Apartment owners meeting

In the case of home ownership , the apartment owners 'meeting is an organ of the apartment owners' association , which is responsible for decisions and will-formation of the apartment owners within the framework of self-administration .

General

The condominium consists of two condominium owners, so that the right question is how they will enforce their interests. The Condominium Act (WEG), analogous to company law , has decided to set up a form of assembly that functions in a similar way to the shareholders' meeting, which acts as an organ for the decisions and will-formation of the apartment owners. That is why the WEG regulates the convening , quorum , voting , voting rights and voting weight for the apartment owners' meeting .

Legal issues

The rights and obligations arising from private property and joint property belong to the apartment owners ( Section 10 (1) WEG); they result specifically from Section 13 WEG (property rights) and Section 14 WEG (obligations). The - non-public - apartment owners' meeting decides in accordance with Section 20 (1) WEG on matters that the apartment owners can decide on according to the WEG or an agreement between the apartment owners. This includes matters of home ownership management ( Section 21 (1) and (3) WEG), use ( Section 15 (2) WEG) and the basic community relationship ( Section 12 (4) WEG, Section 16 (3) and (4) WEG, Section 21 ( 2) WEG) . 7 WEG).

According to Section 24 of the WEG, the meeting is to be convened at least once a year by the administrator in text form ( Section 126b of the German Civil Code ); the notice period must be two weeks. The administrator takes over the chairmanship of the apartment owners meeting (§ 24 Abs. 5 WEG), the apartment owners exercise their voting rights regardless of the amount of their fractional ownership ( § 3 Abs. 1 WEG in connection with § 1008 BGB); each owner has one vote ( Section 25 (2) WEG); In practice, a distribution of voting power based on co-ownership shares (value principle or the number of units owned by an owner) is more common. According to Section 28 (5) of the WEG, the apartment owners have to decide in the assembly on the business plan and the annual accounts . The apartment owners can request invoices from the administrator at any time by means of a majority resolution (Section 28 (4) WEG). Although the WEG regards the apartment owners as original members of the assembly, they may also be represented by the administrator or tenant and third parties by means of a voting power of attorney, provided this is permitted by the community regulations. Restrictions on representation may, however, keep the assemblies of apartment owners free from influences outside the community.

Further responsibilities of the apartment owners assembly

Further areas are defined in the WEG, on which the apartment owners' meeting can decide. This applies in particular to the ongoing management of common property such as

proper administrative measures,
Rules on the use of common property ,
Maintenance and repair ,
Appointment and removal of the administrator ,
Authorization of the administrator to assert claims,
Appointment of a management board or
structural changes and expenses.

In addition, the community regulations can assign further competencies to the apartment owners' meeting.

Invitation and agenda

According to Section 24 (1) and (2) of the WEG, the apartment owners' meeting must be called by the administrator at least once a year; also in cases stipulated in an agreement between the apartment owners or if more than a quarter of the apartment owners request it. If an administrator is absent or if he refuses to convene the meeting in breach of duty, the convocation can also be made by its chairman or his deputy if an administrative advisory board ( Section 29 WEG) has been appointed ( Section 24 (3) WEG). The invitation must be in text form. The invitation period is two weeks, unless there is a case of particular urgency. The invitation must contain an agenda in which the resolution items are clearly identified so that the invited owners know in advance what is to be voted on. If resolution items are not on the agenda, they cannot be resolved on either ( Section 23 (2) WEG). However, this does not apply to resolutions that regulate the course of the meeting or its chairmanship.

Quorum

As chairman, the administrator has to determine that the meeting has a quorum in accordance with Section 25 (3) WEG . There is a quorum if the voters present or represented hold the majority of all co-ownership shares entered in the housing land register. If a meeting does not have a quorum, the administrator can call a new meeting with the same agenda, which then has a quorum on these agenda items regardless of the co-ownership shares represented. This must be indicated in the invitation. A so-called contingent convocation is only permitted if the declaration of division contains a corresponding regulation. Contingent convocation means that the original invitation to a new homeowners meeting will be held if it does not have a quorum. Only when the meeting actually has no quorum can a new meeting be invited.

The quorum can be regulated differently in the declaration of division. In this z. B. stipulate that the meeting has a quorum regardless of the number of people present; this then means that in the extreme case of a single owner present, the meeting has a quorum.

procedure

Resolutions of the owners' meeting are to be passed with a simple majority , unless the law or the declaration of division provide for a qualified majority or unanimity . The administrator is appointed by a simple majority in accordance with Section 26 (1) WEG. In contrast, unanimity is required for changes to the declaration of division, structural changes ( Section 22 (1) WEG), circular resolutions ( Section 23 (3) WEG), a ban on renting to holiday guests and, in Austria, also for usage regulations. Abstentions have no influence on the ratio of yes and no votes cast; they are considered not to have been cast.

Resolutions on structural changes and expenditures in accordance with Section 22 (1) WEG that go beyond proper maintenance and repair are a special feature . In principle, such measures can only be adopted with the consent of all apartment owners (exception: Section 22 (1) sentence 2 WEG). In addition, it is possible, according to Section 22 (2) WEG, to adopt measures that serve to modernize in accordance with Section 559 (1) BGB or to adapt common property to the state of the art with the so-called “double qualified majority” (majority of three quarters of all apartment owners entitled to vote and more than half of all co-ownership shares).

The decisions taken must be clear and should not leave any room for interpretation. If this content-related certainty and clarity is missing, a resolution can be contested or even void . In both cases, judicial proceedings according to Section 43 No. 4 WEG are possible for clarification .

