Condominium Act 2002
|Title:||Condominium Act 2002|
|Long title:||Federal Law on Homeownership|
|Scope:||Republic of Austria|
|Legal matter:||civil right|
|Reference:||BGBl. I No. 70/2002|
|Date of law:||April 26, 2002|
|Effective date:||July 1, 2002|
|Last change:||Federal Law Gazette I No. 58/2018|
|Please note the note on the applicable legal version !|
The Austrian Condominium Act 2002 ( WEG 2002 or rarely only WEG ) came into force on July 1, 2002 in place of the older Condominium Act 1975 and regulates home ownership. Apartment ownership means having the exclusive right of use and disposal over an apartment property and at the same time also being a co-owner of the property on which the apartment property is located. The Condominium Act also contains comprehensive regulations on mutual rights and obligations of homeowners and on the management of a property.
Changes to the Condominium Act 1975
The main components of the WEG 1975 were retained in the WEG 2002, but the paragraphs were reorganized and some major innovations were made. The most important are:
- Redesign of the joint property of the spouses to the current owner partnership,
- new rules for contesting resolutions,
- new requirements for decision-making, in particular for resolutions that are made by circulation,
- Obligation of the administrator to convene an owners' meeting every two years,
- Possibility of appointing an owner representative who represents the interests of the owner towards the manager and
- Revised regulations for the user agreement.
The Condominium Act 2002 is divided into 64 paragraphs in twelve sections and two articles.
The sections are divided as follows:
- Section 1: Subject matter and definitions
- Section 2: Establishment and acquisition of residential property
- Section 3: usable area, value in use, minimum share
- Section 4: Owner partnership
- Section 5: Use of the condominium and the general parts of the property
- Section 6: community of owners, administrator, preferential lien
- Section 7: property management
- Section 8: Termination of Apartment and Co-Ownership
- Section 9: Protection of the home owner
- Section 10: Temporary home ownership by the sole owner
- Section 11: Procedural and Fees Regulations
- Section 12: Final and Transitional Provisions
Condominiums and accounting
According to Section 2 (2) WEG 2002, a condominium is an apartment or other independent space (e.g. a shop , an ordination , but also a row house ) or a parking space for motor vehicles (both in an underground garage , in the form of a carport or a free-standing garage or outdoors) on which residential property has been established. The establishment of apartment ownership is only possible if the space can be used independently. For example, an object must be accessible through its own entrance door and must not be behind another object.
Furthermore, accessories that are not directly connected to the property (such as a cellar compartment or a garden ) can be connected to an apartment property . In this case, the owner of the condominium is also entitled to use the accessories. Until the amendment to the WEG in 2002, parking spaces were usually shown as accessories and not as independent condominium objects. Since then, parking spaces can be sold like other condominiums, although there are restrictions in the first three years after the establishment of condominium.
So that the owners and their condominium properties can be entered ( booked ) in the land register , the co-ownership shares of the property must be determined for each of the condominium properties. This is done in a so-called utility value report (also parificate ), which according to § 9 WEG 2002 must be prepared by a civil engineer for building construction or a generally sworn and court-certified expert for building construction or real estate . In this report, each of the condominiums is given a specific designation and an ideal share of ownership ( utility value or minimum share ) in the overall property , which is determined on the basis of various factors such as location and size.
Together with the utility value, an exclusive right of use, which is inextricably linked to the share, of the respective condominium property is entered in the land register, which represents the essential difference between condominium ownership and simple co-ownership. The basis for the entry in the land register is both the utility value appraisal and the condominium contract concluded between the owners .
Like any other property in the land register, residential property can in principle be sold, rented, leased, encumbered or bequeathed without the consent of the co-owners.
The owner partnership is a special form of home ownership (described in Section 13 of the WEG 2002 as joint home ownership by the partners ). This is the further development of the joint property of spouses , which was already anchored in the WEG 1975 , whereby the owner partnership can be formed from any two natural persons. Each owner holds half a minimum share of the respective condominium. For liabilities arising from the Condominium both partners adhere to jointly and , furthermore both owned shares can only be charged together. The owners can only jointly dispose of the use of the condominium and, for example, only exercise their voting rights jointly at owners' meetings.
