Administrative Advisory Board

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The administrative council is in the Condominium Act in residential property provided council with an advisory function .

General

The administrative advisory board advises and supports the condominium administration as a body , it is not an acting body and has no authority to represent the condominium association. It serves the self - responsible self-administration . The homeowners association is fully operational and functional even without an administrative advisory board.

This administrative advisory board should not be confused with similar functions in companies such as the GmbH , where it is also not a body.

Legal issues

The Condominium Act (WEG) provides for the condominium assembly ( Section 23 (1) WEG) and condominium management ( Section 26 (1) WEG) as the bodies of the apartment owners . The administrative advisory board, on the other hand, is not an organ within the meaning of § 31 BGB . He is also not legally required, but the apartment owners may by majority vote the appointment of an Advisory Board decide ( § 29 para. 1 WEG). The community regulations can, however, provide for an administrative advisory board, in which case it must also be appointed. The elected administrative advisory board consists of one apartment owner as chairman and two other apartment owners as assessors . Deviations from this may only be made by unanimous agreement; otherwise no advisory board has been established. One of the assessors can be appointed as the chairman's representative ( Section 24 (3) WEG). If the illegal decision to appoint only a two-person management advisory board had not been challenged in good time, the Community would have effectively appointed a two-person management board because of the validity of the decision.

The departure of an advisory board member does not lead to the dissolution of the advisory board. If an advisory board member resigns, the advisory board will continue to exist as a body with a reduced number of members as a so-called rump or shrinking advisory board, so the advisory board position of the other members remains unaffected. However, every homeowner is then entitled to a supplementary election to fill the advisory board.

tasks

As an auxiliary and control body, the Administrative Advisory Board only performs additional functions. The tasks of the administrative advisory board are finally listed in § 29 WEG. After that, the administrative advisory board supports the property management in carrying out its tasks. The business plan , the annual accounts on the business plan, accounts and cost estimates should be checked by the management advisory board and given its opinion before the apartment owners' meeting decides on them. He also prepares the apartment owners meeting with the administrator and supervises the administration and house rules . The administrative advisory board is not obliged to provide information to individual apartment owners outside of the apartment owners meeting. He is the permanent representative of the owners' meeting vis-à-vis the administration. There is no duty of the Advisory Board members to encourage the administrator to fulfill his duties . Section 29 (2) WEG does not provide for a general duty to monitor or to issue instructions to the administrator. If an apartment owner appointed to the administrative advisory board leaves the community of owners, his activity on the advisory board ends .

The administrative advisory board is not a representative body of the apartment owners (and also not a supervisory body, such as a supervisory board of a stock corporation) vis-à-vis the administrator, unless these competencies have been expressly assigned to it by agreement of the apartment owners. The manager is not bound by the recommendations of the management board, but is solely responsible to the homeowners association. Often, however, the owners make resolutions that the administrator should implement “in coordination with the management board”. However, due to the ambiguous rule "in vote" (is consent meant, majority or full?), Such a resolution does not have any legal force , because it is to be regarded as void due to the uncertainty. The Administrative Advisory Board may not conclude any contracts for the community in individual cases without authorization, not even with the administrator.

The chairman of the administrative advisory board or his representative can invite to the apartment owners meeting according to § 24 Abs. 3 WEG if an administrator is missing or he refuses to convene the meeting contrary to his duty. According to Section 24 (6) of the WEG, one of the tasks of the chairman or his representative is to also sign the minutes of the apartment owners' meeting.

discharge

In practice, it has become the rule to discharge the administrative advisory board after one year. As a rule, with the resolution on the discharge of the administrative advisory board, the apartment owners approve its past performance in the respective period as in accordance with the law, the community order and its contractual obligations and as appropriate; in this way they express their confidence in him for future work. The consequence of this declaration of confidence is the occurrence of the effects of a negative admission of guilt . At the same time, the owners express their confidence in future activities in this way.

If no agreement on the period of appointment is contained in the community regulations as part of the declaration of division or has been resolved within the framework of the appointment of the advisory board, the administrative advisory board is appointed for an indefinite period.

literature

  • Christian Armbrüster, Johannes Bärmann: Condominium Law. Comment. 11th edition. Beck, Munich 2010, ISBN 978-3-406-60576-5 .
  • Thomas Spielbauer, Michael Then: WEG: Condominium Act with further regulations. Comment. Erich Schmidt, Berlin 2008, ISBN 978-3-503-11039-1 .
  • Birgit Rücker, Gabriele Heinrich, Sandra Weeger-Elsner: Help, we are an administrative advisory board. A practical guide with checklists for advisory boards and apartment owners. Owned living - Die Wohneigenthaber e. V., Bonn 2014, ISBN 978-3-9815045-2-1 .

Web links

Individual evidence

  1. ↑ Steffen Haase, Administrative Advisory Board , 2018, o. P.
  2. ↑ BGH NJW 2010, 3168
  3. ↑ Florian Streibl, Your rights in the apartment owners' meeting , 2011, p. 80
  4. ^ BGH, judgment of February 5, 2010, Az .: V ZR 126/09
  5. ↑ BayObLG NJW 1972, 1377, 1378
  6. ↑ Florian Streibl, Your rights in the apartment owners' meeting , 2011, p. 81
  7. ↑ Florian Streibl, Your rights in the apartment owners' meeting , 2011, p. 89
  8. ↑ BGH, judgment of February 23, 2018, Az .: V ZR 101/16 = NJW 2018, 2550
  9. ↑ BGH, judgment of February 23, 2018, Az .: V ZR 101/16, margin no. 66.
  10. ↑ BayObLG ZMR 1993, 127, 129
  11. ↑ BGH, decision of July 17, 2003, Az .: V ZB 11/03 = BGHZ 156, 19 , 26 f.
  12. ↑ BGH, judgment of February 23, 2018, Az .: V ZR 101/16, margin no. 65