Resolutions of a community of owners are formed by the majority of the co-ownership shares. The Condominium Act stipulates that the owners’ meeting is primarily used to form a decision, but at the same time does not present any formal requirements for a valid resolution. The resolution can also be passed in other ways, such as – as mentioned in the law – in writing.
An application for a declaration of the legal invalidity of the resolution due to formal deficiencies, illegality or lack of the required majority may be applied for against a resolution of the owners’ association by posting or sending it within one month of the announcement. In the case of extraordinary measures, i.e. those that go beyond maintenance or useful improvement, a decision can also be challenged if the change would have an excessive impact on the owner of the dwelling or if the costs of the change could not be covered from the reserve, taking into account the maintenance work that will be required in the foreseeable future. In this case, the application period is three months.
If a single apartment owner has a majority of the votes or if several people who are connected to each other by a close family or economic relationship have the majority of the votes, this is referred to as a dominant majority owner. In such a case, the minority owner has extended rights.
If there is a dominant condominium owner, the decision-making process of the owners’ association may consist of an act of will. If this act of intent is duly announced and triggers the deadline, this “quasi” decision can be challenged as described above (see most recently OGH 18.04.2023, 5 Ob 12/23k), whereby the disproportionate disadvantage is added here as a further avoidance.
If there is no announcement, the provisions of § 30 para 2 WEG, according to which measures taken or omitted by the dominant majority owner can be challenged if they entail a disproportionate disadvantage for the other condominium owner, apply. In the case of measures already taken or ordered, the judicial challenge must take place within three months of their recognizability.
It is therefore important for the minority owner to react in a timely manner to acts of will by the dominant majority owner, at best the possibility of formally contesting the resolution is forfeited.
For further information, please contact:
Stephan Gappmaier, Lawyer
Zumtobel Kronberger Rechtsanwälte OG, Salzburg
e: ta.walue@reiamppag
t: +43 662 624500
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