Homeowners Association

The condominium association (WEG) is in condominium law in Germany the entirety of the partial and condominium owners of a condominium complex .

General

All apartment owners and part owners are united in the apartment owners association. Your apartment and part ownership must therefore give 100% of the voting rights in the apartment owners 'meeting - the body of the apartment owners' association.

Legal issues

The condominium association arises with the granting of condominium ownership in accordance with § 3 WEG , membership in the condominium association is inextricably linked with apartment ownership. The organs of the homeowners association are the homeowners' meeting and the homeowner management ; the administrative advisory board is not an organ within the meaning of Section 31 of the German Civil Code (BGB) , but has an advisory role in the administration . The owners' meeting became the decisive body, the legal structure of which was partly borrowed from company law in the interests of effective administration ; In addition, the appointment of an administrator as a foreign body was mandatory . The apartment owners' meeting must be called by the administrator at least once a year ( Section 24 (1) WEG).

The legal capacity of the community of homeowners is not comprehensive, but limited to those parts of legal life in which the homeowners participate in legal transactions as a community within the framework of the management of common property. According to Section 10, Paragraph 6 of the WEG, the homeowners association is partially legally competent and capable of participating in parties . It is neither a legal person nor a company under civil law , but to be regarded as an association . “On the other hand, the partial legal capacity does not mean that the homeowners association should be viewed as a special form of society under civil law”.

Joint accounts

In the decision V ZB 32/05 of the Federal Court of Justice of June 2, 2005, the partial legal capacity of the homeowners association was recognized.

In decision VIII ZR 243/13 of the Federal Court of Justice of March 25, 2015, the following was recognized:

A WEG is a consumer within the meaning of Section 13 of the German Civil Code (BGB) if it is neither commercially nor self-employed, and if at least one member of the community is a consumer.
The fact that the community is represented by a commercial administrator when the contract is concluded does not change anything in the WEG's consumer status.

From the decision VIII ZR 243/13 it follows among other things that

the joint accounts for the management and reserves of the apartment owners association are to be opened and managed as private (giro) accounts of the apartment owners association and not as (operationally used) business (giro) accounts of the administration,
(Delivery) contracts for z. B. Gas and water for the homeowners association are to be taken out for private customers and not for business customers. The conclusion of an energy supply contract by a homeowners association is a private asset management business.

Condominium Act

Section 27 (5) Condominium Act: The administrator is obliged to keep the monies received separate from his property. The disposal of such funds can be made dependent on the consent of an apartment owner or a third party by agreement or resolution of the apartment owners with a majority of votes.

Prior to the recognition of the partial legal capacity of the WEG, joint accounts could only be opened and managed as trust accounts, account holder: the administration . However, trust accounts have significant legal disadvantages for homeowners.

Disadvantages of escrow accounts:

Account holder: The administration
Account form: (operationally used) business (current) accounts of the administration
not seizure-proof and not insolvency-proof against liabilities of the administration
Savings banks / banks have a right of set-off and / or retention for claims by third parties against the administration
With trust accounts where the account holder is the administration, it is impossible to keep the community funds separate from the administration's assets. Funds in trust accounts are added to the administration's assets.

Since the recognition of partial legal capacity, WEG own accounts may also be opened and managed for the WEG. Another term for WEG own accounts is also open foreign (money) accounts.

Advantages of the WEG own accounts

Account holder: The homeowners association
Owner of the community funds: the WEG
Account form: Private (giro) accounts of the WEG as a consumer according to § 13 BGB
seizure-proof and insolvency-proof against liabilities of the administration
no right of set-off and / or retention of savings banks / banks due to third party claims against the administration
If necessary, WEG can access its joint accounts and receive information.
If there is a change of administrator, there is no need to change the account, as only a change in the power of attorney and the administrator address is required.
WEG own accounts may not be used by the administration in the context of their business activities. The community funds may only be used for the interests of the homeowners association.

Assets and Liability

According to Section 10 (7) of the WEG, the administrative assets belong to the community of apartment owners ( joint ownership ). It consists of the legally established and legally acquired items and rights as well as the liabilities that have arisen within the framework of the overall management of joint property . This makes it clear that administrative assets consist not only of assets , but also of liabilities . According to Section 10 (8) WEG, each apartment owner is liable to a creditor in proportion to his co-ownership share ( Section 16 (1) sentence 2 WEG) for liabilities of the community of apartment owners that arose during his membership of the community or became due during this period. A creditor can claim one or more apartment owners directly on a pro rata basis. The administrative assets of the apartment owners' association are incapable of insolvency in accordance with Section 11 (3) WEG . For liability after the sale of the apartment property, Section 160 of the German Commercial Code (HGB ) applies accordingly. A resigning apartment owner is therefore liable like a partner in a general partnership .

Dissolution of the apartment owners association

The apartment owners association is indissoluble according to Section 11 (1) WEG. Even the right of a seizure creditor from § 751 BGB as well as the right existing in insolvency proceedings ( § 84 para. 2 InsO ) to demand the dissolution of the community is excluded. In fact, however, there is the possibility of amicable repeal and conversion into a fractional community ( Section 17 WEG). Only in the event that more than 50% of the building is destroyed and there is no obligation to rebuild under the community order, the dissolution can be requested. Then the apartment owners association is transformed into a community of fractions on the property.

International

In Austria , the apartment owners' association is expressly a legal person with (partial) legal capacity in accordance with Section 2 (5) of the WEG 2002 in conjunction with Section 18 (1) of the WEG 2002 , who acquire rights and incur liabilities in matters relating to the administration of the property, as well as suing and suing can be. In Switzerland there is condominium ownership , the community that belongs to it is called Condominium Owner Association , a legally mandated “legal community of property law”.