In 2010, the members of a condominium owners' association passed a resolution by majority vote to allow a company to install and operate a mobile phone system on the roof of the condominium's lift. The plaintiff - also a member of the condominium owners' association - does not agree with this. The action for annulment brought by the plaintiff against the resolution was upheld by both lower courts on the grounds that the installation of the mobile telephone system was a structural change which would have required the consent of all condominium owners pursuant to § 22.1 in conjunction with § 14 no. 1 WEG. In their appeal, the defendants sought to have the action dismissed.
The V. Civil Senate of the Federal Court of Justice, which is responsible inter alia for condominium matters, dismissed the appeal and confirmed the legal opinion of the lower instances with the consideration that on the basis of the generally known scientific dispute about the dangers emanating from mobile phone transmitters and the resulting fears, there is at least the serious possibility of a reduction of the rental or sales value of condominiums. This constitutes an impairment that a reasonable condominium owner does not have to accept without consent (section 22 (1) in conjunction with section 14 no. 1 WEG).
Contrary to the opinion of the revision, a different assessment is also not required with regard to the provision of § 906 para. 1 sentence 2 BGB. According to this provision, there is indeed a presumption in the relationship between neighbouring property owners that certain impacts, which also include radiation immissions, are insignificant and therefore acceptable if the relevant limit and guideline values are complied with. However, the standard does not regulate the conflict between condominium owners on how to deal with the common property and whether structural changes with all their advantages and disadvantages should be made for this purpose. The recourse of § 22 (1) WEG to the standard of § 14 No. 1 WEG is intended to ensure that the right of each condominium owner to exert a decisive influence on decisions on structural alterations through the requirement of consent (§ 903 BGB) is in principle preserved. This right may only be interfered with insofar as condominium owners are not affected by the measure at all or only to a very minor extent. The immission limits and guideline values specified in § 906 (1) sentence 2 BGB do not provide a useful standard for the concretisation of this specific insignificance under condominium law. This is all the more true since living together in a condominium complex requires a greater degree of consideration - also in decisions on structural changes.
Ruling of the Federal Supreme Court of 24 January 2014, file number V ZR 48/13
Lower courts:
AG Aschaffenburg - Judgment of 22 December 2011 - 115 C 2751/10
Bamberg Regional Court - Judgment of 25 January 2013 - 2 S 5/12
Source: Press release of the BGH
Goldberg Attorneys at Law 2014
Lawyer Michael Ullrich, LL.M. (information law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