Condominium applicant and condominium organizer
If condominium ownership is established on a property for the first time and the utility values cannot yet be entered in the land register (e.g. in the case of a property development contract ), one of the two contracting parties can apply for a note in the land register that the condominium has been granted and a corresponding inscription must be entered in the land register sheet. In this case, the future homeowners are referred to as the homeowner and the property developer or other seller of the properties is referred to as the homeowner organizer. A home owner can still dispose of his holdings freely and, for example, sell or encumber them. The entry of the granting of residential property can also take place in the event of a later sale of properties.
Community of owners
In order to manage the general parts of the property, all apartment owners form the community of owners in accordance with § 18 WEG 2002 (often abbreviated ETG or outdated WEG ). In the context of administration, she can enter into rights and obligations , sue and be sued.
To represent the community of owners, a majority of the apartment owners, calculated according to co-ownership shares, can appoint an administrator (often also referred to as a property manager or property manager ). This represents the community of owners vis-à-vis third parties, such as companies or authorities . If no administrator has been appointed, the community of owners is represented by a majority of the owners, also calculated on the basis of co-ownership, in this case the first owner named in the land register is authorized to deliver the documents addressed to the community of owners (such as invoices for property tax) . Furthermore, anyone who might be interested in properly representing the community of owners (such as the municipal office ) can apply to the court to appoint a temporary administrator . Comprehensive provisions were made in Section 21 of the WEG 2002 to terminate existing administrative contracts . In the WEG 2002, every type of administrator is obliged to follow the instructions of a proportional majority of the owners, provided these are not illegal. The manager is also always the unrestricted representative of the community of owners for third parties.
The most important tasks of the administrator are:
- The collection of advance payment contributions to cover the current expenses, such as operating and heating costs, as well as the reminder of the outstanding debts,
- the preparation of the financial settlement of the ongoing efforts ( Betriebskostenabrechnung ), possibly creating the Heizkostenabrechnung (optionally after heating bills Act ) and the production of reserves accounting,
- the preparation of the forecast of the expected expenses,
- keeping track of all important for the building and the property files , such as energy performance certificates , Baubescheide and policy and
- the commissioning and monitoring of professional services and the commissioning and monitoring of possible employees .
In some cases, the administrator also takes on an advisory and mediating role vis-à-vis and between the owners.
The WEG 2002 also made it possible to appoint an owner representative who represents the community of owners vis-à-vis the manager (e.g. in the event of a dispute about the amount of the manager's fee). This must also be ordered with a proportional majority. The owner representative must be a co-owner of the respective property.
Both the appointment of a manager and the appointment of an owner representative can be entered in the land register upon request.
Decision-making and owners' meeting
The majority of the apartment owners, calculated on the basis of co-ownership shares, generally decides questions that build their will, unless otherwise legal regulation has been made in the WEG 2002. A decision can be made either in the owners' meeting or in the context of a written survey of all owners. Owners can lose their voting rights in the matter if there is a close economic or family relationship or if they have been excluded from the community according to § 36 WEG 2002. Votes that are not cast always count as votes against, so there are actually no abstentions. If there is an equal number of votes for and against a matter, the court resolves this stalemate. Once a decision has been made, it is referred to in the WEG 2002 as a resolution, the process of decision-making as a resolution. Resolutions can be appealed to the court in non-litigation proceedings one month after they have been announced by posting in the stairwell (or at a point in the house that is clearly visible to all apartment owners ) .
Basically, the WEG 2002 in § 25 provides for the formation of will in an owner meeting (often referred to as a house meeting ). This must be called by the administrator at the latest every two years or at the request of three owners who together hold a quarter of the co-ownership. In addition, every owner can call an owner meeting himself. The invitation to the owners' meeting and the questions to be resolved must be made known to the owners two weeks before the date. The administrator has to keep a record of the owners' meeting (attendees, requests to speak, etc.) and send this to the owners. In practice it is often the case that the manager also moderates the owners' meeting .
