Future homeowners association

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With the term Expectant owner community is in the German residential property law , the Pre-supportive community in the transitional period between the legal creation of the condominium and the legal origin of the owner community called. During this time, there are some deviations from the rules for the normal case of an apartment owners association. This also applies in the subsequent period, insofar as it still belongs to the development phase .

Legal bases

The right of apartment ownership is mainly regulated by the Apartment Ownership Act (WEG), which, however, does not contain any express regulations on the future apartment owner association . But because there is an undisputed need for this, case law has developed corresponding rules.

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As the Federal Court of Justice has also determined, it can take years after the apartments have been sold and handed over before an apartment owners association has emerged in the legal sense. However, the residential complex must be managed and administered from the moment the apartments are ready for occupancy and handover, which sensibly should not be left to the seller alone, but should be carried out with the cooperation of the future owners in accordance with the rules whose validity the parties are striving for anyway. So there is a need for the Condominium Act to be applied accordingly to this transition phase.

Emergence

The home ownership arises in the case of the division according to § 8 OFF by applying the home registration sheets by the land registry. At this point in time, however, all the resulting residential properties still have the same owner, namely the owner of the main property (sharing owner). According to the Condominium Act, however, there is no “community” that consists of just one person (see Section 10, Paragraph 7, Sentence 4 of the WEG). Accordingly, a community of apartment owners only emerged when a new owner is entered in at least one of the associated apartment land register sheets.

However , according to a decision by the Federal Court of Justice, a prospective homeowner association already exists if there is an effective purchase contract aimed at the transfer of ownership of the apartment, the transfer claim is secured by a notice of conveyance and ownership of the apartment has passed to the purchaser. Members of the future homeowner association are all buyers who meet the above requirements (and the sharing owner, provided he has not yet been ousted by the buyers).

Legal status of the future homeowner association and its members

The provisions of §§ 10 to 29 and § 43  et seq. Apply to the future homeowner association . WEG apply accordingly. This means that the members of the future community have practically the same rights and obligations as the members of the actual homeowner community that will later emerge . The future homeowner association is already legally competent within the meaning of Section 10 (6) sentence 1 WEG. (The legal capacity of the developing community (external relationship) is also disputed, the BGH has not yet decided on this.)

Apartment owners' association legally enforced

When the first acquirer is entered in the land register as the owner (there are then two different owners: the acquirer and the sharing owner), the future community is transformed into an apartment owners association in the legal sense at this point in time . For a transitional period, this is now made up of the full owners and the other members of the earlier (terminated) nascent community. As a special case, the prospective homeowners also include a purchaser of home ownership who concludes the purchase contract before the community of homeowners comes into being and in whose favor a notice of conveyance is entered if he has only acquired ownership of the home after the community of homeowners has come into being.

The Federal Court of Justice has not yet decided on the question of whether there will also be additional buyers who will only meet all the requirements for membership of an emerging apartment owner association after the community has been established, but have already expressed a positive opinion in this regard. »The Senate only considered a time limit for the application of the principles of the prospective homeowner association to first-time buyers in view of the fact that the sharing owner could be equated with a self-buyer after a longer period of storage. [...] This would come into consideration if the purchase contract, as the first component of a secured acquisition position, is not concluded until some time after the community of apartment owners has been established. There is no need for a final decision as to whether suitable delimitation criteria can be found in this respect or whether its unlimited application to first-time buyers is to be preferred. «Until the Federal Court of Justice clarifies this, there remains considerable uncertainty in practice.

First buyer, second buyer

The special rules that put the owner of the condominium on the same level as an apartment owner in the development phase under the above conditions apply only to first-time buyers . These are those who buy the apartment directly from the sharing owner (developer). If a first buyer sells the apartment before he is entered in the land register himself, his buyer is a so-called second buyer , for whom the exception rules do not apply (he does not become an aspiring apartment owner ). The BGH justifies this essentially with the fact that the acquirer's interest in democratization is satisfied with the first acquisition of a secure legal position from the developer. From now on, the first buyer and the second buyer will be able to contractually regulate the exercise of voting rights and the bearing of costs and burdens in the internal relationship.

End of the development phase

The end of the development phase occurs when the last first purchaser is entered in the land register as the owner. This completes the apartment owners association that has been put into effect.

From this point on, there is no longer any possibility of becoming a member of the apartment owners' association as a purchaser before acquiring ownership.

literature

Individual evidence

  1. ↑ a b c d e f g Federal Court of Justice, decision of June 5, 2008 , Az. V ZB 85/07, full text.
  2. ↑ Armbrüster in Bärmann: Apartment Ownership Act, § 2 Rn. 37.
  3. ^ Crossbows in Bärmann: WEG, § 2 Rn 39.
  4. ↑ Klein in Bärmann: WEG, § 10 Rn, 16.
  5. ↑ Klein in Bärmann: WEG, § 10 Rn. 16.
  6. ↑ Klein in Bärmann: WEG, § 10 Rn. 205.
  7. ↑ Pick in Bärmann: WEG, introduction marginal no. 62.
  8. ↑ Klein in Bärmann: WEG, § 10 Rn. 17th
  9. ^ BGH judgment of the 5th civil senate of May 11, 2012 - V ZR 196/11 -. Retrieved May 30, 2017 .
  10. ^ BGH judgment of the 5th civil senate of May 11, 2012 - V ZR 196/11, margin no. 12. -. Retrieved March 18, 2018 .
  11. ↑ Becker, Apartment Ownership, 3rd Edition, § 3, margin no. 135.
  12. ^ BGH judgment of the 5th civil senate of July 24th, 2015 - V ZR 275/14, LS. -. Retrieved March 18, 2018 .
  13. ↑ BGH, V ZR 275/14, margin no. 15th
  14. ↑ Klein in Bärmann: WEG, § 10 Rn. 17th