previous legal situation
Section 27 of the WEG currently stipulates what the administrator may do, in paragraph 2 regarding special owners and in paragraph 3 regarding the community. In practice, the occasional catalog of legal representation powers means that in a large number of cases, additional resolutions are required that empower the administrator to do something (for example, a lawsuit against a late co-owner). To simplify this, declarations of division often provide supplementary powers, as do manager contracts. This means that the rights of the administrator are different in every house and you have to check in each individual case whether he is allowed to do something or whether a meeting has yet to be called.
planned new legal situation
The new regulation provides that the position of the administrator will be significantly upgraded. In future, he can act externally as a GmbH managing director can:
§ 9b WEG-E. Stand-in.
(1) The community of apartment owners is represented by the administrator in and out of court. If the community of homeowners does not have an administrator, it is jointly represented by the homeowners. A limitation of the scope of the power of representation is not effective towards third parties.
(2) The apartment owners decide on the representation of the community of apartment owners vis-à-vis the administrator.
Judicial and extrajudicial representation, point. In the future, for example, there will no longer be a decision as to whether the administrator may sue residues of house charges against defaulting owners. Because this authorization already follows from the law.
Section 9b WEG-E only speaks of representation the community, A legal representation of the individual special owner is no longer provided in the future. But this is also significantly less necessary than before. In the future, actions for annulment against decisions will be directed against the community, not against the individual owners. Then they no longer have to be represented.
This new concept clearly approximates residential property law to company law: the individual special owner is more likely to have the position that a GmbH shareholder has, with the rights to inspect the company's documents, to participate in internal resolutions at meetings and to select and order of the managing director (administrator). Incidentally, the things of society (WEG) should only be regulated by the managing director, the shareholders (apartment owners) should be left out here.
It will be interesting to see how feasible this is in everyday legal practice. Because the special owners have a property law position that gives them their own rights, such as rights of defense against immissions from neighboring properties or claims for property damage to their property. Here there may be overlaps with community rights, which leads to delimitation and competence issues. This is nothing new in WEG law, only the specific question is then new.
Redesign of the internal authority to act
In addition to the external power of representation for the community, the duties of the administrator should be defined internally by decisions of the owners. The new § 27 WEG reads as follows:
Section 27 WEG-E. Duties and Powers of the Administrator.
(1) The administrator is entitled and obliged to the community of apartment owners to take all measures that
1. involves the ordinary management of common property, and
2. to meet a deadline or to avert a disadvantage.
(2) The apartment owners can exercise the rights and obligations under paragraph 1
limit or expand by decision.
For example, the owners could decide that the administrator should not bring any house-money lawsuits against defaulting co-owners, unless an individual decision allows him to do so. The consequence would be that the administrator could still effectively file such a lawsuit, because according to section 9b (1) sentence 3 WEG-E, restrictions on his power of representation vis-à-vis third parties are ineffective. The administrator would commit a breach of duty internally to the community.
This also resembles GmbH law: a transaction concluded by the GmbH managing director against the interests of the company is effective. The company is limited to claims for damages against the administrator (and can of course throw him out).
On pages 28 and 29 of the design justification, we find the following:
“Under current law, for most administrative measures, the manager needs a decision from the homeowner, regardless of how significant the measure is to the community. This legal concept may have been appropriate when the WEG was created, given the prevailing conditions in the building industry at the time. Since the 1950s, the average size of residential complexes has almost doubled ... Especially in large systems, the legal concept can hardly be implemented. Because the size of the plant also increases the number of measures to be taken, especially in the area of maintenance and repair of common property. Theoretically, according to the applicable law, owners' meetings often have to take place during the year to decide individual questions that are ultimately insignificant for the apartment owners. In practice the legal concept is therefore largely superseded by regulations in the administrator contracts, within the framework of which the administrator is given authority to act that goes beyond the law. This handling is not to be welcomed for reasons of transparency, because many apartment owners do not pay the necessary attention to the content of the management contract. In addition, concerns are also raised for dogmatic reasons ...