The WEG 2002 essentially describes the measures required to maintain the general parts of the property as proper administration . This concerns, for example, necessary repairs and renovations to general building parts such as the facade or the roof , the collection of the reserve according to § 31 WEG 2002, the taking out of a loan , the conclusion of insurance contracts, the issuing of house rules (at least to be distinguished from the community rules ) , the appointment and dismissal of the manager or owner representative, etc. The maintenance of the general parts of the property also includes ongoing care and maintenance , for example by a caretaker or a company commissioned to do so. In matters of proper administration, a proportional majority of the owners decides, so the manager has to follow their instructions, but is otherwise not obliged to obtain the consent of the owners by resolution for the implementation of measures.
In the context of proper administration, rental contracts for general parts of the property can be concluded with owners and third parties, and provisions on the termination of such rental contracts with regard to parking spaces are made in Section 28 WEG 2002.
Decisions that go beyond ordinary administration are made within the framework of extraordinary administration . This applies, for example, to the addition of a canopy at the house entrance or the installation of a new heating system . In this case, too, the proportional majority of the owners decides, in contrast to the WEG 1975, where the consent of all owners was necessary.
Within three months of the announcement of the decision, any owner can apply to the court to revoke the decision. The court must revoke the decision if the decision made would significantly affect the applicant, unless this interference can be financially compensated. Furthermore, the resolution is to be revoked if the costs incurred cannot be covered from the reserve. If those owners who have spoken out in favor of the implementation of the measure bear the costs themselves, the resolution must not be revoked, nor if the change offers all owners a clear advantage (e.g. installation of new, noise-reducing windows).
The community of owners is obliged to save a reserve (often referred to as a maintenance fund , maintenance reserve or repair reserve ) for the financing of future repair and renovation work in § 31 WEG 2002 . The administrator is responsible for collecting the contributions, withdrawing funds to finance expenses and accounting for the reserve. The community of owners is also obliged to pay back deficits if the reserve shows a negative balance.
Allocation and settlement of expenses and income
All expenses and also the contributions to the reserve are to be borne by all owners in proportion to their co-ownership shares in accordance with § 32 WEG 2002. There are exceptions for buildings in which properties were rented before the establishment of residential property. Income from general parts of the property (e.g. from the rental of parking spaces) are also distributed proportionally to all owners. All owners can jointly define different distribution ratios for expenses as well as income if it is appropriate (so that, for example, costs for maintaining an underground car park are only borne by the owners of parking spaces in this garage).
Furthermore, with the consent of the owners of two thirds of the co-ownership shares, a division of the expenses according to consumption values, which are determined, for example, by counting devices, can be established if the installation of counting devices is possible and economically sensible. In this case, all owners are obliged to participate in determining the consumption values, for example by reading the corresponding meter readings once a year. If consumption shares for more than 20 percent of the usable area cannot be determined, such billing is no longer permissible (a similar provision can be found in the Heating Costs Billing Act), including such consumption shares may be calculated or estimated.
If expenses can be directly allocated to the users of communal systems, a proportional majority of the owners can decide on direct billing (e.g. via coin-operated machines). Such income must also be settled as described above.
Together with the allocation deadlines, it is also possible for all owners to define voting units that differ from those of the entire property. The respective changed accounting and reconciliation units as well as other agreements regarding cost accounting can be entered in the land register upon request.
The administrator is obliged to bill the costs in accordance with the agreement within six months of the end of the billing period. The accounting period is usually a calendar year, but this can be changed by an agreement of all owners or the court. After the statement has been sent to the owner, the administrator must allow the owner to inspect the documents (e.g. incoming invoices) on which the statement is based. If the statement is not properly prepared, the court can impose fines of up to 6,000 euros.
When settling the accounts, the advance payments made by the owners are compared with the actual expenses and income. This results in either a shortfall (often referred to as additional demand ) or an excess amount (often referred to as credit ). These are then to be settled by the owners, either by paying in the shortfall or by reducing the advance payment to offset the credit. In the ÖNORM A 4000 guidelines for the preparation of the billing are specified, among other things, structuring into a long version, a short version and the collection of documents is recommended.
