Damage to the condominium

Damage to the condominium / Schäden am Sondereigentum

November 09, 2022

Cause of damage in the common property

Many owners erroneously assume that in the case of damage to the condominium, of which the cause lies in the area of common property, the community of owners is responsible for compensating the damage. This is because the damage comes "from outside", i.e. from the common property.

However, the Act of the Ownership of Apartment and the Permanent Residential Rights (WEG) does not provide for a claim for damages regardless of fault. According to the case law of the Federal Court of Justice (BGH judgement of 21.05.2010, ref.: VR 10/10), there is also no claim for compensation under neighbouring law, so that the condominium owner usually goes away "empty-handed" if the cause of the damage is in the common property.

Only if the WEG can be accused of fault, the condominium owner can invoke a general claim for damages according to sections 280 cont. of the German Civil Code (BGB).

The condominium community is at fault in cases of neglect of its duties. In general, the condominium owners are obliged to make every effort to repair the damage or to maintain and repair the common property. To this end, they must insist on the prompt convening of an owners' meeting and/or the awarding of a contract to repair the damage (OLG Frankfurt, decision of 6 January 1984, ref.: 20 W 309/83). A culpable breach of duty will be given if the condominium community does not fulfil its maintenance obligation with regard to the common property or does not do so in time.

In the absence of fault on the part of the condominium community , the maximum settlement of damages is possible through the building insurance. However, this is only the case if the damage is insured, i.e. usually fire damage and storm damage.

In this respect, the condominium owner will (unfortunately) have to realise that if the damage is caused to the common property, the condominium owner must either hope that the other owners will be accommodating and take over the damage, or that the insurance will cover the damage.

Cause of damage in the condominium

Even if the cause of the damage is not in the common property, but in the separate property, the question arises as to whether the owner is entitled to compensation. Such a constellation exists, for example, if the parquet flooring in the flat below is damaged due to water damage in the condominium.

In these cases, the Federal Court of Justice allows a claim for compensation without fault as a claim for compensation under neighbour law pursuant to section 906 (2)sentence 2 BGB by analogy (Federal Court of Justice, judgement of 25 October 2013 - V ZR 230/12). The Federal Supreme Court justified this by stating that a certain relationship similar to that of a neighbour existed between the individual owners - such a relationship, however, did not exist between the condominium owner and the condominium community .