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Emergency service, locking plan - judgments about living, building and financing
Emergency service, locking plan - judgments about living, building and financing
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Several cases end up in court every day. The topics are as different as the opinions on them. Read here who needs to pay the emergency service in a residential complex and whether construction defects can be deducted from the tax authorities.

Who pays the emergency service?

If the owner of a residential complex engages an emergency service that accepts and processes emergency calls outside of the building management's business hours, then he must pay the costs himself. He cannot transfer the flat rate to the tenants. (Berlin-Charlottenburg District Court, file number 215 C 311/17)

The case: It can always happen that emergency situations such as water damage occur in a residential complex at night, in the early morning or on Sundays and public holidays. In such cases, the tenants need a contact person to whom they can report this. Therefore, a property owner in Berlin decided to entrust an emergency service with it for a flat rate. Nobody complained about that either. A problem only came up when this fee appeared in the service charge statement. In contrast, the tenants protested. They believed that they were not responsible for this.

The verdict: The Charlottenburg district court agreed to the tenants' legal opinion. Such an emergency service mainly serves the interests of the owner, because it ensures that “measures that are technically and cost-effectively approved are taken”. Otherwise, one would have to assume that the tenants would take matters into their own hands. The flat rate is part of the administrative costs, which are generally not allocable.

Handwerker repariert Wasserschaden
Handwerker repariert Wasserschaden

The Charlottenburg District Court ruled that the owner had to pay for the emergency service.

Photo: iStock / monkeybusinessimages

Who has the right to the locking plan?

Even without an express contractual agreement, a developer must hand over the locking card and locking plan of a residential complex to the owner community. This is a so-called ancillary obligation of the construction contract. (Stuttgart Higher Regional Court, file number 3 U 98/16)

The case: locking plan and card can become extremely important in the everyday life of a residential complex. This is when a key is lost or is to be copied for other reasons. However, this is not possible without these documents. A community of owners and the responsible property developer could not agree that the plan and map had to be handed over. Because of this, the WEG litigated against this company and tried to force the court to hand it over. In view of the dispute, the developer only offered to destroy the documents.

The verdict: In the second instance, the OLG Stuttgart decided that the locking plan and card should be handed over to the community of owners. That is the competent authority. The reason: "It is in the interest of all owners that duplicate keys cannot be made by every apartment owner, but at most by the administrator." Destruction is out of the question, since this would violate the bullying prohibition of the Civil Code.

Construction defect remediation is not tax deductible after limitation

Anyone who has to make expenditures in order to remedy damage caused by construction defects must not hope that these expenditures will be recognized as an extraordinary burden. This was decided by the highest tax authority in Germany. (Federal Finance Court, file number VI B 106/17)

The case: An owner was forced to repair damage to his own apartment that resulted from construction defects. He could no longer assert claims for compensation against third parties because the statute of limitations had already expired. He asserted an extraordinary charge against the tax authorities because his basic necessities - housing - were affected and there were no indications of his own fault. He thus meets the legal requirements for tax recognition of these expenses.

The verdict: The Federal Fiscal Court thus argued that an extraordinary burden is “fundamentally” not possible in this case. The only exception to this is if expenses have to be incurred to avert specific health risks for apartment owners. However, this usually has nothing to do with the usual construction defects. In view of the existing damage, the use of the building for residential purposes was also not in elementary question.

Finanzamt
Finanzamt

Construction defects may not be reported to the tax office.

Photo: Björn / Wylezich / Fotolia

Unsuccessful protest against undertaker

The case: A stationery is generally considered a pleasant neighbor. The sale of paper, envelopes, calendars and writing implements does not cause any noise or smells, the usual opening times are hardly exceeded and the customers are not known to cause greater unrest. Therefore, the residents were not exactly thrilled when they learned that the responsible district had accepted a change in use in the building permit. Instead of the stationery, a funeral home was suddenly planned. The neighbors complained. Such a trade does not fit in a residential area and there are also health risks due to the storage of corpses.

The verdict: After informing the law and tax information service of the LBS, the neighbors failed. First, one has to speak of a mixed, residential, village and, to a certain extent, core area in the area and not of a pure residential area. Second, there is no evidence that the proper operation of a funeral home will result in mandatory violations of hygienic regulations.

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