Condominium management

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The condominium administration (also: WEG administration ) is the function of the administration of the common property in German condominium law .

General

The German Condominium Act (WEG), case law and specialist literature speak of the administrator when the function is meant and of the administration when it comes to the task or activity of the administrator. Administration in the broadest sense is the organized, systematic action that runs according to certain norms , which, taking economic rules into account, ensures the implementation of the will of the apartment owners.

Legal bases

In addition to the apartment owners' meeting, the condominium management is the second body for condominium ownership ( Section 26 WEG), which is appointed and dismissed by the apartment owners with a majority of votes . It is a single body that only consists of an administrator ( natural person or legal person ). A stock corporation or GmbH and their variants are possible, but not a community of persons such as married couples or a GbR . According to the WEG, the appointment of an administrator cannot be ruled out, i. H. an administrator must be appointed, even if only one owner requests it. If no administrator has been appointed, the apartment owners are “jointly entitled to manage the common property” ( Section 21 (1) WEG), as well as representing the community ( Section 27 (3) sentence 2 WEG).

In Section 21 (1) WEG it is initially provided that the apartment owners are jointly entitled to manage the common property. To this end, Section 21, Paragraph 5 of the WEG introduces the legal term “proper administration”, which must correspond to the interests of all apartment owners. This includes in particular the establishment of house rules , the proper maintenance and repair of the communal property , the fire insurance of the communal property at replacement value as well as the adequate insurance of the apartment owners against house and landowner's liability , the accumulation of an adequate maintenance provision , the preparation of a business plan and the tolerance of all measures that are required for the production of a telephone subscriber device, a radio reception system or a power supply connection for the benefit of an apartment owner. The taking out of a long-term, high loan by the homeowners association can also correspond to "proper administration".

If the apartment owners do not take care of the management themselves, they can appoint an external administrator with whom they conclude a management contract in which the legal relationship between the two contracting parties is regulated. The individual homeowner is not a party to the contract.

tasks

The tasks of the condominium administration result mainly from § § 27 WEG and § 28 WEG. These cannot be restricted by agreement or resolution ( Section 27 (4) WEG).

First of all, the administrator must adhere to the principles of “proper administration” in accordance with Section 21 (3) WEG. He is entitled and obliged towards individual apartment owners and towards the community of apartment owners according to Section 27 Paragraph 1 WEG,

  • Carry out the resolutions of the apartment owners and ensure that the house rules are implemented;
  • to take the measures necessary for the proper maintenance and repair of the common property;
  • in urgent cases to take other measures necessary to preserve the common property;
  • To request, receive and pay charges and costs, repayments and mortgage interest, insofar as these are joint affairs of the apartment owners;
  • to effect and receive all payments and services related to the day-to-day management of the common property;
  • manage funds received;
  • to inform the apartment owners immediately that a legal dispute according to § 43 WEG is pending;
  • to submit the declarations that are necessary to carry out the measures specified in Section 21 (5) No. 6.

The administrator is entitled to do this in accordance with Section 27 (2) WEG, on behalf of all apartment owners and with effect for and against them

  • To accept declarations of intent and deliveries , insofar as they are addressed to all apartment owners in this capacity;
  • To take measures that are necessary to meet a deadline or to avert any other legal disadvantage, in particular to conduct a legal dispute against the apartment owners in accordance with Section 43 No. 1, No. 4 or No. 5 WEG in the decision-making and enforcement proceedings ;
  • To assert claims in and out of court, provided that he is authorized to do so by agreement or resolution with a majority of votes of the apartment owners;
  • to agree with a lawyer because of a legal dispute according to § 43 No. 1, No. 4 or No. 5 WEG that the fees are higher than the legal value in dispute , at most according to a value in dispute determined in accordance with § 49a Paragraph 1 Clause 1 GKG measured.

According to § 28 WEG, the manager has to draw up the business plan, which obliges the apartment owners to make appropriate advance payments after being called by the administrator ( house money ; § 28 para. 2 WEG). At the end of the calendar year, the administrator has to prepare a statement (Section 28 (3) WEG). According to Section 24 (7) of the WEG, the administrator must collect resolutions.

According to Section 27 (5) of the WEG, the manager is obliged to keep joint funds such as the maintenance reserve separate from his own assets. This prevents joint assets from flowing into the bankruptcy estate or the estate in the event of bankruptcy or death of the administrator . Therefore, the administrator has to keep the bank accounts as open foreign money accounts in the name of the homeowners association, even if in practice trust accounts were still common up to the WEG amendment on July 1, 2007. In addition, it is possible for the community of owners to request proof of sufficient financial loss liability insurance from the appointed WEG administrator .

The manager is accountable to the community of owners . To this end, he prepares an annual statement (as well as a new business plan ) and convenes (at least) an owners' meeting to determine it. He can be relieved of this. However , the WEG administrator may not use powers of attorney granted to him by individual owners for the assembly to vote for his own discharge, nor his own vote if he is also the apartment owner.

Other areas of law must also be observed by the property management company, such as building law , commercial law , land register law or environmental law . The most important individual basis is the management contract between the manager and the homeowners association.

