Unkempt Greenery: The proprietor deliberately transformed the garden into an overgrown wilderness.
In a groundbreaking decision, the German Federal Court of Justice (BGH) has ruled that the co-ownership shares of two fractional owners in an allotment garden will be withdrawn due to neglect and breach of obligations. This case marks the first time such a situation has been addressed by case law.
The allotment garden in question is managed by the Garden Tenants' Association (GdWE), with the totality of the fractional owners having the status of an owner and being accountable to the association. According to the regulations of the partition declaration, the "allotment garden fractional community" is irrevocable, meaning the community itself is not able to exclude disturbing fractional owners.
The garden, unfortunately, fell into disrepair, with a leaking above-ground water tap, overgrown plants, a collapsed fence, a garden house in danger of collapsing, a dilapidated greenhouse, an inaccessible entrance door, and other damages. These conditions were the result of the defendants' negligence, as they have not been involved in the maintenance of their garden areas.
The owners' community, which includes an apartment owners' community (WEG), had established a usage regulation for the gardens, and the co-ownership shares in the garden plots come with associated rights and obligations. The community rules provide that "the rights of special use can be withdrawn like the residential ownership".
The owners' meeting decided to enforce claims for compensation for expenses and fees, as well as the proper management of the gardens. They also demanded the surrender of the defendants' rights of special use and empowered the property manager to enforce this judicially.
Dr. Olaf Zinke, an owner in the owners' community that includes gardens, commented on the decision, stating that it was necessary to ensure the community's interest in ending the persistent disturbance outweighs the defendant's seemingly negligible interest in the inherited garden portion. This satisfies the conditions for revocation, as the defendants have committed a serious breach of their obligations to other apartment owners or the community of apartment owners, making it no longer reasonable for the community to continue with them.
The competent local court ruled that the defendants are to be ordered to surrender their co-ownership share according to § 17 para. 1, para. 4 WEG, regardless of the fact that they are only fractional owners of a co-ownership share. This decision sets a precedent for future cases involving neglect and breach of obligations in allotment gardens.
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