Shiver decision
In German residential property law, a decision by the owners is called a tremor decision , which they take in the knowledge that the decision is unlawful and in the hope that it will not be challenged in court.
According to German law, a decision can only be challenged in court within one month ( Section 23 Paragraph 4 and Section 46 Paragraph 1 Apartment Ownership Act ). If the decision is not contested within this period due to lack of interest or for reasons of cost , it is effective, even if it is unlawful. That is how long the owners (at least their decision-making majority ) and the property manager have to "tremble". You can then implement the resolution without hesitation.
In the past there were often trembling decisions because the case law of the Federal Court of Justice (BGH) also accepted decisions that changed the regulation of the law , the declaration of division or another agreement (in the sense of a contract ) that all owners had made jointly. The need for such a change was often great because the declarations of division drawn up by notaries or lawyers were not adapted to the specific circumstances of the community . In particular, the rules on the allocation of costs ( operating costs , maintenance costs , etc.) were often changed because the majority did not think they were sensible.
However, with a decision of September 20, 2000, the BGH changed its case law and thus prevented the practice of unlawful trembling decisions in most cases. The BGH now takes the view that resolutions that want to change the law, the declaration of division or any other agreement are null and void. Because an agreement can only be changed by an agreement. For an agreement, however, no majority resolution and also no unanimous resolution are sufficient if not all owners are present. Rather would have all the owners agree ( Allstimmigkeit ). The assembly of owners therefore has no competence to change the “Basic Law” of the community of owners by resolution. The practical consequence is that owners who do not agree with the decision can still have its nullity established after one month. Apartment owners are advised to examine all past resolutions to see whether the law, the declaration of division or any other agreement should be changed. In these cases, a new regulation by agreement should be considered.
Not all trembling resolutions are affected by this judgment. If a resolution violates a law or an agreement, but is not intended to change it for the future, it can be challenged within one month but is not automatically null and void. Above all, annual statements that are based on an incorrectly changed cost allocation key remain valid despite their illegality. Although these accounts violate the law or an agreement, they are not intended to change these standards in the future.
Web links
- BGH decision of the 5th civil senate of September 20, 2000 , Az. V ZB 58/99, full text - judgment on the partial inadmissibility of shaking decisions, also BGHZ 145, 158; NJW 2000, 3500.
Individual evidence
- ^ BGH decision of September 20, 2000, see web links