Exclusion of Owners
According to § 36 WEG 2002, apartment owners can be excluded from the community of owners if they fail to meet their obligations from the community (e.g. do not make payments), actively or passively damage the apartment property or general parts of the property, or if they behave improperly towards roommates Tag sets or commits criminal offenses against them. The provision with regard to behavior also applies to apartments that are not inhabited by the owner himself, provided that the owner fails to prevent this behavior (in the case of a tenancy, e.g. by giving notice of termination ).
An application for exclusion must be filed in court by a majority of the owners. Three months after the legal force of an appropriate judgment each joint owner, the foreclosure according Enforcement Code apply for the respective condominium object.
Furthermore, the WEG 2002 regulates provisions that enable individual overly impaired owners to pursue an exclusionary action.
Value added tax assessment
The sales of the community of owners are basically exempt from sales tax according to § 6 Abs. 1 Z 17 UStG 1994 . However, it is possible for the community of owners to opt for regular taxation. In this case, the community of owners is treated like a business from a VAT law perspective . The monthly advance payments as well as the actual costs of the owners determined in the statement are taxed for operating, administrative and hot water costs for living space at ten percent, all other sales at 20 percent sales tax. Payments into the reserve are generally not subject to sales tax; if financial resources are withdrawn from the reserve to finance work, the funds withdrawn are to be taxed proportionally with ten percent sales tax for living space and 20 percent sales tax for other property shares.
Relationship of co-owners
The relationship of the co-owners between each other goes beyond the joint formation of the community of owners and shaping within this framework. After all, you are jointly the owner of a property, which means that you have to obtain the consent of the remaining owners for many changes that can be easily carried out by yourself (especially renovation work).
Change and maintenance of the condominium
Every owner is entitled to change his condominium. In doing so, he must ensure that the house is not damaged (e.g. by removing a load-bearing wall), that the interests of other owners are not impaired and that no other people can be endangered. In addition, the external appearance of the building must not be changed. A change in the external appearance also includes, for example, the installation of sun protection devices such as awnings or sun sails. The written consent of the rest of the owners must be obtained for such an installation, as such a device is one of the general parts of the building after installation and therefore the other owners must also pay for the maintenance.
If regulatory approval is required for the change, the remaining owners must give their consent, provided the above points are met. It is also possible to change the designation with the consent of the remaining apartment owners (e.g. converting an apartment into a business premises).
Every owner is obliged to maintain and service their condominium and associated facilities such as water , electricity and gas lines . He is also obliged to tolerate work in his apartment property, provided that this serves the maintenance of the general building parts and thus the interests of all owners.
According to § 17 WEG 2002, all owners can make a written agreement on the use of the general parts of the property. For example, the owners can regulate who is allowed to use a lawn or a parking lot or allow the installation of office signs in the entrance area or an advertising poster on a fence for an owner. A usage regulation can also be regulated at the court upon application or changed by the court. During the negotiation of an application for a new usage regulation, the resolution of a provisional usage regulation by owners of two thirds of the co-ownership shares is possible.
A usage regulation can be entered in the land register upon request.
Every owner is granted comprehensive minority rights in § 30 WEG 2002. These supplement the rights to contest resolutions. The minority rights can be claimed by filing an application to the court. The most important minority rights are:
- The order that tasks of the orderly administration are carried out promptly ( within a reasonable period ),
- that an appropriate reserve is established or that the defined contribution to the reserve is increased or decreased,
- that adequate fire or liability insurance is taken out,
- the order to the administrator to fulfill his obligations or the dissolution of the management contract,
- the appointment of an administrator or a temporary administrator and
- the repeal of provisions in house or community rules.
Furthermore, an individual apartment owner can also defend himself against resolutions correctly adopted by a proportional majority if this majority has only come about through the shares of a single apartment owner (or several people who are in an economic or family relationship) and the measures adopted by him would bring a disproportionate disadvantage. An application for the annulment of such a decision or for the withdrawal of any measures taken must be submitted to the court within three months of becoming known.
According to § 26 WEG 2002, all owners can reach an agreement on the establishment of functions in the community of owners or on the formation of will. These can be, for example, so-called house speakers for individual parts of the building, who can then be elected and deselected according to the rules set out in the community regulations. In any case, the community order in the WEG 2002 is to be strictly distinguished from the community order in German condominium law , which corresponds more to the Austrian condominium contract.
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