Condominium law: Windows are common property

The Federal Court of Justice (BGH) ruled in a recent judgment that there is no reimbursement of costs for common property that has been repaired by individual apartment owners in error.

Who bears the costs for replacing windows in an apartment complex? This question often leads to disputes among apartment owners, especially when the declaration of division does not clearly define what constitutes individual or common property, as in the present case.

In 2005, a condominium owner in Hamburg replaced his old, single-glazed wooden windows with double-glazed PVC windows. He bore the €5,500 cost himself, as he, like his fellow co-owners, assumed, based on the wording in the declaration of division, that the windows were individual property. It was only a 2012 ruling by the Federal Court of Justice (BGH) that made the owner realize that replacing the windows was a shared responsibility. However, the owners' association refused to reimburse him for the costs.

Is a condominium owner entitled to claim reimbursement if they acted in good faith and mistakenly based their actions on the provisions of the declaration of division? "No," ruled the Federal Court of Justice (BGH, June 14, 2019, V ZR 254/17). The owner has no claim to payment even if the work they carried out was a shared responsibility. As early as 2015, the Federal Court of Justice had ruled that unauthorized repairs and maintenance work on common property cannot, in principle, be subsequently billed to the community, as this would conflict with the legitimate interests of the other condominium owners.

Note: Anyone who repairs common property, mistakenly believing it to be private property, will be stuck with the costs. This is because, according to Section 5 Paragraph 2 of the German Condominium Act (WEG), windows are the property of the owners' association (WEG), even if the declaration of division states otherwise.

Sources: juris.bundesgerichtshof.de, iww.de, haufe.de, vermieter1x1.de, ratgeber.immowelt.de