In 2010, the members of a condominium owners' association passed a majority resolution to permit a company to install and operate a mobile communications system on the elevator roof of the condominium complex. The plaintiff, also a member of the association, disagreed with this. Both lower courts upheld her action for annulment against the resolution, reasoning that the installation of the mobile communications system constituted a structural alteration, which, according to § 22 para. 1 in conjunction with § 14 no. 1 of the German Condominium Act (WEG), would have required the consent of all condominium owners. With their appeal, the defendants seek to have the action dismissed.
The V Civil Senate of the Federal Court of Justice, responsible inter alia for condominium property matters, rejected the appeal and affirmed the legal opinion of the lower courts. It reasoned that, based on the generally known scientific debate surrounding the dangers emanating from mobile communication transmitting systems and the resulting concerns, there is at least a serious possibility of a reduction in the rental or sales value of condominiums. This constitutes an impairment that a reasonable condominium owner is not obliged to accept without consent (§ 22 para. 1 in conjunction with § 14 no. 1 WEG).
Contrary to the opinion of the appeal, a different assessment is not warranted with regard to the provision of § 906 para. 1 sentence 2 of the German Civil Code (BGB). While this provision establishes a presumption between neighboring property owners that certain impacts, including radiation emissions, are insignificant and therefore must be tolerated if the relevant limit and guideline values are observed, it does not regulate conflicts among condominium owners regarding the management of common property or whether structural alterations, with all their advantages and disadvantages, should be undertaken. The recourse of § 22 para. 1 WEG to the standard of § 14 no. 1 WEG is intended to ensure that the right of every condominium owner to significantly influence decisions on structural alterations through the requirement of consent (§ 903 BGB) is fundamentally preserved. This authority may only be interfered with if condominium owners are not affected by the measure at all or only to a very minor extent. The emission-related limit and guideline values mentioned in § 906 para. 1 sentence 2 BGB do not provide a useful standard for concretizing this specifically condominium-law-related insignificance. This applies all the more as cohabitation in a condominium complex – even when making decisions about structural alterations – demands a higher degree of consideration.
Judgment of the Federal Court of Justice (BGH) of January 24, 2014, file reference V ZR 48/13
Lower Courts:
Aschaffenburg Local Court (AG) – Judgment of December 22, 2011 – 115 C 2751/10
Bamberg Regional Court (LG) – Judgment of January 25, 2013 – 2 S 5/12
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
