The joy of a successful bathroom renovation can easily be clouded if water damage in the special property of one apartment owner leads to consequential damage in the special property of another apartment owner.
The ruling of the Federal Court of Justice: In the relationship between owners of separate property (or their tenants), the affected owner or tenant may be entitled to claim compensation regardless of fault.
The case:
Water damage occurred in a commercially rented property unit, which also affected the property unit below it, which was also used for commercial purposes. The damage amounted to over €165,000.00. The insurance company of the aggrieved tenant covered the costs and then demanded compensation under subrogated rights after the claim had been settled.
The judgment of the Federal Court of Justice:
The insurance company was vindicated in all instances. The Federal Court of Justice also confirmed that if damage emanates from one special property to another special property, there is a no-fault claim for damages in accordance with § 906 (2) sentence 2 BGB.
It is therefore also not necessary to determine who caused the water damage and whether any of the parties involved was at fault. The Federal Court of Justice explains in this regard that, with regard to the relationship between owners of neighboring properties, it has long been recognized in case law that the affected property owner has a no-fault right to compensation in analogous application of § 906 para. 2 sentence 2 BGB and the same now also applies in the relationship between special property owners (or their tenants), because the special property is "genuine property" to which the apartment owner alone is entitled. Therefore, each owner can also exclude others from affecting it. Since the special property acts as a kind of replacement property, the apartment owners are to be treated in this respect like owners of neighboring properties
Practical tip
The practical significance of the judgment is particularly evident in the event of water damage within a condominium owners' association.
If the damage can be traced back to the common property, the previous ruling of the Federal Court of Justice (judgment of May 21, 2010, AZ: V ZR 10/10) remains in place, according to which the damaged owner must prove fault in order to successfully claim damages.
With the judgment described, the Federal Court of Justice clarifies that in the event that damages arise from the special property of a co-owner, in future claims for damages can be directed directly against the owner of the corresponding apartment– regardless of fault. In this case, the damaged owner of a condominium does not have to provide the difficult proof that the cause of the damage was negligently caused by an owner or the community (or the manager). Unfortunately, however, this difficult proof still has to be provided if the cause of the damage originates from the common property.
Reference:
BGH, judgment of October 25, 2013 – V ZR 230/12
previous:
LG Aachen – 19.12.2011 – 11 O 279/11
Cologne Higher Regional Court – September 11, 2012 – 3 U 7/12
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.