Residential property law
Residential property law
Claudia Ehlers
SPECIALIST LAWYER FOR TENANCY AND RESIDENTIAL PROPERTY LAW
Lawyer Claudia Ehlers is a specialist lawyer in the field of residential property law. She advises and represents homeowners' associations, property management companies and individual home owners in this complex area and supports her clients with outstanding excellence.
Residential property law is a highly complex area of law that requires specialized expertise. We support you with our expertise and experience in this area and provide you with comprehensive advice.
Homeowners' association
RIGHTS & DUTIES IN THE COMMUNITY
The community of owners is obliged to maintain and upkeep the common property (façade, windows, roof, etc.). This requires maintenance provisions that are paid in by the members. Externally, the WEG is liable to creditors; internally, each owner is liable according to and with their co-ownership share.
OWNERS' MEETING
Formal pitfalls for the owners' meeting can be the proper summons, adherence to deadlines and other points that we examine your concerns for. Errors can lead to resolutions being challenged, so caution is advised. The meeting is held once a year.
PROPERTY MANAGEMENT
The change of property management in particular leads to problems, as several resolutions are required. A reason for dismissal is no longer required, but notice periods must generally be observed. In the case of a new election, the options must be examined before the new management is elected by resolution.
How can I defend myself against resolutions of the homeowners' association meeting?
A resolution of the homeowners' association meeting can be challenged by means of an action to contest the resolution or an action for annulment.
Action for annulment
Whom to sue?
Since the WEG reform, an action to contest a resolution must be brought exclusively against the homeowners' association.
Time limit for action
The action to contest the resolution must be brought within one month of the resolution being passed.
The resolution is passed on the day of the owners' meeting.
In principle, it is irrelevant whether and when you received the resolution minutes. Only in exceptional cases can a reinstatement to the previous status be granted.
If the deadline is missed, this will result in the loss of the right to challenge the resolution.
The action to contest the resolution must be substantiated within two months of the resolution being passed.
Has the deadline been missed and are there no grounds for rescission?
We will check for you whether the resolution is null and void. An action for annulment is not subject to a time limit and can be asserted for an unlimited period of time.
Grounds for contestation
The resolutions can be contested on the grounds of formal and/or substantive defects.
But be careful! Not every error leads to the invalidity of the resolutions. It is necessary that the defects also affect the result of the resolution.
- Formal defects in resolutions are present, for example, in the case of errors in the invitation to the owners' meeting. These may include failure to invite individual condominium owners or failure to comply with statutory or contractually agreed deadlines.
- There may be deficiencies in the content of the resolution if the resolution violates the principles of proper management or if the wording is too vague.
Legal consequence
If the court upholds the action to contest the resolution, it is declared invalid by the court. As a result, the resolution is retroactively annulled.
What if the resolution has already been partially or fully implemented?
In this case, each individual home owner has a so-called claim for the removal of consequences. The implementation must be reversed.
Who bears the costs of the proceedings?
Before bringing an action against the homeowners' association, you should also seek good advice regarding the costs of the proceedings.
If you win the action for annulment outright, the homeowners' association will have to bear the costs of the proceedings.
As the plaintiff, you are still part of the homeowners' association. If you win the action in full, you will still share the costs of the proceedings as a member of the homeowners' association in accordance with the applicable cost allocation formula.
Legal expenses insurance does not usually cover these costs, which you have to bear as a member of the defendant homeowners' association.
Is there any way around this cost sharing?
The cost sharing can only be circumvented by a resolution to exempt the successful plaintiff from costs. Such a resolution must always be passed in advance.
Action for invalidity
Richtige Beklagte
Here, too, the action is directed against the homeowners' association.
Time limit for action
An action for annulment can be brought for an unlimited period of time and - in contrast to an action to contest a resolution - is not bound by a time limit.
When is a resolution null and void?
A resolution is null and void in particular
- if it violates a legal provision, compliance with which cannot be legally waived (violations of common decency or legal prohibitions)
- if it is not sufficiently specific or is contradictory in itself
- if the homeowners' association lacks the authority to pass a resolution.
Wie kann ich meine Ansprüche in der WEG durchsetzen?
Any homeowner can enforce a resolution by bringing an action to replace a resolution. There is no time limit for bringing an action. However, a prerequisite for the admissibility of such an action is that the owners' meeting has been consulted in advance.
The owners' meeting has also been referred to the matter in advance if no decision has been made on the matter despite a proposed resolution, for example because the matter has been removed from the agenda or postponed.
If the homeowner is entitled to a specific resolution, the court can replace precisely this resolution.
A distinction must be made between resolutions with and without discretionary powers.
An action to challenge a resolution can also be brought in combination with an action to rescind and is useful if the plaintiff is of the opinion that a different resolution should have been announced at the owners' meeting.
Attention! In such a case, the time limit of one month for the action for rescission must be observed
.Relevant topics
- Declaration of division/ community rules
- Legal relationships of the homeowners' association
- Establishment of the homeowners' association
- Proper administration of the homeowners' association
- Withdrawal of ownership
- Delimitation of special and common property and special rights of use
- Structural changes and modernization
- Holding an ordinary and extraordinary homeowners' association meeting
- Management contract
- Resolutions and agreements of the homeowners
- Action to contest resolutions/action for annulment/action to replace resolutions
- Formulation of resolutions and implementation of the circulation procedure
- Collection of house funds
- Annual accounts and economic plan
- Claims for correction of minutes/appeal against minutes
- Sale of residential property