LEGAL

by attorney at law Patrick Burkhard


Contestation of resolutions of condominium owners' associations


If you own property in a condominium owners‘ association, meetings are held at least once a year at which resolutions are passed. You do not always have to agree with these and can take action against them. In principle, every condominium owner can challenge a resolution of the condominium owners‘ association if they have not agreed to this resolution. However, only resolutions of the condominium owners‘ association that violate the law or the articles of association can be contested. The defendant is always the condominium owners‘ association, not the individual owners. It should be noted that the time limit for contesting condominium owners‘ resolutions is short.

From the time at which the contesting condominium owner learns of the resolution, he has only one month to file a complaint with the competent conciliation authority. The deadline ends on the day of the following month that bears the same number as the date of notification. The deadline is met when the request for conciliation is posted. For example, if a condominium owner attends the meeting on 4 May, he must send the request for conciliation on 4 June.

The Federal Supreme Court (judgement 5A_21/2023 of 7 February 2024) has now decided what happens if the condominium owner does not attend the meeting but allows himself to be represented. The condominium owners were represented by the administrator at the meeting held on 21 March 2016. The request for arbitration was received by the Office of the Justice of the Peace on 13 May 2016, with the plaintiffs relying on the date on which they were informed, i.e. the date on which the minutes were delivered. The Federal Supreme Court ruled too late and thus followed the decision of the lower courts. Anyone who validly authorises another person to carry out a legal transaction on their behalf, i.e. grants a power of attorney, is thereby authorised and bound themselves. If a condominium owner is represented at a meeting, it is therefore not the represented condominium owner’s knowledge of the resolution to be contested that is decisive for the calculation of the contestation period, but that of the representative. To be on the safe side, the date of the meeting should therefore always be taken as the starting point when contesting a condominium owners‘ resolution.