

The key points of the management contract to be concluded (duration and remuneration) must be regulated in essential outlines and are to be resolved in the same apartment owners' meeting in which the administrator is appointed.

Content of the management contract

The tasks and powers of the administrator are comprehensively listed in § 27 WEG. In addition, the contract design should also take into account other content:

  1. Exact description of the property to be managed ( housing land register , partial ownership land register ),
  2. Name / company of the administrator,
  3. Contract duration and notice periods ,
  4. Extension clause in the event that the administrator is reappointed,
  5. Duties , rights and powers of the administrator,
  6. Administrator fee ,
  7. Price adjustment agreement ,
  8. List of services for the management fee (basic services),
  9. List of services for special services,
  10. Fees for possible but not listed services,
  11. Regulation of reimbursement.

Further regulations should be: requirements for account management, for handing over the administrative documents after the end of the term of office, for inspection of files for every apartment owner, possibly for traffic safety obligations. The contract should regulate the administrator's liability, his insurance obligation and the submission of insurance policies, provisions in the event of a change in the legal form of the management company or deal with the cooperation with the management advisory board .

literature

  • Armbrüster, Becker, Merle, Pick: Condominium Act; Comment . Ed .: Bärmann. 10th, completely revised edition. Beck, Munich 2008, ISBN 978-3-406-57308-8 .
  • Ludwig Röll †, Marcel Sauren: Handbook for apartment owners and administrators . 9th edition. Dr. Otto Schmidt, Cologne 2008, ISBN 978-3-504-45708-2 .
  • living in the property eV (ed.): If there is a dispute ... about the appointment, dismissal, the manager's contract and the termination of the manager . 1st edition. living in the property eV, Bonn 2012, ISBN 978-3-9815045-0-7 .

Individual evidence

  1. ↑ Werner Merle, in: Johannes Bärman (Ed.): Apartment Ownership Act; Commentary , 10th edition, Munich 2008, § 26 Rn. 88
  2. ^ Ludwig Röll / Marcel Sauren, manual for apartment owners and administrators , 9th edition, Cologne, 2008, margin no. B 494 ff.
  3. ^ BGH, decision of June 20, 2002, Az .: V ZB 39/01 = BGHZ 151, 164
  4. ↑ BGH, judgment of February 27, 2015, Az .: V ZR 114/14 = NJW 2015, 1378