WEG law: BGH on the content of a yearly statement

The administrator of a route has according to § 28 para. 3 WAY to draw up a statement of income and expenditure after the end of the calendar year. For this purpose, he must submit an orderly and clear statement of income and expenditure, which also contains information on the amount of the reserves formed. This must be understandable for a homeowner even without consulting technical assistance. Billing is only enough to meet the requirements if, unlike the business plan, it does not show the payments due and the expenditure foreseen, but the actual revenues and costs. The presentation of the annual statement must enable the homeowners to record the financial situation of the condominium community and to check their plausibility. They must be able to understand what has happened to the funds paid in, especially if they have been used in accordance with the requirements of the business plan. The annual statement is not least the basis for the determination of the final amount of the contributions.

Discussion of BGH V ZR 147 / 11

Already in March 2012 decided the BGH (V ZR 147/11) that arrears are not a necessary part of an annual statement. This is on the Billing of the costs of the previous financial year taking into account the advances paid by the owners limited. It is true that both the individual and the total billing can informally show the accounting status of the household allowance account including the arrears from previous years. However, such proof of accounting accounts is neither part of the annual statement nor of the approval decision; the information available from it can only provide evidence against the conclusiveness of the billing. The purpose of the annual statement is also not to show whether the costs incurred in the accounting year costs are covered by the current payments of house payments; an asset status is neither subject to the annual statement nor to the approval decision. The economic plan primarily ensures ongoing cost recovery. It must set out in-house payments that allow the administration to settle the costs likely to be incurred.

Although the BGH also decided that the development of the maintenance reserve should be presented in the annual statement in order to allow the apartment owners to examine the settlement (V ZR 44/09). However, this principle is not to be transferred to the household debt. Because the annual statement is to be kept as a pure income and expenditure account, it is easy for the homeowner to see whether the house payments cover the incurred costs and burdens of the common property. If a difference has arisen, he may ask the Administrator if it is based on the fact that the other homeowners did not pay their contributions in accordance with the approved business plan in the accounting year.

Also, an overview of the billing results of all apartments is not necessary part of the annual statement according to the decision now taken. The information value of such an overview, which shows the credits or additional payments for all apartments, is low in the view of the BGH. A homeowner can already see from the individual bill pertaining to him, according to which distribution key the administrator has distributed the total cost. He can assume that the distribution key was used consistently in the other individual bills. The fact that the votes of each individual owner when deciding on the annual statement also extends to the approvals of the foreign individual statements, does not make it necessary to show the respective settlement results of all apartments in the individual bill. The resulting interest in information is adequately protected by the right to access the individual statements. Such an overview does not become a necessary part of an annual statement even if the administrator voluntarily offered it or otherwise created it.

Evaluation

This decision makes it easier for WEG administrators again, which is good. The uncertainties about the necessary content of a yearly statement as well as the way of presentation are great in practice. No steward would like to risk a judicial annulment of settlement decisions because of a flawed form or insufficiently detailed content, because on the one hand it looks like lacking expertise and on the other causes internal disputes over the litigation costs, plus work required to correct the offending bill. The safest way is then sometimes felt to write everything into the bill, which is possible, just to leave nothing out. The owners get used to it and ultimately demand it. In the present case, too, the challenge at the end was based on the fact that the steward had without a doubt promised a balance list for settlement, which he did not deliver. Of course, the more material and information written into the billing format, the larger the attack surface will naturally be.

The opposite would perhaps be better: restriction to the essential, namely the pure revenue-surplus billing. Everything else is, according to the BGH, only informative.

book Note

Haufe-Verlag publishes a practitioner's manual titled Annual and housing allowance in the WEG - including work aids online.

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