The draft therefore envisages adapting the WEG to contemporary needs. The administrator should be responsible for all normal measures that do not require a decision by the homeowner from an objective point of view; The same should apply to urgent measures (Section 27 (1) WEG-E). A serious change in the legal situation is not associated with the manager's existing competencies according to § 27 paragraph 1 and taking into account the often expanding regulations in the manager contracts. In addition, however, the apartment owners should have the opportunity to determine the responsibilities of the administrator by decision, by expanding or restricting his area of responsibility. This ensures that the apartment owners always remain the masters of the management of their common property. "
On pages 50 and 51, the design justification continues:
To § 9b in general
Section 9b regulates the representation of the community of apartment owners. This is basically the responsibility of the administrator (paragraph 1 sentence 1). If the community of homeowners has no administrator, it is the responsibility of the homeowners jointly (paragraph 1 Sentence 2). The apartment owners decide on representation vis-à-vis the administrator by resolution (paragraph 2).
The draft no longer provides for the individual apartment owners to be represented by the administrator (see Section 27 (2)). In legal transactions, it is usually not necessary because the legally competent community of apartment owners takes part in legal transactions and not the apartment owners as such. Due to the passive legitimacy of the legally competent community of homeowners in resolution actions provided for in § 44 paragraph 2 WEG-E, a representation of the individual homeowners is no longer necessary in terms of process. Insofar as the legally competent community of apartment owners in accordance with Section 9a (2) WEG-E exercises certain rights and obligations of the individual apartment owners, no representation of the individual apartment owners is required anyway. All other rights and obligations can and must be exercised and exercised by the apartment owners themselves.
Regarding § 9b paragraph 1
According to § 9b paragraph 1 sentence 1, the administrator represents the community of apartment owners in and out of court. Its power of representation is unlimited in accordance with Section 9b (1) sentence 3 and cannot be restricted by agreement or resolution. The apartment owners are only entitled to joint representation in accordance with Section 9b (1) sentence 2 if the community of apartment owners has no administrator. According to § 9b paragraph 1 sentence 3, this substitute authorization cannot be restricted by agreement or decision.
On the one hand, Section 9b (1) facilitates legal transactions with the community of apartment owners. Those who conclude a contract with an administrator no longer have to fear that their representative is not sufficient to conclude the contract. This also serves the interests of homeowners to be able to participate efficiently in legal transactions through the legally competent community of homeowners. In this respect, the draft corresponds to recommendations that were already made in the context of the WEG amendment in 2007 (compare, for example, Schmidt-Räntsch in the expert opinion on the occasion of the public hearing before the Legal Affairs Committee on September 18, 2006, page 13).
On the other hand, problems are eliminated that exist under applicable law for unilateral legal transactions. According to the prevailing opinion, a one-sided legal transaction undertaken by the administrator as a representative of the community of apartment owners can be rejected in accordance with section 174 sentence 1 of the German Civil Code (BGH, judgment of February 20, 2014 - III ZR 443/13). According to § 9b paragraph 1, this is no longer an option. Because in any case § 174 BGB does not apply to bodies authorized to represent without restriction. The case law of the Federal Court of Justice on the application of section 174 of the German Civil Code to the representation of companies under civil law is also not transferable to the community of apartment owners. Because this jurisprudence refers to the case that the representation of the company civil law deviates from the legal regulations of §§ 709, 714 BGB (compare BGH, judgment of November 9, 2001 - LwZR 4/01). This is not conceivable for the community of apartment owners, since it is not possible to deviate from the legally stipulated power of representation pursuant to Section 9b (1) sentence 3. The fact that the administrator's person is not visible from a register does not change this; Section 174 of the German Civil Code assumes the uncertainty associated with the use of legal representation regarding the effectiveness of the existence of the alleged power of representation - regardless of the existence of a register - of the recipient of the declaration (BGH, judgment of November 9, 2001 - LwZR 4/01).
Regarding § 9b paragraph 2
Section 9b (2), based on Section 46 (8) of the Law on Limited Liability Companies (GmbHG), provides for a decision-making authority to regulate the representation of the community of apartment owners vis-à-vis the administrator if the administrator is out of court in accordance with Section 181 of the German Civil Code or in court in accordance with general provisions procedural principles (see Ellenberger, in: Palandt, BGB, 78th edition 2019, § 181 margin number 5) is excluded from representing the community of apartment owners. In these cases, for example, an apartment owner can be authorized to represent them.
Incidentally, no decision-making powers of the homeowners are envisaged with regard to representing the community of homeowners. In particular, individual homeowners cannot be chosen to represent the community of homeowners in place of or alongside the administrator. This possibility is excluded to protect the minority, who cannot reasonably be expected to have a representative who does not have the duties resulting from the position of administrator. If the majority wishes to elect a representative by resolution, this is possible for them, but only by appointing an administrator. If all apartment owners are in agreement, they can of course also authorize one or more of them according to the general principles of the entire agency.
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