LATEST NEWS ON CONSTRUCTION
LEGITIMATION OF A HOMEOWNER
02.11.2017
Common parts of a property are those that are for general use or whose intended purpose precludes exclusive use. These include, for example, stairwells or a communal garden. In this regard, the question arises as to whether the individual apartment owner (WE) or exclusively the apartment owners' association (WEG) has active legal standing to assert warranty claims.
According to the case law of the Supreme Court (OGH), each WE is entitled to assert a warranty claim regarding common parts without the consent of the other WE if the claim results from an individual contract between the WE and, for example, the property developer. If the actions of the individual WE could endanger the community's interests, a majority decision of the WEG or a decision of the non-contentious court substituting this consent is necessary. With regard to the assertion of warranty claims, a conflict of interest can lie, for example, in the choice between a request for improvement and a request for a price reduction. If, however, the WEG has concluded a contract itself, claims arising from it must be asserted by it and not by the WE.
In order to defuse this problem, it is possible to include a corresponding clause in the condominium contract. This allows the homeowner to assert warranty claims relating to common parts of the property without the consent of the condominium association. It is also permissible to rank the warranty remedies, e.g. that improvements are requested first and only then replacement. The Supreme Court has not yet commented on the question of what majority is required to deviate from such a contractual agreement. This is relevant because the wording of the condominium contract is often specified by the developer and the homeowner has no leeway in this regard. There is some evidence to suggest that a unanimous decision by the condominium association is necessary for the aforementioned deviation, which is usually difficult to achieve. However, due to a lack of relevant case law, this question cannot be answered with legal certainty.
In summary, in the case of an individual contract, the individual property owner has the right to assert warranty claims. To avoid a possible conflict of interest, the specific procedure can also be contractually agreed upon by means of a regulation in the condominium contract.