Voting weight

According to Section 25, Paragraph 2 of the WEG, every apartment owner has one vote. Even an owner of several apartments has only one vote in the apartment owners' meeting (head principle). As a rule, however, the voting weight is regulated differently in the declaration of division. Common forms are:

the value principle : The voting weight is based on the co-ownership shares. It can happen that an owner who owns several apartments controls the apartment owners meeting. Another disadvantage is that it is more time-consuming to determine the voting result at larger apartment owners' meetings.
the object principle : According to this, each apartment stands for one vote. This can lead to distortions if the apartments are of different sizes.

Voting rights in the case of several owners of a condominium

If several owners (e.g. spouses, partners, siblings) share a condominium, they still only have one vote, which according to Section 25 (2) sentence 2 WEG can only be exercised uniformly. Often it is regulated in the declaration of division that such communities have to nominate a representative for the administrator who is entitled to vote, otherwise the right to vote in the apartment owners' meeting is suspended.

Exclusion from voting

For reasons of possible conflict of interests , an apartment owner is not entitled to vote if the resolution contains a legal transaction with him (Section 25 (5) WEG). Even if the initiation or settlement of a legal dispute is to be decided with him, he is not entitled to vote.

Transcript

The resolutions of the assembly must be recorded in writing ( Section 24 (6) of the WEG). Unless otherwise agreed, these minutes must be signed by the chairman (chairman of the meeting), an apartment owner and, if an administrative advisory board has been appointed, by its chairman or his representative, in accordance with Section 24 (6) sentence 2 WEG. The prerequisite for this is that the aforementioned apartment owners also took part in the meeting, otherwise the signature is not required.

According to Section 24 (6) of the WEG, every apartment owner is entitled to inspect the minutes. The individual owner thus has the right to inspect the record, but has no right to have a copy sent. The WEG does not stipulate that the minutes of the owners' meeting be sent to the owners. Deviating from this community orders and usually also the management agreements stipulate that the manager is obliged to copies of the meeting minutes to the owners to be sent.

decisions

Decision Collection

Since July 1, 2007, a collection of resolutions has to be kept in addition to the minutes in accordance with Section 24 (7) WEG. The collection of resolutions only contains the wording of the announced resolutions with the details of the place and date of the meeting, the same for written resolutions and the formulas for judicial decisions in a legal dispute in accordance with Section 43 WEG (contestation procedure, etc.). An apartment owner or a third party authorized by an apartment owner is to be given access to the collection of resolutions upon request ( Section 24 (7) WEG). The collection of resolutions is to be carried out by the administrator ( Section 24 (8) sentence 1 WEG). If the collection of resolutions is not carried out properly, this is usually an important reason for the removal of the administrator ( Section 26 (1) sentence 4 WEG).

Resolutions without a meeting

A resolution is also valid without a meeting (so-called circular resolution ) if all apartment owners have given their consent to this resolution in writing ( Section 23 (3) WEG). This requirement of unanimity is borrowed from association and GmbH law and serves to protect minorities , since such decisions are made without discussion and consultation. The initiative for such a circular resolution can also be taken by any apartment owner, he is then the head of the voting and must announce the resolution. Such a decision only becomes legally effective when it is announced to all apartment owners.

Nullity and contestability of resolutions

A resolution is null and void if it violates a legal provision, compliance with which cannot be waived with legal effect ( Section 23 (4) sentence 1 WEG). Typical cases of void resolutions are, for example, the establishment or restriction of special rights of use , establishment of the purchaser's liability for premium arrears of the seller, etc. A void resolution does not have any legal effect from the outset. Its nullity can be asserted at any time (even long after the decision).

Resolutions that are not null and void, but that may have been taken illegally, can only be challenged after their promulgation ( Section 23 (4) sentence 2 WEG). They apply, even if they are incorrect, but until a final court judgment determines that they are invalid. It is of great importance that the challenge can only be asserted within one month after the resolution has been passed by means of a judicial action ( Section 46 (2) sentence 2 WEG). If this deadline missed, a really illegal decision becomes final, if it is not void (see jitter decision ).

If an action for annulment directed against a resolution was rejected as unfounded, a possible nullity of the resolution can no longer be asserted ( Section 48 (4) WEG).

Validity of resolutions against legal successors

Resolutions of the apartment owners are also against legal successors , z. B. Housing buyers or heirs, legally valid ( § 10 Abs. 4 WEG). They are not to be entered in the land register. A home buyer should therefore find out about the currently valid resolutions in good time by inspecting the collection of resolutions. Every apartment owner or a third party authorized by an apartment owner is entitled to inspect ( Section 24 (7) WEG).

Implementation of the resolutions

According to the Federal Court of Justice (BGH), it is the administrator as the executive body that is responsible for implementing the resolutions of the apartment owners' association . When it comes to the implementation of renovation decisions, this includes not only placing the order in the name and at the expense of the homeowners association, but also checking that the contracted renovation company has carried out the work in full. If necessary , if there are any doubts or problems with the contractor of the homeowners association, the manager must deal with the subject again and bring about decisions on how to proceed. Even if the BGH mentions that the execution of the resolution is reserved for the administrator and is legally protected ( Section 27 (4) WEG), it does not change the fact that the apartment owners are authorized to issue instructions to the administrator. Craftsmen, site managers or architects who are commissioned by the administrator to carry out a decided renovation on behalf of the apartment owners association are not vicarious agents of the association in relation to the individual apartment owners within the meaning of Section 278 (1) BGB. For damage that such contractors culpably cause to private property, the homeowners' association is not usually liable, but the damaging party due to the breach of obligations under a contract with protective effect in favor of third parties. If the administrator remains inactive or implements the resolutions incompletely or incorrectly, the administrative advisory board can be involved; even though he is not entitled to issue instructions, he must in any case influence the administrator. Furthermore, the owners' meeting can be called with the aim of instructing the manager or even issuing a warning or dismissal .