appointment of the Advisory Board - Who determines the number of members?
The Federal Court by order dated 05.02.2010 - decided on the required number of members of the Advisory Board of a community of owners - V 126/09. The ruling is available at: http://www.bundesgerichtshof.de
The decision of the Fifth Civil Senate was the election of a previously based three-member Management Committee. The owner community through Assembly chose only two property owners to administrative boards, because no other "candidate" was held. The Decision was appealed.
Rightly so, the judges were. Contrary to the courts at first instance and on appeal the revision of the legal challenge helped to success.
Choosing a current of only two members of the Advisory Board is contrary to the proper management and is therefore wrong in law when it violates the statutory requirement of § 29 paragraph 1 sentence 2 Condominium Act, without the owners for this purpose "the course" - as the Federal Court - have made (BGH, supra, para. 5 notes).
§ 29 paragraph 1 Condominium Act reads as follows:
"The apartment owners can decide by majority vote the appointment of a management advisory board. The Management Board consists of a flat owners as chairman and two other apartment owners as assessors. "
foregoing, there is the management consultant of the rule of three members. In the most of the Federal Court case decided 05/02/2010, however, was - as already mentioned - no third party willing to stand for election to the Management Board to "stand". Consequently, the owners chose only two people in the advisory board include, however, the interpretation of the decision still goes ahead with his work and should be constituted, not only in the case - this is probably also unlikely - subsequent election of a third member.
is true of the apartment owners on the one hand assigned the authority to appoint the management committee through a majority decision, and the decision on the other hand should not be construed as a scheme, with the legal requirements about the number of management committee members pursuant to § 29 paragraph 1 sentence 2 WAY general will change for the future, so that the decision should not be regarded as null and void (BGH, supra, para. 5). However, it must be declared invalid because it due to the deviation of the number of board members of the proviso to § 29 Paragraph 1, sentence 2 Condominium Act is illegal. A derogation is only permissible if the community of owners, this has in turn allowed, either by the Community legal order itself or through an agreement within the meaning of § 10 paragraph 2, Condominium Act, who has already different from the statutory requirements the number of members providing the Advisory Board or of the owner community to determine the specific number of board members for a decision assigning the decision paths. Because these "soft" in front of the underlying decision of the Board election were not made, was of the order can be undermined as a result (BGH, supra, para. 5).
The Federal Court in its decision pointed out again that the management committee not a mandatory body, but rather a voluntary assistance and is controlling. If not enough "candidates" are present, like the home owners "persuasion" afford a sufficient number of members to the Advisory Board may order. A cast of the Advisory Board is in the way of a judicial decision, however, only in exceptional cases considered (BGH, supra, para. 8).
to distinguish the facts of the situation shown that excrete management committee members. In this case, the Board remains in its survival as long as intact as long as he is still at least one member. This "shrink Advisory Board, however, is now incorrect, because he is busy incomplete. Back no earlier order for replacement members, the appointment of new members is necessary until the required number (see Baert / Merle, Condominium Act, 11th edition (2010), § 29 para. 17 references).
As a result, it should be noted that
first A decision on the appointment of a management advisory board errors and thus voidable, if the number of members of the legal requirement according to § 29 paragraph 1 sentence 2 Condominium Act is different, without this the community order or agreement of the owners in accordance with § 10 paragraph 2 Condominium Act is approved;
second type of decision can only be contested and became final, when he will not be challenged under § 46 paragraph 1 Condominium Act in the prescribed period;
third one of the legally required number of three council members differ and to the extent possible depending on the size and needs of the community of owners intended appointment of the Advisory Board is if this before, the way in a framework of an agreement referred to in § 10 paragraph 2 Condominium Act paved;
4th an order of Alternate members, move up in the event of the resignation of council members, is admissible and may be useful.
Sebastian Kroll
lawyer
DR Nieto & KROLL LAWYERS
HAMBURG
http://www.nkr-muenchen.de
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