The current government program provides for an amendment and modernization of the Residential Property Act of 2002 to facilitate the phase-out of fossil fuels and to reduce the property’s energy consumption. The review of the ministerial draft ended on August 13, 2021 and the amendment is about to come into force on January 1, 2022.
In essence, following changes to the Residential Property Act 2002 are planned:
- facilitating the execution of certain measures.
- simplifying the formation of the community of owner’s legal will.
- the administrator’s obligation to provide certain necessary information with regard thereto.
- a minimum allocation of the financial reserve.
Fiction of consent:
Facilitating certain changes pursuant to § 16 para 5
Currently, a residential property owner planning to modify his residential property object in a manner that interferes with other residential property owner’s interests, must obtain the prior consent of all residential property owners pursuant to § 16 para 2. Tacit consent is not sufficient. Rather, the explicit consent of all apartment owners must be obtained. In case of a big owner’s community, this is difficult to achieve.
Henceforth, this consent will be replaced by a fiction of consent (§ 16 para 5) for certain modifications, including implementing:
- handicapped accessibility measures of one residential property object or the general parts of the property;
- burglar-proof doors;
- solar systems;
- shading devices (e.g. blinds or shutters; Only if fit the appearance of the property)
- slow charging stations for electric cars.
- In the latter case, individual charging station may be prohibited in favor of a (future) community charging station pursuant to § 16 para 8. (Such limitation is subjected to certain strict conditions.)
According to the new consent fiction, it is sufficient if the other residential property owners they do not object within the period of 2 months being notified of the solicited change and the legal consequence of such refrain. However, an apartment owner does never have to tolerate a significant and permanent impairment, even if refraining from objecting.
If general parts of the property are used for modifying a residential property owner’s object, the respective owner must bear the costs of the modification and further maintenance of the modified general parts and required facilities (electricity, water, etc.) at his expense and in such a manner that other residential property owners do not suffer any disadvantage.
General facilitated formation of will of the community of owners according to § 24 Abs 4:
Currently, the required majority quorum for passing a resolution is calculated based on the total number of shares held, regardless of their presence in the meeting.
In addition to this existing quorum, an additional possibility for passing a resolution is added: Instead of the total of ownership shares, the new quorum is based on a qualified majority of the votes cast in the following manner:
- 2/3 the votes cast are in favor of a resolution,
- which in total represent at least 1/3 of all co-ownership shares.
The residential property owner proposing the resolution must inform the others that undercutting the majority of total shares does not prevent the vote’s effectivity and the adoption of the resolution.
The planned amendment enables the administrator to allow residential property owners to participate by way of electronic communication (e.g. video conferences).
Information obligations of the administrator according to § 20 para 8
In order to be able to convene a residential property owner’s meeting or pass a resolution by circulation, it is a necessary that the residential property owner proposing the resolution is aware of the identity and delivery address of the other residential property owners.
Currently, however, the administrator is prohibited from disclosing the address for service against the will of a residential property owner.
The planned amendment implements the (GDPR-compliant) administrator’s obligation to provide the delivery address of the other apartment owners.
Minimum financial reserve according to § 31 para 1:
The previous minimum monthly reserve is planned to be set to € 0.90/m2 effective space (value-secured). However, this value can be undercut, e.g. if the reserve has already reached a sufficient level or no (acute) reserve is required due to a recent refurbishment. The calculated total amount is divided according to the co-ownership shares.