Administrative Advisory Board

The administrative advisory board is recruited from homeowners, has an advisory role to the administration and supports the manager in carrying out his duties ( Section 29 WEG).

It is advisable to elect an administrative advisory board according to § 29 WEG. However, the establishment of an administrative advisory board is not mandatory. The homeowners association can make provisions in the community regulations for the election and composition of the administrative advisory board, which deviate from the legal regulation, for example to create the possibility of filling the advisory board with more or less than 3 homeowners or to appoint people who are not homeowners. But even if the community regulations do not contain a corresponding passage, the majority of the owners' meeting can decide to elect an advisory board. This advisory board consists of a chairman and two other members. All three people must own apartments in the WEG.

qualification

The WEG administration is not legally bound to a professional qualification , which is heavily criticized by administrators' associations as well as by consumer advocates because it is a highly complex and responsible activity. A limitation of the administrator to certain professional groups or qualifications is ineffective (violation of § 26 WEG).

Completed vocational training in the real estate industry , such as “ real estate agent ”, “ real estate agent ” or “real estate assistant”, or other equivalent training is desirable. A university or technical college degree can also be the basis for professional practice. A degree with business and / or legal content would make sense here. Technical knowledge and regular training on current case law are also advisable .

In general, it does not necessarily make sense for smaller community of owners to hire professional management if someone within the community of homeowners with the necessary specialist knowledge and protection in the event of financial loss agrees to manage it. A larger administration company can possibly offer better availability to individuals, and also offer employees specializing in sub-aspects such as commercial, legal or technical issues, but this is often not to be found in the immediate vicinity of the property.

However, with the entry into force of the law introducing a professional licensing regulation for commercial real estate agents and residential property managers, further requirements have been created for the administrators of WEGs. In particular, in addition to the admission according to § 34c GewO, they must also provide evidence of regular further training to the extent of 20 hours over a period of three years. In addition, a financial loss liability insurance must be used for the entire period of the activity to be registered as a business.

In the case of small condominium complexes - especially if these are exclusively inhabited by the owners themselves - it can also make sense to appoint the WEG administrator from among the owners. As a result, both savings in the management fee and more (time) intensive care can be achieved due to the proximity to the property.

Responsible and authorized for the entire duration of his appointment is always the administrator - i.e. the administrator (as a natural person ) or the management company ( trading company as a legal person ).

If the administrator dies (analogously: if the management company goes bankrupt), the owners' meeting must appoint a new administrator. If an appointed management company is sold (e.g. change of shareholder in a GmbH ) or the management is replaced, this does not affect the management position. However, especially in the case of significant changes in the ownership structure in the management company (e.g. sale of a company, entry or exit of a partner in the GmbH), the appointment of the manager may have to be confirmed by the community of owners.

If the management company goes bankrupt, the maintenance reserves of the individual residential property systems are unfortunately often included in the bankruptcy estate if the account is incorrectly kept (trust account) . A right to segregation cannot always be enforced, and thus this often represents a total loss of reserves for the individual residential property investments. Apartment owners should ensure that the account holder is the partially legal association of apartment owners.

Situation in Austria

The duties of the property manager as condominium manager are regulated in Section 20 of the Condominium Act (WEG 2002). However, the administrator is also subject to the General Civil Code (ABGB), the Tenancy Law (MRG), the Heating Costs Act (HeizKG) and the Non-Profit Housing Act (WGG).

Contrary to the legal situation in Germany, the industrial code (GewO 1994) imposes strict templates. A registration of the trade is only possible under strict conditions. In addition to the compulsory conclusion of a property damage liability insurance , property managers have to prove a sound training in the form of a state examination. Although the legislature attaches importance to an academic career, it also allows access to the trade for people who have a lower level of training, but subject to stricter requirements with regard to professional experience. The state qualification test is taken after several months of training under strict conditions, in writing and orally before a committee.

Demarcation

The care of the tenants of rented condominiums and the rent collection is not the responsibility of the WEG administrator. This "rental management" is described in the property management article. It can also be adopted ("mixed management"), e.g. B. to achieve synergy effects . However, the WEG management must be strictly separated from the rental management both legally (different contractual basis) and monetarily (separate accounts) and organizationally.

All measures to manage the private property of the individual owners are not among the tasks of the WEG management, nor the housing agency .

See also

Web links

Individual evidence

  1. ↑ Michael von Hauff, Das große Verwalter Handbuch , 2007, p. 32
  2. ↑ BGH, judgment of September 25, 2015, Az .: V ZR 244/14 = BGHZ 207, 99
  3. ↑ OLG Cologne, ZMR 2007, 716 f.
  4. ↑ BayObLG NJW-RR 1987, 595 , 596
  5. ↑ Law on the introduction of a professional licensing regulation for commercial real estate agents and residential property managers. In: Federal Law Gazette. Bundesanzeiger Verlag, October 11, 2017, accessed on September 11, 2018 .
  6. ↑ qualification of property managers - EuWo GmbH . In: EuWo GmbH . September 5, 2018 ( euwo.eu [accessed September 11, 2018]).
  7. ↑ Legal background to property management - Daum Immobilien GmbH. In: Daum Immobilien GmbH. Retrieved May 12, 2016 .